Carroll v. United States , 45 S. Ct. 280 ( 1925 )

The separate opinion of

Mr. Justice McReynolds

concurred in by Mr. Justice Sutherland.

1. The damnable character of the “ bootlegger’s ” business should not close our eyes to the mischief which will surely, follow any attempt to destroy it by unwarranted methods. “To press forward to a great principle by breaking through every other great principle that stands in the way of its establishment; ... in short, to procure an eminent good by means that are unlawful, is as little consonant to private morality as to public justice.” Sir William Scott, The Louis, 2 Dodson 210, 257.

While quietly driving an ordinary automobile along a much frequented public road, plaintiffs in error were arrested by Federal officers without a warrant and upon mere suspicion — ill founded, as I think. The officers then searched the machine and discovered carefully secreted whisky, which was seized and thereafter used .as evidence against plaintiffs in error when on trial for transporting intoxicating liquor contrary to the Volstead Act (c. 85, 41 Stat. 305). They maintain that both arrest and seizure were unlawful and that use of the liquor as evidence violated their constitutional rights.

. This is not a proceeding to forfeit seized goods; nor is it an action against the seizing officer for a tort. Cases like the following are not controlling: Crowell v. M’Fadon, 8 Cranch 94, 98; United States v. 1960 Bags of Coffee, 8 Cranch 398, 403, 405; Otis v. Watkins, 9 Cranch 339; Gelston v. Hoyt, 3 Wheat. 246, 310, 318; Wood v. United States, 16 Pet. 342; Taylor v. United States, 3 How. 197, 205. They turned upon express provisions of applicable Acts of Congress; they did not involve the point now presented and afford little, if any, assistance toward its proper solution. The Volstead Act does not, in terms, authorize arrest or seizure upon mere suspicion. •

Whether the'officers are-shielded from prosecution, or action by Rev. Stat. Sec. 970 is not important. That section does not undertake to. deprive .the citizen of any constitutional right or to permit the’ use of evidence unlawfully obtained... It does, however, indicate the clear understanding of Congress that probable cause is not always enough to.justify a seizure.

Nor are we now concerned with the .question whether by apt words Congress might have, authorized the arrest without a warrant. It has not attempted, to do this. On the contrary, the whole history of the legislation indicates a fixed purpose not so to do. First and second violations are declared, to be misdemeanors — nothing, more — and Congress, of course, understood the rule concerning arrests for such offenses. Whether different penalties should have been prescribed or other provisions added is not for us to inquire; nor do difficulties attending enforcement give us power to supplement the legislation.

2. As the Volstead Act contains no definite grant of authority to arrest upon suspicion and without warrant for a first offense, we come to inquire whether such authority can be inferred from its provisions.

Unless the Statute which creates a misdemeanor contains somq clear provision to the contrary, suspicion that it is being violated will not justify an arrest. Criminal statutes must be strictly construed and applied, in harmony with rules of the .common law. United States v. Harris, 177 U. S. 305, 310. And the well settled doctrine is that an arrest for a misdemeanor may .not1 be made without a warrant unless the offense is committed in the officer’s presencé.

Kurtz v. Moffitt, 115 U. S. 487, 498—“ 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 thé offender before a civil magistrate.”

Elk v. United States, 177 U. S. 529, 534 — “An officer, at common law, was pot authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence.”

Commonwealth v. Wright, 158 Mass. 149, 158—“ It is suggested that the statutory misdemeanor of having in one’s possession short lobsters with intent to sell them is a continuing offence, which is being committed while such possession continues, and that therefore an officer who sees any person in possesssion of such lobsters with intent to sell them can arrest such person without a warrant, as for a misdemeanor committed in his presence. We are of opinion, however, that for statutory misdemeanors of this kind, not amounting to a breach of the peace, there is no authority in an officer to arrest without a warrant, unless it is given by statute. . . . The Legislature has often empowered officers to arrest without warrant for similar offenses, which perhaps tends to show that, in its opinion, no such right exists at common law.”

