Carroll v US.doc

8/14/2019 Carroll v US.doc

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a point 16 miles outsi$e of -ran$ ;api$s. The facts lea$ing to the search an$ sei)ure "ere as follo"s? on !eptember

29th, &ronen"ett an$ !cully "ere in an apartment in -ran$ ;api$s. Three men came to that apartment, a man name$

>rus#a an$ the t"o $efen$ants,

Page 26' %. !. 13/

&arroll an$ >iro. &ronen"ett "as intro$uce$ to them as one !taffor$, "or#ing in the ichigan &hair &ompany in -ran$

;api$s, "ho "ishe$ to buy three cases of "his#ey. The price "as fie$ at B13 a case. The three men sai$ they ha$ to

go to the east en$ of -ran$ ;api$s to get the li*uor an$ that they "oul$ be bac# in half or three*uarters of an hour.

They "ent a"ay, an$ in a short time >rus#a came bac# an$ sai$ they coul$ not get it that night, that the man "ho ha$

it "as not in, but that they "oul$ $eliver it the net $ay. They ha$ come to the apartment in an automobile #no"n as

an Cl$smobile ;oa$ster, the number of "hich &ronen"ett then i$entifie$, a $i$ !cully. The propose$ ven$ors $i$ not

return the net $ay, an$ the evi$ence $isclose$ no eplanation of their failure to $o so. Cne may surmise that it "as

suspicion of the real character of the propose$ purchaser, "hom &arroll subse*uently calle$ by his first name "hen

arreste$ in iro an$ &arroll met

an$ passe$ them in the same automobile, coming from the $irection of


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The constitutional an$ statutory provisions involve$ in this case inclu$e the (ourth Amen$ment an$ the Nationa

Prohibition Act.

The (ourth Amen$ment is in part as follo"s?

The right of the people to be secure in their persons, houses, papers, an$ effects, against unreasonable searches an$

sei)ures, shall not be violate$, an$ no :arrants shall issue, but upon probable cause, supporte$ by Cath o

affirmation, an$ particularly $escribing the place to be searche$, an$ the person, or things to be sei)e$.

!ection 2/, Title , of the National Prohibition Act, c. /, 1 !tat. 30/, 31/, passe$ to enforce the Dighteenth

Amen$ment, ma#es it unla"ful to have or possess any li*uor inten$e$ for use in violating the Act, or "hich has been

so use$, an$ provi$es that no property rights shall eist in such li*uor. A search "arrant may issue an$ such li*uor,

"ith the containers thereof, may be sei)e$ un$er the "arrant an$ be ultimately $estroye$. The section further

provi$es?

No search "arrant shall issue to search any private $"elling occupie$ as such unless it is being use$ for the unla"fu

sale of intoicating li*uor, or unless it is in part use$ for some business purpose such as a store, shop, saloon

restaurant, hotel, or boar$ing house. The term 8private $"elling8 shall be construe$ to inclu$e the room or rooms use$

an$ occupie$ not transiently but solely as

Page 26' %. !. 1

a resi$ence in an apartment house, hotel, or boar$ing house.

!ection 26, Title , un$er "hich the sei)ure herein "as ma$e, provi$es in part as follo"s?

:hen the commissioner, his assistants, inspectors, or any officer of the la" shall $iscover any person in the act of

transporting in violation of the la", intoicating li*uors in any "agon, buggy, automobile, "ater or air craft, or other

vehicle, it shall be his $uty to sei)e any an$ all intoicating li*uors foun$ therein being transporte$ contrary to la"

:henever intoicating li*uors transporte$ or possesse$ illegally shall be sei)e$ by an officer he shall ta#e possession

of the vehicle an$ team or automobile, boat, air or "ater craft, or any other conveyance, an$ shall arrest any person in

charge thereof.

The section then provi$es that the court, upon conviction of the person so arreste$, shall or$er the li*uor $estroye$

an$, ecept for goo$ cause sho"n, shall or$er a sale by public auction of the other property sei)e$, an$ that the

procee$s shall be pai$ into the Treasury of the %nite$ !tates.

@y !ection 6 of an Act supplemental to the National Prohibition Act, c. 13, 2 !tat. 222, 223, it is provi$e$ that, if any

officer or agent or employee of the %nite$ !tates engage$ in the enforcement of the Prohibition Act or this

Amen$ment, shall search any private $"elling, as $efine$ in that Act, "ithout a "arrant $irecting such search, or

shall "ithout a search "arrant maliciously an$ "ithout reasonable cause search any other buil$ing or property, he

shall be guilty of a mis$emeanor an$ sub+ect to fine or imprisonment or both.

n the passage of the supplemental Act through the !enate, Amen$ment No. 32, #no"n as the !tanley Amen$ment

"as a$opte$, the relevant part of "hich "as as follo"s?

!ection 6. That any officer, agent or employee of the %nite$ !tates engage$ in the enforcement of this Act or


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Page 26' %. !. 1/

the National Prohibition Act, or any other la" of the %nite$ !tates, "ho shall search or attempt to search the property

or premises of any person "ithout previously securing a search "arrant, as provi$e$ by la", shall be guilty of a

mis$emeanor an$ upon conviction thereof shall be fine$ not to ecee$ B1000, or imprisone$ not to ecee$ one year

or both so fine$ an$ imprisone$ in the $iscretion of the &ourt.

