Park v. United States , 294 F. 776 ( 1924 )

ANDERSON, Circuit Judge

(dissenting). Neither with the majority opinion nor with the,result reached can I accord. My brethren seem to me to misinterpret the,record and to misapply the law. I think the case falls plainly within the rule laid down in the Weeks Case, 232 U. S. 383, 398, 34 Sup. Ct. 341, 346 (58 L. Ed. 652, L. R. A.1915B, 834, Ann. Cas. 1915C, 1177), that the evidence admitted was obtained by “an official of the United States acting under color of his office in direct violation of the constitutional rights of the” citizen.

A brief statement of the controlling facts will be enough to show how gross was the disregard of principles of personal liberty, supposed to be established beyond peradventure generations ago in all free countries.

At about 10:30 in the evening of February 8, 1923, Federal Prohibition Officer Ellingwood saw, coming into Portsmouth, a Cadillac roadster with a Massachusetts license number, carrying two men. The men were sober. The car was being driven in an orderly and usual way, well within the speed limit. The men alighted and went into a hotel. Ellingwood noted that the rear of the car sagged, shook the car, and thought it gurgled as though it had liquor or cans containing liquor. Parenthetically, it may be noted that such gurgling would be far more likely to come from a partially empty gasoline tank than from cans of alcohol, which, as the event showed, were actually in this car. When the men came out of the hotel, Ellingwood asked Park if it was his car. Park said it was. Ellingwood then asked him what he had in the car, and Park said he had nothing. Ellingwood thereupon said he wished to search it. Park objected, and asked if Ellingwood had a search warrant; to which the latter replied in the negative. After several refusals by Park to produce the keys and permit the search of his car, this federal officer,' acting in collaboration with Portsmouth police officers, whose help he had invoked, arrested Park and his companion, one Leary, and took them and Park’s automobile to the police station. Either on the way to the station, or after reaching it (the evidence states it both ways), Park admitted that he had alcohol in the car. At the police station Park’s hands were pinioned behind his back, and against his objection his pockets were searched, and he was then locked up. His companion was treated in like fashion. After such arrest and search of Park and his companion, and seizure of his automobile, the keys to the automobile were-found in the switch lock; the car was then unlocked, and for the first time the officers made an actual discovery of the presence therein of alcohol.

It is indisputable that the proceedings were initiated and throughout substantially controlled by Ellingwood, the federal officer. The responsibility for this proceeding rests on federal, not upon New Hampshire, officials. I do not mean that I concur in the interpretation made by my brethren of the New Hampshire statutes and cases; apart from one or two rather loose dicta, I think the law there accords with the rulings in all jurisdictions where common law principles obtain. But on the facts in this case, to hold, as the majority hold, that the defendant is not entitled to the protection of the Fourth Amendment, is, as laid down by Mr. Justice Holmes in Silverthorne v. United States, 251 U. S. 385, 392, 40 Sup. Ct. 182, 183, 64 L. Ed. 319, to reduce “the Fourth Amendment to a form of words”; or, as put by Mr. Justice Day in Weeks v. United States, 232 U. S. 383, 393, 34 Sup. Ct. 341, 344 (58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177), if evidence obtained on such arrest and search both of the person and automobile can be “used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment, declaring his right to be secure against srtch searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.”

Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159, lends no support to the majority opinion. But the vigorous dissent of Justices Brandéis and Holmes warns us against extension by judicial construction of the dangerous practice of law enforcement by lawless or immoral methods.

The principles involved are of sufficient importance to warrant brief analysis of' the situation and reference to some of the chief authorities. Of course, the offense of illegal transportation of liquor is a continuing misdemeanor; it is no felony. Taking the facts in their aspect most favorable to the government’s contention, it is clear that the federal officer and the assisting Portsmouth police officers had, when they arrested Park and seized his automobile, no more than reasonable ground for belief that Park was illegally transporting liquor in that automobile. They did not see, taste, or smell it, or otherwise discover it by their senses; they were not told of its presence by any one claiming knowledge; they did not act on information. Park denied the offense. The arrest preceded everything except (at most) reasonable ground to believe (perhaps only to suspect) that Park was then and there guilty of the misdemeanor of illegally transporting intoxicating liquor.

Now, whatever may have formerly been the rule (see Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed, 575), it is now settled that evidence obtained through an illegal arrest, search, or seizure by or with the assistance of federal officials is inadmissible (Gouled v. United States, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647; Amos v. United States, 255 U. S. 313, 41 Sup. Ct. 266, 65 L. Ed. 654; Silverthorne v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Giles v. United States (C. C. A.) 284 Fed. 208; Snyder v. United States (C. C. A.) 285 Fed. 1; United States v. Slusser [D. C.] 270 Fed. 818; Murby v. United States, 293 Fed. 849, decided by this court on December 11, 1923).