Pinkerton v. Verberg, 78 Mich. 573, 584—“ 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. ... If persons can be restrained of their liberty, and assaulted and imprisoned, under such circumstances, without complaint or warrant, then there is ho limit to the power of a police officer.”

3. The Volstead Act contains no provision which annuls the accepted common law rule or discloses definite intent to authorize arrests without warrant for misdemeanors not committed in the' officer’s presence;

To support the contrary view Section 26' is relied upon—

“ When . . . any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or. air craft, or other vehicle, 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 vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof.”

Let it be observed that this section has no special application to automobiles; it includes any vehicle — buggy, wagon, boat or air craft. Certainly, in a criminal statute, always to be strictly construed, the words “ shall discover . . : in the act of transporting in violation of the law ” cannot mean, shall have reasonable cause to suspect or believe that such transportation is being carried on. To discover and to' suspect are wholly different things. Since the beginning apt words have been used when Congress intended that arrests for misdemeanors or seizures might be made upon suspicion. It has studiously refrained from making a felony of the offense here charged; and it did not undertake by any apt words to enlarge the power to arrest. It was not ignorant of the established rule on the subject, and well understood how this could be abrogated, as plainly appears from statutes like the following: •“ An Act to. regulate the collection of duties on imports and tonnage,” approved March 2, 1789, c. 22, 1 Stat. 627, 677, 678; “ An Act to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage'of ships or vessels,” approved August 4, 1790, c; 35, 1 Stat. 145, 170; “An Act further to provide for the collection of duties on imports and tonnage,” approved March 3, 1815, c. 94, 3 Stat. 231, 232. These and similar Acts definitely-empowered officers to seize upon suspicion and therein radically differ from the Volstead Act, which authorized no such thing.

“An Act’supplemental to the National Prohibition Act,” approved November 23, 1921, c. 134, 42 Stat. 222, 223, provides—

“ That any officer, agent, of. employee of the United States engáged in the enforcement of this Act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be fined for a first offense not more than $1,000, and for a subsequent offense not more than $1,000 or imprisoned not more than one year, or both such fine and imprisonment.”

And it is argued that the words and history of this section indicate the intent of Congress to distinguish between the necessity for warrants in order to' search pri-' vate dwellings and the right to search automobiles without one. Evidently Congress regarded the searching of private dwellings as matter of much graver consequence than some' other searches and distinguished between them by declaring the former criminal. But the connection between this distinction and the legality of plaintiffs in error’s arrest is not apparent. Nor can I find reason for inquiring concerning the validity of the distinction under the Fourth Amendment. Of course, the distinction is valid, and so are some seizures. But what of it? The Act made nothing legal which theretofore was unlawful,' and to conclude that by declaring the unauthorized search of a private dwelling criminal Congress intended to remove ancient restrictions from, other searches and from arrests as well, would seem impossible.

While the Fourth Amendment denounces only unreasonable seizures, unreasonableness often depends upon the means adopted. Here the 'seizure followed, an unlawful arrest, and, therefore became itself unlawful — as plainly unlawful as the seizure within the home so vigorously' denounced in Weeks v. United States, 232 U. S. 383, 391, 392, 393.

In Snyder v. United States, 285 Fed. 1, 2, the Court of Appeals, Fourth Circuit, rejected evidence obtained' by an unwarranted arrest, and clearly announced some very wholesome doctrine: “That an officer may hot 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'á misdemeanor and have his person searched by force,- without a warrant of "arrest. 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 justifies the assault nor condemns the principle which makes such an act unlawful.”

The validity of the seizure under consideration depends on the legality of the arrest. This did not follow the seizure, but the reverse is true. Plaintiffs in error were first brought within the officers’ power, and, while therein, the seizure took place. If an officer, upon mere suspicion of a misdemeanor, may stop one on the public highway, take articles away from him and thereafter use them as evidence to convict him of crime, what becomes of the Fourth and Fifth Amendments?