This Amen$ment "as ob+ecte$ to in the ouse, an$ the =u$iciary &ommittee, to "hom it "as referre$, reporte$ to the

ouse of ;epresentatives the follo"ing as a substitute.

!ec. 6. That no officer, agent or employee of the %nite$ !tates, "hile engage$ in the enforcement of this Act, the

National Prohibition Act, or any la" in reference to the manufacture or taation of, or traffic in, intoicating li*uor, shal

search any private $"elling "ithout a "arrant $irecting such search, an$ no such "arrant shall issue unless there is

reason to believe such $"elling is use$ as a place in "hich li*uor is manufacture$ for sale or sol$. The term 8private

$"elling8 shall be construe$ to inclu$e the room or rooms occupie$ not transiently, but solely as a resi$ence in an

apartment house, hotel, or boar$ing house. Any violation of any provision of this paragraph shall be punishe$ by a fine

of not to ecee$ B1000 or imprisonment not to ecee$ one year, or both such fine an$ imprisonment, in the $iscretion

of the court.

n its report, the &ommittee spo#e in part as follo"s?

t appeare$ to the committee that the effect of the !enate amen$ment No. 32, if agree$ to by the ouse, "oul$

greatly cripple the enforcement of the national prohibition act an$ "oul$ other"ise seriously interfere "ith the

-overnment in the enforcement of many other la"s, as its scope is not limite$ to the prohibition la",

Page 26' %. !. 16

but applies e*ually to all la"s "here prompt action is necessary. There are on the statute boo#s of the %nite$ !tates a

number of la"s authori)ing search "ithout a search "arrant. %n$er the common la" an$ agreeably to the

&onstitution, search may in many cases be legally ma$e "ithout a "arrant. The &onstitution $oes not forbi$ search, as

some parties conten$, but it $oes forbi$ unreasonable search. This provision in regar$ to search is, as a rule

containe$ in the various !tate constitutions, but not"ithstan$ing that fact, search "ithout a "arrant is permitte$ in

many cases, an$ especially is that true in the enforcement of li*uor legislation.

The !enate amen$ment prohibits all search or attempt to search any property or premises "ithout a search "arrant

The effect of that "oul$ necessarily be to prohibit all search, as no search can ta#e place if it is not on some property

or premises.

Not only $oes this amen$ment prohibit search of any lan$s, but it prohibits the search of all property. t "ill prevent

the search of the common bootlegger an$ his stoc# in tra$e, though caught an$ arreste$ in the act of violating the

la". @ut "hat is perhaps more serious, it "ill ma#e it impossible to stop the rum running automobiles engage$ in li#e

illegal traffic. t "oul$ ta#e from the officers the po"er that they absolutely must have to be of any service, for if they

cannot search for li*uor "ithout a "arrant, they might as "ell be $ischarge$. t is impossible to get a "arrant to stop

an automobile. @efore a "arrant coul$ be secure$, the automobile "oul$ be beyon$ the reach of the officer, "ith its

loa$ of illegal li*uor $ispose$ of.


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The conference report resulte$, so far as the $ifference bet"een the t"o ouses "as concerne$, in provi$ing for the

punishment of any officer, agent or employee of the -overnment "ho searches a private $"elling "ithout a "arrant

an$ for the punishment of any such officer,

Page 26' %. !. 1'

etc., "ho searches any other buil$ing or property "here, an$ only "here, he ma#es the search "ithout a "arrant

maliciously an$ "ithout probable cause. n other "or$s, it left the "ay open for searching an automobile, or vehicle

of transportation, "ithout a "arrant, if the search "as not malicious or "ithout probable cause.

The intent of &ongress to ma#e a $istinction bet"een the necessity for a search "arrant in the searching of private

$"ellings an$ in that of automobiles an$ other roa$ vehicles is the enforcement of the Prohibition Act is thus clearly

establishe$ by the legislative history of the !tanley Amen$ment. s such a $istinction consistent "ith the (ourth

Amen$mentF :e thin# that it is. The (ourth Amen$ment $oes not $enounce all searches or sei)ures, but only such as

are unreasonable.

The lea$ing case on the sub+ect of search an$ sei)ure is "#yd $. U%i&ed S&a&es,116 %. !. 616. An Act of &ongress of

=une 22, 1', authori)e$ a court of the %nite$ !tates, in revenue cases, on motion of the government attorney, to

re*uire the $efen$ant to pro$uce in court his private boo#s, invoices an$ papers on pain in case of refusal of having

the allegations of the attorney in his motion ta#en as confesse$. This "as hel$ to be unconstitutional an$ voi$ as

applie$ to suits for penalties or to establish a forfeiture of goo$s, on the groun$ that, un$er the (ourth Amen$ment

the compulsory pro$uction of invoices to furnish evi$ence for forfeiture of goo$s constitute$ an unreasonable search

even "here ma$e upon a search "arrant, an$ that it "as also a violation of the (ifth Amen$ment, in that it compelle$

the $efen$ant in a criminal case to pro$uce evi$ence against himself or be in the attitu$e of confessing his guilt.

n Wee's $. U%i&ed S&a&es,232 %. !. 33, it "as hel$ that a court in a criminal prosecution coul$ not retain letters of

the accuse$ sei)e$ in his house, in his absence an$ "ithout his authority, by a %nite$ !tates marshal

Page 26' %. !. 1

hol$ing no "arrant for his arrest an$ none for the search of his premises, to be use$ as evi$ence against him, the

accuse$ having ma$e timely application to the court for an or$er for the return of the letters.

