Gambino v. United States, No. 226

CourtUnited States Supreme Court
Writing for the CourtBRANDEIS
Citation275 U.S. 310,72 L.Ed. 293,48 S.Ct. 137,52 A.L.R. 1381
Decision Date12 December 1927
Docket NumberNo. 226
PartiesGAMBINO et al. v. UNITED STATES

275 U.S. 310
48 S.Ct. 137
72 L.Ed. 293
GAMBINO et al.

v.

UNITED STATES.

No. 226.
Argued Oct. 12 and 13, 1927.
Decided Dec. 12, 1927.

Mr. Irving K. Baxter, of Utica, N. Y., for petitioners.

Page 311

The Attorney General and Mrs. Mabel Walker Willebrandt, Asst. Atty. Gen., for the United States.

[Argument of Counsel from page 311 intentionally omitted]

Page 312

Mr. Justice BRANDEIS delivered the opinion of the Court.

On August 1, 1924, Gambino and Lima were arrested by two New York state troopers, near the Canadian border; their automobile within the protection accorded to his person) within the protestion accorded to his person) was searched without a warrant, and intoxicating liquor found therein was seized. They, the liquor and other

Page 313

property taken, were immediately turned over to a federal deputy collector of customs for prosecution in the federal court for northern New York. There the defendants were promptly indicted for conspiracy to import and transport liquor in violation of the National Prohibition Act (27 USCA). They moved seasonably, in advance of the trial and again later, for the suppression of the liquor as evidence and for its return, on the ground that the arrest, the search, and the seizure were without a warrant and without probable cause, in violation of the Fourth, Fifth, and Sixth Amendments of the federal Constitution. The motion was denied; the evidence was introduced at the trial; the defendants were found guilty; and they were sentenced to fine and imprisonment. the Circuit Court of Appeals affirmed the judgment. Neither court delivered an opinion. This court granted a writ of certiorari. 274 U. § 733, 47 S. Ct. 766, 71 L. Ed. 1330.

The government contends that the evidence was admissible, because there was probable cause (Carroll v. United States, 267 U. S. 132, 153, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790), and also because it was not shown that the state troopers were, at the time of the arrest, search, and seizure, agents of the United States. The defendants contend that there was not probable cause, and that the state troopers are to be deemed agents of the United States, because section 26 of title 2 of the National Prohibition Act (27 USCA § 40) imposes the duty of arrest and seizure where liquor is being illegally transported, not only upon the Commissioner of Internal Revenue, his assistants and inspectors, but also upon 'any officer of the law.' We are of opinion on the facts, which it is unnecessary to detail, that there was not probable cause. We are also of opinion that the term 'any officer of the law,' used in section 26, refers only to federal officers, and that the troopers were not at the time of the arrest and seizure, agents of the United States. Compare Dodge v. United States, 272 U. S. 530, 531, 47 S. Ct. 191, 71 L. Ed. 392.

Page 314

But National Prohibition Act Oct. 28, 1919, c. 85, tit. 2, § 2, 41 Stat. 305, 308 (27 USCA § 11), contemplated some co-operation between the state and the federal governments in the enforcement of the act. Thus section 2 made applicable the provisions of section 1014 of the Revised Statutes (18 USCA § 591), whereby state magistrates were authorized, 'agreeably to the usual mode of process against offenders in such state, and at the expense of the United States,' to arrest and imprison, or bail, offenders against any law of the United States for trial before the federal court, and to require 'recognizances of witnesses for their appearance to testify in the case.' Section 2 also gave specific authority to the state magistrates to issue search warrants under the limitation fixed by the federal statutes. Act June 15, 1917, c. 30, tit. 11, 40 Stat. 217, 228 (18 USCA § 611 et seq.). Evidence obtained through wrongful search and seizure by state officers who are co-operating with federal officials must be excluded. See Flagg v. United States (C. C. A.) 233 F. 481, 483, approved in Silverthorne v. United States, 251 U. S. 385, 392, 40 S. Ct. 182, 64 L. Ed. 319. In Byars v. United States, 273 U. S. 28, 34, 47 S. Ct. 248, 71 L. Ed. 520, evidence obtained by state officers through search and seizure, made without a warrant and without probable cause, but in the presence of a federal official, was held inadmissible. The question here is whether, although the state troopers were not agents of the United States, their relation to the federal prosecution was such as to require the exclusion of the evidence wrongfully obtained.