The gist of this case, then, is whether reasonable ground to believe was enough to justify Federal Officer Ellingwood and his assisting police officers in arresting Park for a misdemeanor, not a breach of the peace, and in seizing and later searching his automobile and thereafter seizing the alcohol therein — all without warrant, either for the arrest or for the seizure and subsequent search.

First, as to the common law: In Kurtz v. Moffitt, 115 U. S. 487, 498 6 Sup. Ct. 148, 152 (29 L. Ed. 458), Mr. Justice Gray said:

“By the common law of England, neither a civil officer nor a private citizen had the right without a warrant to make an arrest for a crime not committed in his presence, except in the case of felony, and then only for the purpose of bringing the offender before a civil magistrate. 1 Hale, P. C. 587-590; 2 Hale, P. C. 76-81; 4 Bl. Com. 292, 293, 296; Wright v. Court, 6 D. & R. 623; s. c., 4 B. & C. 596. No crime was considered a felony which did not occasion <a total forfeiture of the offender’s lands, or goods, or both. 4 Bl. Com. 94, 95; Ex parte Wilson, 114 U. S. 417, 423.”

The same doctrine is repeated in Elk v. United States, 177 U. S. 529, 534, 20 Sup. Ct. 729, 731 (44 L. Ed. 874), where Mr. Justice Peckham says;

“So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in Ms presence. 1 Arch. Crim. Pr. & Pl. (7th Am. Ed.) 103, note (1); also page 861 and following pages; 2 Hawk. P. C. 129, § 8; 3 Russell on Crimes (6th Ed.) 83, 84, 97; 1 Chitty’s Crim. L. *15; 1 East, P. C. c. 5, p. 328; Derecourt v. Corbishley, 5 E. & B. 188; Fox v. Gaunt, 3 B. & Ad. 798; Reg. v. Chapman, 12 Cox’s Crim. Cas. 4; Rafferty v. The People, 69 Ill. 111; s. c., on a subsequent writ, 72 Ill. 37.”

Commonwealth v. Wright, 158 Mass. 149, 158, 33 N. E. 82, 85 (19 L. R. A. 206, 35 Am. St. Rep. 475) was a controversy arising out of (lie arrest by a district police officer of certain persons charged with having short lobsters. The court, by Field, C. J., said:

“It is suggested that the statutory misdemeanor of having in one’s possession short lobsters with intent to sell them is a continuing offense, which is being committed while such possession continues, and that therefore an officer who sees any person in ims-session of such lobsters with intent to sell them can arrest such person without a warrant, as for a misdemeanor committed in Ms presence. We are of opinion, however, that for statutory misdemeanors of ihis kind, not amouniing to a breach of the peace, there is no authority in an officer to arrest without a warrant, unless it is given by statute. McLennon v. Richardson, 15 Gray, 74: Commonwealth v. O’Connor, 7 Allen, 583: Scott v. Eldridge, 154 Mass. 25 ; People v. McLean, 68 Mich. 480: 1 Bennett & Heard’s Heading Cas. 201; 1 Bish. Crim. Proc. (3d Ed.) §§ 166-183; Commonwealth v. Tobin, 108 Mass. 426. The Legislature has often empowered officers to arrest without a warrant for similar offenses, which perhaps tends to show that, in its opinion, no such right exists at common law. See, for example. St. 1886, c. 276, § 8; Pub. St. c. 100, § 43; chapter 203, §§ 100, 104; chapter 207, §§ 41 and 43.”

Compare G. L. Mass. c. 138, § 75.

In Kellam’s Case, 55 Kan. 700, 41 Pac. 960, it was held that a statute conferring authority upon police officers to arrest for misdemeanors not committed in their presence was unconstitutional. The court said (55 Kan. 702, 41 Pac. 961): ”

“The powers of officers to make arrests have been extended to some extent by statutes but it is generally held that officers cannot be constitutionally clothed with authority to arrest without warrant for minor offenses not committed in their presence or view. Pinkerton v. Verberg, 78 Mich. 573; Robison v. Miner, 68 Id. 549; Shanley v. Wells, 71 Ill. 78; Jamison v. Gaernett, 10 Bush. 221; The State v. Freeman, 86 N. C. 683; Doering v. The State, 49 Ind. 56; 11 Cent. L. J. 331; 1 Am. & Eng. Encyc. of Law, 732 ; 7 Am. & Eng. Encyc. of Law, 675.