n Sil$e&h#%e (u!be C#!)a%y $. U%i&ed S&a&es,2/1 %. !. 3/, a "rit of error "as brought to reverse a +u$gment of

contempt of the


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only to be use$ as evi$ence against its o"ner, "as hel$ to be a violation of the (ourth Amen$ment. t "as further hel$

that, "hen the paper "as offere$ in evi$ence an$ $uly ob+ecte$ to, it must be rule$ ina$missible because obtaine$

through an unreasonable search an$ sei)ure, an$ also in violation of the (ifth Amen$ment because "or#ing

compulsory incrimination.

nA!#s $. U%i&ed S&a&es,2// %. !. 313, it "as hel$ that, "here conceale$ li*uor "as foun$ by government officers

"ithout a search "arrant in the home of the $efen$ant,

Page 26' %. !. 19

in his absence, an$ after a $eman$ ma$e upon his "ife, it "as ina$missible as evi$ence against the $efen$ant

because ac*uire$ by an unreasonable sei)ure.

n none of the cases cite$ is there any ruling as to the vali$ity un$er the (ourth Amen$ment of a sei)ure "ithout a

"arrant of contraban$ goo$s in the course of transportation an$ sub+ect to forfeiture or $estruction.

Cn reason an$ authority, the true rule is that, if the search an$ sei)ure "ithout a "arrant are ma$e upon probable

cause, that is, upon a belief, reasonably arising out of circumstances #no"n to the sei)ing officer, that an automobileor other vehicle contains that "hich by la" is sub+ect to sei)ure an$ $estruction, the search an$ sei)ure are vali$. The

(ourth Amen$ment is to be construe$ in the light of "hat "as $eeme$ an unreasonable search an$ sei)ure "hen it

"as a$opte$, an$ in a manner "hich "ill conserve public interests as "ell as the interests an$ rights of in$ivi$ua

citi)ens.

n "#yd $. U%i&ed S&a&es,116 %. !. 616, as alrea$y sai$, the $ecision $i$ not turn on "hether a reasonable search

might be ma$e "ithout a "arrantG but for the purpose of sho"ing the principle on "hich the (ourth Amen$ment

procee$s, an$ to avoi$ any misapprehension of "hat "as $eci$e$, the &ourt, spea#ing through r. =ustice @ra$ley

use$ language "hich is of particular significance an$ applicability here. t "as there sai$ 4page 116 %. !. 6235?

The search for an$ sei)ure of stolen or forfeite$ goo$s, or goo$s liable to $uties an$ conceale$ to avoi$ the payment

thereof, are totally $ifferent things from a search for an$ sei)ure of a man8s private boo#s an$ papers for the purpose

of obtaining information therein containe$, or of using them as evi$ence against him. The t"o things $iffer

*#el#.n the one case, the government is entitle$ to the possession of the propertyG in the other, it is not. The sei)ure

of stolen goo$s is authori)e$ by the

Page 26' %. !. 1/0

common la", an$ the sei)ure of goo$s forfeite$ for a breach of the revenue la"s, or conceale$ to avoi$ the $uties

payable on them, has been authori)e$ by Dnglish statutes for at least t"o centuries past, an$ the li#e sei)ures have

been authori)e$ by our o"n revenue acts from the commencement of the government. The first statute passe$ by

&ongress to regulate the collection of $uties, the act of =uly 31, 1'9, 1 !tat. 29, 3, contains provisions to this effect

As this act "as passe$ by the same &ongress "hich propose$ for a$option the original amen$ments to the

&onstitution, it is clear that the members of that bo$y $i$ not regar$ searches an$ sei)ures of this #in$ as

8unreasonable,8 an$ they are not embrace$ "ithin the prohibition of the amen$ment. !o, also, the supervision

authori)e$ to be eercise$ by officers of the revenue over the manufacture or custo$y of ecisable articles, an$ the

entries thereof in boo#s re*uire$ by la" to be #ept for their inspection, are necessarily ecepte$ out of the category of
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unreasonable searches an$ sei)ures. !o, also, the la"s "hich provi$e for the search an$ sei)ure of articles an$ things

"hich it is unla"ful for a person to have in his possession for the purpose of issue or $isposition, such as counterfeit

coin, lottery tic#ets, implements of gambling, Hc., are not "ithin this category. C#!!#%+eal&h $. Da%a,2 et. 4ass.

329. any other things of this character might be enumerate$.

t is note"orthy that the t"entyfourth section of the Act of 1'9, to "hich the &ourt there refers, provi$es?

That every collector, naval officer an$ surveyor, or other person specially appointe$ by either of them for that

purpose, shall have full po"er an$ authority, to enter any ship or vessel, in "hich they shall have reason to suspect

any goo$s, "ares or merchan$ise sub+ect to $uty shall be conceale$, an$ therein to search for, sei)e, an$ secure any

such goo$s, "ares or merchan$ise, an$ if they shall have cause to suspect a concealment thereof, in any

Page 26' %. !. 1/1

particular $"ellinghouse, store, buil$ing, or other place, they or either of them shall, upon application on oath o

affirmation to any +ustice of the peace, be entitle$ to a "arrant to enter such house, store, or other place 4in the $ay

time only5 an$ there to search for such goo$s, an$ if any shall be foun$, to sei)e an$ secure the same for trial, an$ al

such goo$s, "ares, an$ merchan$ise, on "hich the $uties shall not have been pai$ or secure$, shall be forfeite$.