The Mullan-Gage Law-the state prohibition act-had been repealed in 1923. Act June 1, 1923, c. 871; Laws N. Y. 1923, p. 1690. There is no suggestion that the defendants were committing, at the time of the arrest, search, and seizure, any state offense, or that they had done so in the past, or that the troopers believed that they had. Unless the troopers were authorized to make the arrest, search, and seizure, because they were aiding in the enforcement of a law of the United States, their action

Page 315

would clearly have been wrongful, even if they had had positive knowledge that the defendants were violating the federal law. No federal official was present at the search and seizure, and the defendants made no attempt to establish that the particular search and seizure was made in co-operation with federal officials. But facts of which we take judicial notice (compare Tempel v. United States, 248 U. S. 121, 130, 39 S. Ct. 56, 63 L. Ed. 162), make it clear that the state troopers believed that they were required by law to aid in enforcing the National Prohibition Act, and that they made this arrest, search, and seizure, in the...

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191 practice notes
  • Kroska v. United States, No. 9002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 25, 1931
    ...S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Go-Bart Importing Co. v. ......
  • State v. Santiago, No. 30,953.
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 31, 2009
    ...of the security guards' conduct. See United States v. Gumerlock, 590 F.2d 794, 800 n. 19 (9th Cir.1979) ("Gambino [v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927)] did not involve a unilateral private purpose to assist the government. Rather, state and federal officials ha......
  • State v. Boyd, No. 17719.
    • United States
    • Supreme Court of Connecticut
    • April 27, 2010
    ...in illegal search conducted by state officials rendered evidence inadmissible in federal criminal proceeding), Gambino v. United States, 275 U.S. 310, 316-17, 48 S.Ct. 137, 72 L.Ed. 293 (1927) (when unconstitutional search and seizure was made solely for purpose of aiding United States in e......
  • United States v. Davis, No. 71-2993.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 29, 1973
    ...Private Assumption of the Police Function under the Fourth Amendment, 51 B.U.L.Rev. 464, 473 (1971), discussing Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927); see also Corngold v. United States, 367 F.2d 1, 5-6 (9th Cir. 30 Justice Harlan's first condition would ......
  • Request a trial to view additional results
191 cases
  • Kroska v. United States, No. 9002.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 25, 1931
    ...S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Go-Bart Importing Co. v. ......
  • State v. Santiago, No. 30,953.
    • United States
    • New Mexico Supreme Court of New Mexico
    • August 31, 2009
    ...of the security guards' conduct. See United States v. Gumerlock, 590 F.2d 794, 800 n. 19 (9th Cir.1979) ("Gambino [v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927)] did not involve a unilateral private purpose to assist the government. Rather, state and federal officia......
  • State v. Boyd, No. 17719.
    • United States
    • Supreme Court of Connecticut
    • April 27, 2010
    ...in illegal search conducted by state officials rendered evidence inadmissible in federal criminal proceeding), Gambino v. United States, 275 U.S. 310, 316-17, 48 S.Ct. 137, 72 L.Ed. 293 (1927) (when unconstitutional search and seizure was made solely for purpose of aiding United States in e......
  • United States v. Davis, No. 71-2993.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 29, 1973
    ...Private Assumption of the Police Function under the Fourth Amendment, 51 B.U.L.Rev. 464, 473 (1971), discussing Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927); see also Corngold v. United States, 367 F.2d 1, 5-6 (9th Cir. 30 Justice Harlan's first condition would ......
  • Request a trial to view additional results

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