“In considering the question of an officer making an arrest without a warrant for a misdemeanor committed at a past time, the Supreme Court of Michigan said:

“ ‘Any law which would place the keeping and safe conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees. These are rights which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land.’ Pinkerton v. Verberg, supra.

“In the game case it was said:

“ ‘if persons can be restrained of their liberty and assaulted and imprisoned under such circumstances, without complaint or warrant, then there is no limit to the power of a police officer.’ ’"

See, also, State v. Gleason, 32 Kan. 245, 4 Pac. 363; Cooley’s Const. Lim. 364, and notes.

In 5 C. J. 401, § 31, it is laid down:

“It is the general rule tliat an officer lias no authority whatever to arrest for a misdemeanor without a warrant, unless the offense is committed in his .presence; nor can he arrest without a warrant for a misdemeanor which ■does not’ amount to a breach of the peace, although committed in his presence.”

As to what constitutes “in the presence of,” see 5 C. J. p. 416, § 45. This term has been held synonymous with “immediate knowledge.” See Peidmont Hotel v. Henderson, 9 Ga. App. 672, 72 S. E. 51. See, also, People v. Johnson, 86 Mich. 175, 48 N. W. 870, 13 L. R. A. 163 and notes, 24 Am. St. Rep. 116.

It is unquestionable that, on common-law doctrines, the proceedings in Park’s Case cannot be justified.

Has the common law rule been changed by statute? Section 26 of the Prohibition Act, so far as now pertinent, reads:

“ When * * * any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any * * * automobile, * * * it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the * * * automobile, * * * and shall arrest any person in charge thereof.”

I cannot construe the words “shall discover in the act,” etc., as meaning “shall have reasonable cause to suspect or believe.” To discover means to find out by sense perception, not to infer from a chain "of evidence, or to believe on the basis of information received. Nor does this statute warrant arrest of the person in charge, before discovery, by sense perception, of the illegal transportation.

■ The section contemplates: (1) Discovery of the offense, that is, the commission of the misdemeanor in the presence of the officer; (2) seizure of the outlawed liquor and the vehicle; (3) the arrest of the person in charge thereof.

In this case, the order was (1) Park’s arrest on mere suspicion, or at most reasonable • belief; (2) seizure of the automobile without a search warrant and against Parkis protest; (3) and, as the result of Park’s arrest and seizure and search of his automobile, discovery of the illegal transportation.

My views accord with those expressed by the Circuit Court of Appeals for the Fourth Circuit in Snyder v. United States, 285 Fed. 1, where the rule was stated as follows:

“That an officer may not make an arrest for a misdemeanor not committed in his presence, without a warrant, has been so frequently decided as not to require citation of authority. It is equally fundamental that a citizen may not be arrested on suspicion of having committed a misdemeanor and have his person searched by force, without a warrant. * * * If, therefore, the ■arresting officer in this case had no other justification for the arrest than the mere suspicion that a bottle, only the neck of which he could see protruding from the pocket of defendant’s coat, contained intoxicating liquor, then it would seem to follow without much question that the arrest and search, without first having secured a warrant, were illegal. And that his only justification was his suspicion is admitted by the evidence of the arresting officer himself. If the bottle had been empty or if it had contained any.one of a dozen innoxious liquids, the act of the officer would, admittedly, have been an •unlawful invasion of the personal liberty of the defendant. That it happened in this instance to contain whisky, we think, neither justified the assault nor condemns the principle which makes such an act unlawful.”

Even in the opinion of Circuit Judge Woods, who, on the particular facts of that case dissented, propositions, conclusive against the government in this case, are stated:

“When an officer is authorized by statute to arrest for a misdemeanor committed in his presence or on discovering a person committing a misdemeanor, to justify arrest the officer must have personal knowledge acquired at tlie time through his hearing, sight, or other sense of the present commission of the crime by the accused. But this does not preclude the idea that the requisite knowledge may be based on a practically certain inference drawn by, a reasonable mind from the testimony of the senses. An offense is in the view of the officer when his senses afford him knowledge that it is being committed. Elrod v. Moss (C. C. A. 4th Circuit) 278 Fed. 130; Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S. E. 51; United States v. Borkowski (D. C.) 268 Fed. 408, 412 ; 5 C. J. 416; 84 Am. St. Rep. 686, note. Whether the offense was committed in the presence of the officer in this sense is primarily a question for the trial judge, and his finding should not he disturbed on appeal, unless it is without support in the evidence.

“But the arrest and search were illegal, and the testimony obtained thereby incompetent, because the federal prohibition officer had no authority to arrest without a warrant for the misdemeanor of having intoxicating liquor in his possession.