Ei#e provisions "ere containe$ in the Act of August , 1'90, c. 3/, !ections /1, 1 !tat. 1/, 1'0G in !ection 2' of the

Act of (ebruary 1, 1'93, c. , 1 !tat. 30/, 31/, an$ in !ections 6'1 of the Act of arch 2, 1'99, c. 22, 1 !tat. 62',

6'', 6'.

Thus, contemporaneously "ith the a$option of the (ourth Amen$ment, "e fin$ in the first &ongress, an$ in the

follo"ing !econ$ an$ (ourth &ongresses, a $ifference ma$e as to the necessity for a search "arrant bet"een goo$s

sub+ect to forfeiture, "hen conceale$ in a $"elling house or similar place, an$ li#e goo$s in course of transportation

an$ conceale$ in a movable vessel "here they rea$ily coul$ be put out of reach of a search "arrant. C#!)ae Hes&e$. U%i&ed S&a&es,26/ %. !. /'.

Again, by the secon$ section of the Act of arch 3, 11/, 3 !tat. 231, 232, it "as ma$e la"ful for customs officers not

only to boar$ an$ search vessels "ithin their o"n an$ a$+oining $istricts, but also to stop, search an$ eamine any

vehicle, beast or person on "hich or "hom they shoul$ suspect there "as merchan$ise "hich "as sub+ect to $uty or

ha$ been intro$uce$ into the %nite$ !tates in any manner contrary to la", "hether by the person in charge of the

vehicle or beast or other"ise, an$ if they shoul$ fin$ any goo$s, "ares or merchan$ise thereon, "hich they ha$

probable cause to believe ha$ been so unla"fully brought into the country, to sei)e an$ secure the same, an$ the

vehicle or beast as "ell, for trial

Page 26' %. !. 1/2

an$ forfeiture. This Act "as rene"e$ April 2', 116, 3 !tat. 31/, for a year an$ epire$. The Act of (ebruary 2, 16/

revive$ !ection 2 of the Act of 11/, above $escribe$, c. 6', 13 !tat. 1. The substance of this section "as reenacte$

in the thir$ section of the Act of =uly 1, 166, c. 201, 1 !tat. 1', an$ "as thereafter embo$ie$ in the ;evise$

!tatutes as !ection 3061. Neither !ection 3061 nor any of its earlier counterparts has ever been attac#e$ as

unconstitutional. n$ee$, that section "as referre$ to an$ treate$ a operative by this &ourt in C#&hause% $

Na#,10' %. !. 21/,10' %. !. 219. See als# U%i&ed S&a&es $. O%e "la*' H#se,129 (e$. 16'.
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Again, by !ection 210 of the ;evise$ !tatutes, any n$ian agent, subagent or comman$er of a military post in the

n$ian &ountry, having reason to suspect or being informe$ that any "hite person or n$ian is about to intro$uce, or

has intro$uce$, any spirituous li*uor or "ine into the n$ian &ountry, in violation of la", may cause the boats, stores,

pac#ages, "agons, sle$s an$ places of $eposit of such person to be searche$, an$ if any li*uor is foun$ therein, then

it, together "ith the vehicles, shall be sei)e$ an$ procee$e$ against by libel in the proper court an$ forfeite$. !ection

210 "as the outgro"th of the Act of ay 6, 122, c. /, 3 !tat. 62, authori)ing n$ian agents to cause the goo$s of

tra$ers in the n$ian &ountry to be searche$ upon suspicion or information that ar$ent spirits "ere being intro$uce$

into the n$ian &ountry, to be sei)e$ an$ forfeite$ if foun$, an$ of the Act of =une 30, 13, !ection 20, c. 161, !tat.

'29, '32, enabling an n$ian agent having reason to suspect any person of having intro$uce$ or being about to

intro$uce li*uors into the n$ian &ountry to cause the boats, stores or places of $eposit of such person to be searche$

an$ the li*uor foun$ forfeite$. This &ourt recogni)e$ the statute of 122 as +ustifying such a search an$ sei)ure

inA!ei*a% Fu C#. $. U%i&ed S&a&es,2 Pet. 3/. @y the n$ian

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Appropriation Act of arch 2, 191', c. 16, 39 !tat. 969, 9'0, automobiles use$ in intro$ucing or attempting to

intro$uce intoicants into the n$ian Territory may be sei)e$, libele$ an$ forfeite$ as provi$e$ in the ;evise$ !tatutes

!ection 210.

An$ again, in Alas#a, by !ection 1' of the Act of arch 3, 199, c. 29, 30 !tat. 12/3, 120, it is provi$e$ that

collectors an$ $eputy collectors, or any person authori)e$ by them in "riting, shall be given po"er to arrest persons

an$ sei)e vessels an$ merchan$ise in Alas#a liable to fine, penalties or forfeiture un$er the Act an$ to #eep an$

$eliver the same, an$ the Attorney -eneral, in construing the Act, a$vise$ the -overnment?

f your agents reasonably suspect that a violation of la" has occurre$, in my opinion they have po"er to search any

vessel "ithin the 3mile limit accor$ing to the practice of customs officers "hen acting un$er !ection 30/9 of the

;evise$ !tatutes, an$ to sei)e such vessels.