In Weeks v. United States, supra, through Mr. Justice Day, this court said: “ The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints, as to the exercise of such power and. authority, and to forever secure the people* their persons, houses, papers and effects against all up-reasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty .of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement, of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental'rights. . . . The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.”

Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391: “ The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of. its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383, to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. 232 U. S. 393. The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.”

Gouled v. United States, 255 U. S. 298, and Amos v. United States, 255 U. S. 313, distinctly point out that property procured by unlawful action of Federal officers cannot be introduced as evidence. ■

The arrest of plaintiffs in error was unauthorized, illegal and violated the guarantee of due process given by the Fifth Amendment. The liquor offered in evidence was obtained by the search which followed this arrest and was therefore obtained in violatioñ of their constitutional rights. Articles found upon or in the control of one lawfully* arrested may be used as evidence for certain purposes, but not at all when secured by the unlawful action of a Federal officer.

4. The facts known by the officers who arrested' plaintiffs in error were wholly insufficient to create a reasonable belief that they were transporting liquor contrary to law.1 These facts were detailed by Fred Cronenwelt, chief prohibition officer. His entire testimony as given at the trial follows—

“ I am in charge of the Federal Prohibition Department in this District. I am acquainted with these two respondents, and first saw them on September 29, 1921, in Mr. Scully’s apartment on Oakes Street, Grand Rapids. There were three of them that carpe to Mr. Scully’s apartment, one by the name of Kruska, George Kiro and John Carroll. I was introduced to them under' the name of Stafford, and told them I was working for the Michigan Chair Company, and Wanted to buy three cases of whisky, and the price was agreed upon. After they thought I was all right, they said they would be back in half or three-quarters of an hour; that they had to go out to the east end of Grand Rapids, to get this liquor. They went away and came back in a short time, and Mr. Kruska came upstairs and said they couldn’t get it that night; that a fellow by the name of Irving, where they were going to get it, wasn’t in, but they were going to deliver it the next day, about ten. They didn’t deliver it the next day. I ami not positive about the price. It-"seems to me it was around $130 a case. It might be $135. Both respondents took part in this conversation. When they came to Mr. Scully’s apartment they had. this same car. While it was. dark and I wasn’t able to get a good look at this car, later, on the sixth day of October, when I was out on the road with Mr. Scully, I was waiting on the highway while he went.to Reed’s Lake to get a light lunch, and they drove by, and I had their license number and. the appearance of their car, and knowing the two boys, seeing them on the 29th day of September, I was satisfied when I seen the car on December 15th it was thé same car I had seen on the 6th day of October. On the 6th day of October it was probably twenty minutes before Scully got back 't.o where I was. I told him the Carroll boys had just gone toward Detroit and we were-trying to catch up with them and see where they were going. We did catch up with them somewhere along by Ada,’ just before we got to Ada, and followed them to East Lansing. We gave up the chase at East Lansing.

“ On the 15th of December, when Peterson and Scully and I overhauled this car on the road, it was in the country, on Pike 16, the road leading between Grand Rapids and Detroit. When we passed the car we were going toward Ionia, or Detroit, and the Kiro and Carroll boys were coming towards Grand Rapids .when Mr. Scully and I recognized them and said ‘ there goes the Carroll brothers/ and we went on still further in the same direction we were going and turned around and went back to them; drove up to the side of them. Mr. Scully was driving the car; I was sitting in the front seat, and I stepped out on the running board and held out my hand and said, ‘Carroll, stop that car/ and they did stop it. John Kiro was driving the car. After we got them stopped, we asked them to get out of the car, which they did. Carroll referred to me and called me by the name of ‘ Fred ’ just as- soon as I got up to him. Raised up the back part of the roadster; didn’t find any liquor there; then raised up the cushion; then I struck at the lazyback of the seat and it was hard. I then started to open it up, and I did tear the cushion some, and Carroll said, ‘ Don’t tear the cushion; we have only got six cases in there; ’ and I took out two bottles and found out it was liquor; satisfied it was liquor. Mr. Peterson and a fellow by thé name of Gerald Donker came in with the two Carroll boys and the liquor and the car to Grand Rapids. They brought the' two defendants and the car and the liquor to Grand Rapids. I and the other men besides Peterson stayéd out on the road, looking for other cars that we had information were coming in. There was conversation between me and Carroll before Peterson started for town with the defendants. Mr. Carroll said, 'Take the liquor and give us one more chance and I will make it right with you/ At the same time he reached in one of his trousers pockets and pulled out money; the amount of it I don’t know. I wouldn’t say it was a whole lot. I saw a ten dollar bill and there was some other bills; I don’t know how much there was; it wasn’t a large amount.