“At common law a peace officer was not authorized to make an arrest without warrant for any misdemeanor committed in his presence, except a breach of the peace. State v. Lutz, 85 W. Ta. 330, 101 S. E. 434, 489; 5 C. J. 401, and cases cited.”

If Congress had intended by this statute (sedion 26, supra) to authorize arrests without warrant on a reasonable belief or suspicion that a misdemeanor was then and there being committed in the presence of the officer, it would have used the apt and familiar words to state that purpose. The many trained lawyers in Congress were familiar with the doctrine laid down in Sarah Way’s Case, 41 Mich. 304, 1 N. W. 1023, by Mr. Justice Campbell in the following words:

“It must not be forgotten that there can be no arrest without due process of law. An arrest without warrant has never been lawful, except in those cases where the public security requires it; and this has only been recognized, in felony, and in breach of the peace committed in presence" of the officer. Quinn v. Heisel, 40 Mich. 576; Drennan v. People, 10 Mich. 169.”

Compare Commonwealth v. Carey, 12 Cush. (Mass.) 246, 252; Jamison v. Gaernett, 10 Bush (Ky.) 221; State v. Slamon, 73 Vt. 212, 50 Atl. 1097, 87 Am. St. Rep. 711; North v. People, 139 Ill. 81, 28 N. E. 966; Commonwealth v. Wright, supra.

Nothing could be more idle than rhetoric about making a “man’s house his castle,” if in order to get evidence of a misdemeanor the government is to countenance arrests and search of persons and search and seizure of automobiles, without any warrant whatever, in the very teeth of the ‘Fourth Amendment. Compare the fourteenth article of the Massachusetts Bills of Rights, drawn by John Adams, who, as a young man, had listened to Otis arguing the case against the writs of assistance. Why trouble ourselves about informalities in the issuing and service of search warrants, if we are to train our police forces, on suspicion or belief, to arrest without any warrants our citizens, pinion their arms, search their pockets, seize their automobiles, and thus obtain evidence of the commission of a mere misdemeanor. Such decisions as this court has just made in the Murby Case, supra, are worthless, if such use of blanket procedure, without warrant, is to prevail.

We must not overlook the tremendous extent of the powers vested in police officers, if they are to be authorized to arrest, without warrant, for misdemeanors not breaches of the peace, and not committed in their actual presence. Under such circumstances, a policeman is made, in effect, prosecutor, judge, jury and executioner. No judge has any comparable power. P'or, arrest and imprisonment are, for all practical purposes, a severe punishment. Arrest alone involves, to the self-respecting citizen, intense humiliation, publicity, disgrace, mental suffering, injury to reputation, pain to family and friends, frequently additional great physical discomfort. And a citizen wrongfully arrested, whether imprisoned or not, has no real remedy. Suit for false arrest and imprisonment is generally but an aggravation of the damage done. This is generally recognized; such suits are too rare and too futile to operate as any real check on police lawlessness. Only the courts can make and keep our police forces law-abiding.

If we consider the situation from the standpoint of the guilty, even in such case, public arrest, perhaps .followed by imprisonment under the mere mandate of a police officer, is a disproportionate punishment for such statutory misdemeanor. Most modern Legislatures have recognized this by providing for issuing a summons, or for proceeding on an information rather than by arrest. The real ground for such legislation is that it was seen that an arrest, in and-of itself, was a punishment too severe for the offense committed.

Lawlessness by law-enforcing officials cuts up to the roots government that rests upon the consent of the governed.

This extension of police powers is being made by judicial ruling, not by congressional enactment, at a time when the task of organizing and maintaining an honest, law-abiding, and generally competent police force is infinitely harder than the country ever before faced. Not at any time or in any place, unless in some of the red-light districts in our cities, was the problem of getting and' keeping an honest police force so difficult as now. There are disturbing indications of blackmail, bribery, and corruption, as a result of the Prohibition Amendment. The situation is not likely in this respect to improve. For years, if not permanently, we shall inevitably have a large number of policemen or prohibition officers, however they be named, unfit for their jobs. —either out-and-out blackmailers, or ready to yield to the temptation of bribery. To permit arrest, search, and seizure without warrants, will tremendously increase the arrogance, the opportunities for blackmail, and the temptations to yield to bribery. Such methods will increase, hot decrease, the difficulties of prohibition enforcement.

Nor should it be overlooked that alcohol is not the only thing that intoxicates. Power is, to the average human being, at least as .intoxicating as alcohol. Historically, our Bills of Rights are limitations upon authority vested by governments in officials. These guaranties of personal liberty were attempts by our forefathers to protect citizens against the abuses growing out of the intoxication from official power. They were wise and necessary precautions. I think they should be maintained. Cf. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; Entick, etc., v. Carrington, 19 How. St. Tr. 1030.