26 Cpinions Attorneys -eneral 23.

:e have ma$e a some"hat eten$e$ reference to these statutes to sho" that the guaranty of free$om from

unreasonable searches an$ sei)ures by the (ourth Amen$ment has been construe$, practically since the beginning of

the -overnment, as recogni)ing a necessary $ifference bet"een a search of a store, $"elling house or other structure

in respect of "hich a proper official "arrant rea$ily may be obtaine$, an$ a search of a ship, motor boat, "agon or

automobile, for contraban$ goo$s, "here it is not practicable to secure a "arrant because the vehicle can be *uic#ly

move$ out of the locality or +uris$iction in "hich the "arrant must be sought.

aving thus establishe$ that contraban$ goo$s conceale$ an$ illegally transporte$ in an automobile or other vehicle

may be searche$ for "ithout a "arrant, "e come no" to consi$er un$er "hat circumstances such search may be

ma$e. t "oul$ be intolerable an$ unreasonable

Page 26' %. !. 1/

if a prohibition agent "ere authori)e$ to stop every automobile on the chance of fin$ing li*uor, an$ thus sub+ect al

persons la"fully using the high"ays to the inconvenience an$ in$ignity of such a search. Travelers may be so stoppe$
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in crossing an international boun$ary because of national self protection reasonably re*uiring one entering the country

to i$entify himself as entitle$ to come in, an$ his belongings as effects "hich may be la"fully brought in. @ut those

la"fully "ithin the country, entitle$ to use the public high"ays, have a right to free passage "ithout interruption or

search unless there is #no"n to a competent official authori)e$ to search, probable cause for believing that their

vehicles are carrying contraban$ or illegal merchan$ise. !ection 26, Title , of the National Prohibition Act, li#e the

secon$ section of the Act of 1'9, for the searching of vessels, li#e the provisions of the Act of 11/, an$ !ection

3061, ;evise$ !tatutes, for searching vehicles for smuggle$ goo$s, an$ li#e the Act of 122, an$ that of 13 an$

!ection 210, ;.!., an$ the Act of 191' for the search of vehicles an$ automobiles for li*uor smuggle$ into the n$ian

&ountry, "as enacte$ primarily to accomplish the sei)ure an$ $estruction of contraban$ goo$sG secon$ly, the

automobile "as to be forfeite$, an$ thir$ly, the $river "as to be arreste$. %n$er !ection 29, Title , of the Act the

latter might be punishe$ by not more than B/00 fine for the first offense, not more than B1,000 fine or 90 $ays8

imprisonment for the secon$ offense, an$ by a fine of B/00 or more an$ by not more than 2 years8 imprisonment fo

the thir$ offense. Thus, he is to be arreste$ for a mis$emeanor for his first an$ secon$ offenses an$ for a felony if he

offen$s the thir$ time. The main purpose of the Act obviously "as to $eal "ith the li*uor an$ its transportation an$ to

$estroy it. The mere manufacture of li*uor can $o little to $efeat the policy of the Dighteenth Amen$ment an$ theProhibition Act, unless the forbi$$en

Page 26' %. !. 1//

pro$uct can be $istribute$ for illegal sale an$ use. !ection 26 "as inten$e$ to reach an$ $estroy the forbi$$en li*uor

in transportation, an$ the provisions for forfeiture of the vehicle an$ the arrest of the transporter "ere inci$ental. The

rule for $etermining "hat may be re*uire$ before a sei)ure may be ma$e by a competent sei)ing official is not to be

$etermine$ by the character of the penalty to "hich the transporter may be sub+ecte$. %n$er !ection 2, Title , of

the Prohibition Act, the &ommissioner of nternal ;evenue, his assistants, agents an$ inspectors are to have the po"er

an$ protection in the enforcement of the Act conferre$ by the eisting la"s relating to the manufacture or sale of

intoicating li*uors. Cfficers "ho sei)e un$er !ection 26 of the Prohibition Act are therefore protecte$ by !ection 9'0

of the ;evise$ !tatutes, provi$ing that?

:hen, in any prosecution commence$ on account of the sei)ure of any vessel, goo$s, "ares, or merchan$ise, ma$e

by any collector or other officer, un$er any Act of &ongress authori)ing such sei)ure, +u$gment is ren$ere$ for the

claimant, but it appears to the court that there "as reasonable cause of sei)ure, the court shall cause a proper

certificate thereof to be entere$, an$ the claimant shall not, in such case, be entitle$ to costs, nor shall the person "ho

ma$e the sei)ure, nor the prosecutor, be liable to suit or +u$gment on account of such suit o

prosecution? -#$ided,That the vessel, goo$s, "ares, or merchan$ise be, after +u$gment, forth"ith returne$ to such

claimant or his agent.

t follo"s from this that, if an officer sei)es an automobile or the li*uor in it "ithout a "arrant an$ the facts as

subse*uently $evelope$ $o not +ustify a +u$gment of con$emnation an$ forfeiture, the officer may escape costs or a

suit for $amages by a sho"ing that he ha$ reasonable or probable cause for the sei)ure. S&a*ey $. E!ey,9' %. !

62.The measure of legality of such a sei)ure is,

Page 26' %. !. 1/6
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therefore, that the sei)ing officer shall have reasonable or probable cause for believing that the automobile "hich he

stops an$ sei)es has contraban$ li*uor therein "hich is being illegally transporte$.

