357 U.S. 480 (1958), 549, Giordenello v. United States

Docket Nº:No. 549
Citation:357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503
Party Name:Giordenello v. United States
Case Date:June 30, 1958
Court:United States Supreme Court

Page 480

357 U.S. 480 (1958)

78 S.Ct. 1245, 2 L.Ed.2d 1503



United States

No. 549

United States Supreme Court

June 30, 1958

Argued May 21, 1958




With no indictment and on his own complaint, a federal officer obtained a warrant for petitioner's arrest, but obtained no search warrant. His complaint was not based on his personal knowledge, did not indicate the source of his belief that petitioner had committed a crime, and set forth no other sufficient basis for a finding of probable cause. With this warrant, he arrested petitioner and seized narcotics in his possession. The arrest and seizure were not challenged at petitioner's arraignment, but a motion to suppress the use of the narcotics in evidence was made and denied before his trial. They were admitted in evidence at his trial in a federal district court, and he was convicted.

Held: The arrest and seizure were illegal, the narcotics should not have been admitted in evidence, and petitioner's conviction must be set aside. Pp. 481-488.

1. By waiving preliminary examination before the Commissioner, petitioner did not surrender his right to contest in court the validity of the warrant on the grounds here asserted. Pp. 483-484.

2. Under Rules 3 and 4 of the Federal Rules of Criminal Procedure, read in the light of the Fourth Amendment, probable cause was not shown by the complaint, and the warrant for arrest was issued illegally. Pp. 484-487.

3. Having relied entirely in the courts below on the validity of the warrant, the Government cannot contend in this Court that the arrest was justified apart from the warrant, because the arresting officer had probable cause to believe that petitioner had committed a felony; nor should the case be sent back to the District Court for a special hearing on the issue of probable cause. Pp. 487-488.

241 F.2d 575 reversed.

Page 481

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

Petitioner was convicted of the unlawful purchase of narcotics, see 26 U.S.C. (Supp. V) § 4704, after a trial without a jury before the Federal District Court for the Southern District of Texas. A divided Court of Appeals affirmed. 241 F.2d 575. We granted certiorari to consider petitioner's challenge to the legality of his arrest and the admissibility in evidence of the narcotics seized from his person at the time of the arrest. 355 U.S. 811.

Agent Finley of the Federal Bureau of Narcotics obtained a warrant for the arrest of petitioner from the United States Commissioner in Houston, Texas, on January 26, 1956. This warrant, issued under Rules 3 and 4 of the Federal Rules of Criminal Procedure (see note 3, infra), was based on a written complaint, sworn to by Finley, which read in part:

The undersigned complainant [Finley] being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.

[78 S.Ct. 1248]

And the complainant further states that he believes that ______ _______ are material witnesses in relation to this charge.

About 6 o'clock in the afternoon of the following day, January 27, Finley saw petitioner drive up to his residence in a car and enter the house. He emerged shortly

Page 482

thereafter and drove away in the same car, closely followed in a second car by a person described by Finley as a "well-known police character." Finley pursued the cars until they stopped near another residence which was entered by petitioner. When petitioner left this residence, carrying a brown paper bag in his hand, and proceeded towards his car, Finley executed the arrest warrant and seized the bag, which proved to contain a mixture of heroin and other substances. Although warned of his privilege to remain silent, petitioner promptly admitted purchasing the heroin in Chicago and transporting it to Houston.

On January 28, petitioner appeared with counsel before a United States Commissioner. He waived the preliminary examination contemplated by Rule 5 of the Rules of Criminal Procedure, see p. 483, infra, and was arraigned on the complaint upon which the arrest warrant had been issued on January 26.1 Prior to trial, petitioner, alleging for the first time that his arrest and the coincident seizure from his person of the paper bag were illegal, moved to suppress for use as evidence the heroin found in the bag. This motion was denied by the District Court, and petitioner's conviction and its affirmance by the Court of Appeals followed.

In this Court, petitioner argues, as he did below, that Finley's seizure of the heroin was unlawful, since the warrant of arrest was illegal and the seizure could be justified only as incident to a legal arrest, and that, consequently, the admission of the heroin into evidence was

Page 483

error which requires that his conviction be set aside. The Government contends that petitioner waived his right to challenge the legality of his arrest, and hence to object to the admissibility of this evidence, by failing to question the sufficiency of the warrant at the time he was brought before the United States Commissioner. It further asserts that the arrest warrant satisfied the Federal Rules of Criminal Procedure, and, alternatively, that the arrest can be sustained apart from the warrant because Finley had probable cause to believe that petitioner had committed a felony. The Government recognizes that, since Finley had no search warrant, the heroin was admissible in evidence only if its seizure was incident to a lawful arrest, see United States v. Rabinowitz, 339 U.S. 56, 60, and that, if the arrest was illegal, the admission of this evidence was reversible error.


We think it clear that petitioner, by waiving preliminary examination before the United States Commissioner, did not surrender his right subsequently to contest in...

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