361 U.S. 98 (1959), 17, Henry v. United States

Docket Nº:No. 17
Citation:361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134
Party Name:Henry v. United States
Case Date:November 23, 1959
Court:United States Supreme Court

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361 U.S. 98 (1959)

80 S.Ct. 168, 4 L.Ed.2d 134



United States

No. 17

United States Supreme Court

Nov. 23, 1959

Argued October 20-21, 1959




Without a warrant for search or arrest, federal officers who were investigating a theft from an interstate shipment of whiskey twice observed cartons being placed in a motor car in a residential district, followed and stopped the car, arrested petitioner and another man who were in it, searched the car, and found and seized cartons containing radios stolen from an interstate shipment. At petitioner's trial for unlawfully possessing radios stolen from an interstate shipment, his timely motion to suppress the evidence so seized was overruled, and he was convicted.

Held: on the record in this case, the officers did not have probable cause for the arrest when they stopped the car; the search was illegal; the articles seized were not admissible in evidence; and the conviction is reversed. Pp. 98-104.

259 F.2d 725 reversed.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner stands convicted of unlawfully possessing three cartons of radios valued at more than $100 which had been stolen from an interstate shipment. See 18 U.S.C. § 659. The issue in the case is whether there was probable cause for the arrest leading to the search that produced the evidence on which the conviction rests. A timely motion to suppress the evidence was made by

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petitioner and overruled by the District Court; and the judgment of conviction was affirmed by the Court of Appeals on a divided vote. 259 F.2d 725. The case is here on a petition for a writ of certiorari, 359 U.S. 904.

There was a theft from an interstate shipment of whiskey at a terminal in Chicago. The next day, two FBI agents were in the neighborhood investigating it. They saw petitioner and one Pierotti walk across a street from a tavern and get into an automobile. The agents had been given, by the employer of Pierotti, information of an undisclosed nature "concerning the implication of the defendant Pierotti with interstate shipments." But, so far as the record shows, he never went so far as to tell the agents he suspected Pierotti of any such thefts. The agents followed the car and saw it enter an alley and stop. Petitioner got out of the car, entered a gangway leading to residential premises, and returned in a few minutes with some cartons. He placed them in the car, and he and Pierotti drove off. The agents were unable to follow the car. But later they found it parked at the same place near the tavern. Shortly, they saw petitioner and Pierotti leave the tavern, get into the car, and drive off. The car stopped in the same alley as before; petitioner entered the same gangway and returned with more cartons. The agents observed this transaction from a distance of some 300 feet, and could not determine the size, number or contents of the cartons. As the car drove off the agents followed it and finally, when they met it, waved it to a stop. As he got out of the car, petitioner was heard to say, "Hold it; it is the G's." This was followed by, "Tell him he [you] just picked me up." The agents searched the car, placed the cartons (which bore the name "Admiral" and were addressed to an out-of-state company) in their car, took the merchandise and petitioner and Pierotti to their office and held them for about two hours when the agents learned that the cartons contained

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stolen radios. They then placed the men under formal arrest.

[80 S.Ct. 170] The statutory authority of FBI officers and agents to make felony arrests without a warrant is restricted to offenses committed "in their presence" or to instances where they have "reasonable grounds to believe that the person to be arrested has committed or is committing" a felony. 18 U.S.C. § 3052. The statute states the constitutional standard, for it is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except

upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The requirement of probable cause has roots that are deep in our history. The general warrant,1 in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed,2 both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of "probable cause" before a magistrate was required. The Virginia Declaration of Rights, adopted June 12, 1776, rebelled against that practice:

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

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The Maryland Declaration of Rights (1776), Art. XXIII, was equally emphatic:

That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants -- to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special -- are illegal, and ought not to be granted.

And see North Carolina Declaration of Rights (1776), Art. XI; Pennsylvania Constitution (1776), Art. X; Massachusetts Constitution (1780), Pt. I, Art. XIV.

That philosophy later was reflected in the Fourth Amendment. And as the early American decisions both before3 and immediately after4 its adoption show, common rumor or report, suspicion, or even "strong reason to suspect"5 was not adequate to support a warrant for arrest. And that principle has survived to this day. See United States v. Di Re, 332 U.S. 581, 593-595; Johnson v. United States, 333 U.S. 10, 13-15; Giordenello v. United States, 357 U.S. 480, 486. Its high water was Johnson v. United States, supra, where the smell of opium coming from a closed room was not enough to support an arrest and search without a warrant. It was against this background that two scholars recently wrote, "Arrest on mere suspicion [80 S.Ct. 171] collides violently with the basic human right of liberty."6

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Evidence required to establish guilt is not necessary. Brinegar v. United States, 338 U.S. 160; Draper v. United States, 358 U.S. 307. On the other hand, good faith on the part of the arresting officers is not enough. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. Stacey v. Emery, 97 U.S. 642, 645. And see Director General v. Kastenbaum, 263 U.S. 25, 28; United States v. Di Re, supra, at 592; Giordenello v. United States, supra, at 486. It is important, we think, that this requirement be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. Carroll v. United States, 267 U.S. 132, 156. And while a search without a warrant is, without limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. Carroll v. United States, supra, at 155-156....

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