:e here fin$ the line of $istinction bet"een legal an$ illegal sei)ures of li*uor in transport in vehicles. t is certainly a

reasonable $istinction. t gives the o"ner of an automobile or other vehicle sei)e$ un$er !ection 26, in absence of

probable cause, a right to have restore$ to him the automobile, it protects him un$er the Wee'san$A!#scases from

use of the li*uor as evi$ence against him, an$ it sub+ects the officer ma#ing the sei)ures to $amages. Cn the othe

han$, in a case sho"ing probable cause, the -overnment an$ its officials are given the opportunity "hich they shoul$

have, to ma#e the investigation necessary to trace reasonably suspecte$ contraban$ goo$s an$ to sei)e them.

!uch a rule fulfills the guaranty of the (ourth Amen$ment. n cases "here the securing of a "arrant is reasonably

practicable, it must be use$, an$ "hen properly supporte$ by affi$avit an$ issue$ after +u$icial approval, protects the

sei)ing officer against a suit for $amages. n cases "here sei)ure is impossible ecept "ithout "arrant, the sei)ing

officer acts unla"fully an$ at his peril unless he can sho" the court probable cause.U%i&ed S&a&es $. a)la%,26 (e$

963, 9'2.

@ut "e are presse$ "ith the argument that, if the search of the automobile $iscloses the presence of li*uor an$ lea$s

un$er the statute to the arrest of the person in charge of the automobile, the right of sei)ure shoul$ be limite$ by the

common la" rule as to the circumstances +ustifying an arrest "ithout "arrant for a mis$emeanor. The usual rule is

that a police officer may arrest "ithout "arrant one believe$ by the officer upon reasonable cause to have been guilty

of a felony, an$ that he may only arrest "ithout a "arrant one guilty of mis$emeanor if committe$

Page 26' %. !. 1/'

in his presence. u& $. M#ffi&&,11/ %. !. 'G El' $. U%i&ed S&a&es,1'' %. !. /29. The rule is sometimes epresse$ as

follo"s?

n cases of mis$emeanor, a peace officer, li#e a private person, has at common la" no po"er of arresting "ithout a

"arrant ecept "hen a breach of the peace has been committe$ in his presence or there is reasonable groun$ for

supposing that a breach of peace is about to be committe$ or rene"e$ in his presence.

alsbury8s Ea"s of Dnglan$, ol. 9, part , 612.

The reason for arrest for mis$emeanors "ithout "arrant at common la" "as promptly to suppress breaches of the

peace, 1 !tephen, istory of &riminal Ea", 193, "hile the reason for arrest "ithout "arrant on a reliable report of a

felony "as because the public safety an$ the $ue apprehension of criminals charge$ "ith heinous offenses re*uire$

that such arrests shoul$ be ma$e at once "ithout "arrant. R#ha% $. Sa+a%,/ &ush. 21. The argument for $efen$ants

is that, as the mis$emeanor to +ustify arrest "ithout "arrant must be committe$ in the presence of the police officer

the offense is not committe$ in his presence unless he can by his senses $etect that the li*uor is being transporte$, no

matter ho" reliable his previous information by "hich he can i$entify the automobile as loa$e$ "ith it. El#d $

M#ss,2' (e$. 123G Hu/hes $. S&a&e,1/ Tenn. /.

!o it is that, un$er the rule conten$e$ for by $efen$ants, the li*uor, if carrie$ by one "ho has been alrea$y t"ice

convicte$ of the same offense, may be sei)e$ on information other than the senses, "hile, if he has been only once

convicte$, it may not be sei)e$ unless the presence of the li*uor is $etecte$ by the senses as the automobile
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concealing it rushes by. This is certainly a very unsatisfactory line of $ifference "hen the main ob+ect of the section is

to forfeit an$ suppress the li*uor, the arrest of the in$ivi$ual being only inci$ental, as sho"n by the lightness

Page 26' %. !. 1/

of the penalty. See C#!!#%+eal&h $. S&ee&,3 Pa.


13/22

(inally, "as there probable causeF nThe A)#ll#%,9 :heat. 362, the *uestion "as "hether the sei)ure of a (rench

vessel at a particular place "as upon probable cause that she "as there for the purpose of smuggling. n this

$iscussion, r. =ustice !tory, "ho $elivere$ the +u$gment of the &ourt, sai$ 4page 22 %. !. 3'5?

t has been very +ustly observe$ at the bar that the &ourt is boun$ to ta#e notice of public facts an$ geographical

Page 26' %. !. 160

positions, an$ that this remote part of the country has been infeste$, at $ifferent perio$s, by smugglers, is a matter of

general notoriety, an$ may be gathere$ from the public $ocuments of the government.

:e #no" in this "ay that -ran$ ;api$s is about 1/2 miles from


14/22

if a constable or other peace officer arrest a person "ithout a "arrant, he is not boun$ to sho" in his +ustification a

felony actually committe$, to ren$er the arrest la"fulG but if he suspects one on his o"n #no"le$ge of facts, or on

facts communicate$ to him by others, an$ thereupon he has reasonable groun$ to believe that the accuse$ has been

guilty of felony, the arrest is not unla"ful.

C#!!#%+eal&h $. -hel)s,209 ass. 396G R#ha% $. Sa+i%,/ &ush. 21, 2/. nM*Ca&hy $. De A!i&,99 Pa. !t. 63, the

!upreme &ourt of Pennsylvania sums up the $efinition of probable cause in this "ay 4page 695?