“As I understand, Mr. Hanley helped carry the liquor from the car. On the next day afterwards, we put this liquor in boxes, steel boxes, and left it in the Marshal’s vault, and it is still there now. Mr. Hanley and Chief Deputy Johnson, some of the agents and myself were there. Mr. Peterson was there the next day that the labels were signed by the different officers; those two bot-ties, Exhibits 'A’ and ' B.’

“,Q. Now, those two bottles, Exhibits 'A’ and ‘ B,’ were those the two bottles you took out of the car out there, or were those two bottles taken out of the liquor after it go up here?

“A. We didn’t label them out on tne road; simply found it was liquor and sent it in; and this liquor was in Mr. Hanley’s custody that evening, and during the middle of the next day when we checked it over to see the amount of liquor that was there. Mr. Johnson and I sealed the bottles and Mr. Johnson’s name is on the label that goes over the box with mine, and this liquor was taken out of the case today. It was taken out for the purpose of analyzation. The others were not broken until today.

“Q.'And are you able to tell us, from the label and from the bottles, whether it is part of the same liquor taken out of that car? A. It has the appearance of it, yes sir. . Those aré the bottles that were in there that Mr. Hanley said was gotten out of the Carroll car.

“ [Cross-examination.] I think I was the first one to get back to the Carroll car after it was stopped. I had a gun in my pocket; I didn’t present it. I was the first one to the car and raised up the back of the car, but the others were there shortly afterward. We assembled right around the car immediately.

“ Q. And whatever examination and what investigation you made you went right ahead and did it in yo.ur own way? A. Yes, sir.

“ Q. And took possession of it, arrested them, and brought them in? A. Yes, sir.

“ Q. And at that time, of course, you had no search warrant? A. No, sir. We had no knowledge that this car was coming through at that particular time.

“ [Redirect examination.] The lazyback was awfully hard when,J struck it with my fist. It was harder than upholstery ordinarily is in those backs; a great deal harder. It was practically solid. Sixty-nine quarts of whiskey in one lazyback.”

The negotiation concerning three cases of whisky on September 29th was the only circumstance which could have subjected plaintiffs in error to' any reasonable suspicion. No whisky was delivered, and it is not certain-that they ever intended to deliver any. The arrest came two and a half months after the negotiation. Every act in the meantime is ’consistent with complete innocence. Has it come about that merely because a main'once agreed, to deliver whisky, but did not, he may be arrested whenever thereafter he ventures to drive an automobile on the road to Detroit!

5. When Congress has intended that seizures or arrests might be made upon suspicion it has been careful to say so. The history, and terms of the Volstead Act are not consistent with the suggestion that it was the purpose of Congress to grant the power here claimed for enforcement officers. The facts known when the arrest occurred were wholly insufficient to engender reasonable belief that plaintiffs in error were committing a misdemeanor, and the legality of the arrest cannot be supported by facts ascertained through the search which followed.

'To me it seems clear enough that the judgment should be reversed.

I am authorized to say that Mr. Justice Sutherland concurs in this opinion.