The substance of all the $efinitions is a reasonable groun$ for belief in guilt.

n the case of the Die* Ge%eal $. as&e%bau!,263 %. !. 2/, "hich "as a suit for false imprisonment, it "as sai$ by

this &ourt 4page 263 %. !. 25?

@ut, as "e have seen, goo$ faith is not enough to constitute probable cause. That faith must be groun$e$ on facts

"ithin #no"le$ge of the


15/22

The separate opinion of ;. =%!T&D c;DINCE

1. The $amnable character of the bootlegger8s business shoul$ not close our eyes to the mischief "hich "ill surely

follo" any attempt to $estroy it by un"arrante$ metho$s.

To press for"ar$ to a great principle by brea#ing through every other great principle that stan$s in the "ay of its

establishmentG . . . in short, to procure an imminent goo$ by means that are unla"ful, is as little consonant to private

morality as to public +ustice.

!ir :illiam !cott, The (#uis,2


16/22

of the common la".U%i&ed S&a&es $. Hais,1'' %. !. 30/, 1'' %. !. 310. An$ the "ell settle$ $octrine is that an arrest

for a mis$emeanor may not be ma$e "ithout a "arrant unless the offense is committe$ in the officer8s presence.

u& $. M#ffi&&,11/ %. !. ',11/ %. !. 9

@y the common la" of Dnglan$, neither a civil officer nor a private citi)en ha$ the right "ithout a "arrant to ma#e an

arrest for a crime not committe$ in his presence ecept in the case

Page 26' %. !. 16/

of felony, an$ then only for the purpose of bringing the offen$er before a civil magistrate.

El' $. U%i&ed S&a&es,1'' %. !. /29,1'' %. !. /31

An officer, at common la", "as not authori)e$ to ma#e an arrest "ithout a "arrant, for a mere mis$emeanor not

committe$ in his presence.

C#!!#%+eal&h $. Wi/h&,1/ ass. 19, 1/

t is suggeste$ that the statutory mis$emeanor of having in one8s possession short lobsters "ith intent to sell them is

a continuing offence, "hich is being committe$ "hile such possession continues, an$ that, therefore, an officer "ho

sees any person in possession of such lobsters "ith intent to sell them can arrest such person "ithout a "arrant, as for

a mis$emeanor committe$ in his presence. :e are of opinion, ho"ever, that for statutory mis$emeanors of this #in$,

not amounting to a breach of the peace, there is no authority in an officer to arrest "ithout a "arrant unless it is given

by statute. . . . The Eegislature has often empo"ere$ officers to arrest "ithout "arrant for similar offenses, "hich

perhaps ten$s to sho" that, in its opinion, no such right eists at common la".

-i%'e% $. 5ebe/,' ich. /'3, /

Any la" "hich "oul$ place the #eeping an$ safe con$uct of another in the han$s of even a conservator of the peace

unless for some breach of the peace committe$ in his presence, or upon suspicion of felony, "oul$ be most oppressive

an$ un+ust, an$ $estroy all the rights "hich our &onstitution guarantees. These are rights "hich eiste$ long before

our &onstitution, an$ "e have ta#en +ust pri$e in their maintenance, ma#ing them a part of the fun$amental la" of the

lan$. . . . f persons can be restraine$ of their liberty, an$ assaulte$ an$ imprisone$, un$er such circumstances

"ithout complaint or "arrant, then there is no limit to the po"er of a police officer.

3. The olstea$ Act contains no provision "hich annuls the accepte$ common la" rule or $iscloses $efinite intent

Page 26' %. !. 166

to authori)e arrests "ithout "arrant for mis$emeanors not committe$ in the officer8s presence.

To support the contrary vie", !ection 26 is relie$ upon

:hen . . . any officer of the la" shall $iscover any person in the act of transporting in violation of the la", intoicating

li*uors in any "agon, buggy, automobile, "ater or aircraft, or other vehicle, it shall be his $uty to sei)e any an$ al

intoicating li*uors foun$ therein being transporte$ contrary to la". :henever intoicating li*uors transporte$ o
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possesse$ illegally shall be sei)e$ by an officer, he shall ta#e possession of the vehicle an$ team or automobile, boat

air or "ater craft, or any other conveyance, an$ shall arrest any person in charge thereof.

Eet it be observe$ that this section has no special application to automobilesG it inclu$es any vehicle buggy, "agon

boat or air craft. &ertainly, in a criminal statute, al"ays to be strictly construe$, the "or$s shall $iscover. . . in the act

of transporting in violation of the la" cannot mean shall have reasonable cause to suspect or believe that such

transportation is being carrie$ on. To $iscover an$ to suspect are "holly $ifferent things. !ince the beginning, apt

"or$s have been use$ "hen &ongress inten$e$ that arrests for mis$emeanors or sei)ures might be ma$e upon

suspicion. t has stu$iously refraine$ from ma#ing a felony of the offense here charge$, an$ it $i$ not un$erta#e by

any apt "or$s to enlarge the po"er to arrest. t "as not ignorant of the establishe$ rule on the sub+ect, an$ "ell

un$erstoo$ ho" this coul$ be abrogate$, as plainly appears from statutes li#e the follo"ing? An Act to regulate the

collection of $uties on imports an$ tonnage, approve$ arch 2, 1'9, c. 22, 1 !tat. 62', 6'', 6'G

An Act to provi$e more effectually for the collection of the $uties impose$ by la" on goo$s, "ares an$ merchan$ise

importe$

Page 26' %. !. 16'

into the %nite$ !tates, an$ on the tonnage of ships or vessels,

approve$ August , 1'90, c. 3/, 1 !tat. 1/, 1'0G An Act further to provi$e for the collection of $uties on imports an$

tonnage, approve$ arch 3, 11/, c. 9, 3 !tat. 231, 232. These an$ similar Acts $efinitely empo"ere$ officers to

sei)e upon suspicion an$ therein ra$ically $iffer from the olstea$ Act, "hich authori)e$ no such thing.

An Act supplemental to the National Prohibition Act, approve$ November 23, 1921, c. 13, 2 !tat. 222, 223

provi$es

That any officer, agent, or employee of the %nite$ !tates engage$ in the enforcement of this Act, or the Nationa

Prohibition Act, or any other la" of the %nite$ !tates, "ho shall search any private $"elling as $efine$ in the Nationa

Prohibition Act, an$ occupie$ as such $"elling, "ithout a "arrant $irecting such search, or "ho "hile so engage$ shal

"ithout a search "arrant maliciously an$ "ithout reasonable cause search any other buil$ing or property, shall be

guilty of a mis$emeanor an$ upon conviction thereof shall be fine$ for a first offense not more than B1,000, an$ for a

subse*uent offense not more than B1,000 or imprisone$ not more than one year, or both such fine an$ imprisonment.

An$ it is argue$ that the "or$s an$ history of this section in$icate the intent of &ongress to $istinguish bet"een the

necessity for "arrants in or$er to search private $"ellings an$ the right to search automobiles "ithout one. Dvi$ently

&ongress regar$e$ the searching of private $"ellings as matter of much graver conse*uence than some other

searches, an$ $istinguishe$ bet"een them by $eclaring the former criminal. @ut the connection bet"een this

$istinction an$ the legality of plaintiffs in error8s arrest is not apparent. Nor can fin$ reason for in*uiring concerning

the vali$ity of the $istinction un$er the (ourth Amen$ment. Cf course, the $istinction is

Page 26' %. !. 16


18/22

vali$, an$ so are some sei)ures. @ut "hat of itF The Act ma$e nothing legal "hich theretofore "as unla"ful, an$ to

conclu$e that, by $eclaring the unauthori)e$ search of a private $"elling criminal, &ongress inten$e$ to remove

ancient restrictions from other searches an$ from arrests as "ell "oul$ seem impossible.

:hile the (ourth Amen$ment $enounces only unreasonable sei)ures, unreasonableness often $epen$s upon the

means a$opte$. ere, the sei)ure follo"e$ an unla"ful arrest, an$ therefore became itself unla"ful as plainly

unla"ful as the sei)ure "ithin the home so vigorously $enounce$ in Wee's $. U%i&ed S&a&es,232 %. !. 33, 232 %. !

391,232 %. !. 392,232 %. !. 393.

n S%yde $. U%i&ed S&a&es,2/ (e$. 1, 2, the &ourt of Appeals, (ourth &ircuit, re+ecte$ evi$ence obtaine$ by an

un"arrante$ arrest, an$ clearly announce$ some very "holesome $octrine?

That an officer may not ma#e an arrest for a mis$emeanor not committe$ in his presence, "ithout a "arrant, has

been so fre*uently $eci$e$ as not to re*uire citation of authority. t is e*ually fun$amental that a citi)en may not be

arreste$ on suspicion of having committe$ a mis$emeanor an$ have his person searche$ by force, "ithout a "arrant

of arrest. f, therefore, the arresting officer in this case ha$ no other +ustification for the arrest than the mere suspicion

that a bottle, only the nec# of "hich he coul$ see protru$ing from the poc#et of $efen$ant8s coat, containe$

intoicating li*uor, then it "oul$ seem to follo" "ithout much *uestion that the arrest an$ search, "ithout first having

secure$ a "arrant, "ere illegal. An$ that his only +ustification "as his suspicion is a$mitte$ by the evi$ence of the

arresting officer himself. f the bottle ha$ been empty, or if it ha$ containe$ anyone of a $o)en innoious li*ui$s, the

act of the officer "oul$, a$mitte$ly, have been an unla"ful invasion of the personal liberty of the $efen$ant. That it

happene$ in this instance to contain "his#y, "e thin#,

Page 26' %. !. 169

neither +ustifies the assault nor con$emns the principle "hich ma#es such an act unla"ful.

The vali$ity of the sei)ure un$er consi$eration $epen$s on the legality of the arrest. This $i$ not follo" the sei)ure, but

the reverse is true. Plaintiffs in error "ere first brought "ithin the officers8 po"er, an$, "hile therein, the sei)ure too#

place. f an officer, upon mere suspicion of a mis$emeanor, may stop one on the public high"ay, ta#e articles a"ay

from him, an$ thereafter use them as evi$ence to convict him of crime, "hat becomes of the (ourth an$ (ifth

Amen$mentsF

n Wee's $. U%i&ed S&a&es, su)a,through r. =ustice


19/22

maintenance of such fun$amental rights. . . . The efforts of the courts an$ their officials to bring the guilty to

punishment, praise"orthy as they are, are not to be ai$e$ by the sacrifice of those great principles establishe$ by

years of en$eavor an$ suffering "hich have

Page 26' %. !. 1'0

resulte$ in their embo$iment in the fun$amental la" of the lan$.

Sil$e&h#%e (u!be C#. $. U%i&ed S&a&es,2/1 %. !. 3/,2/1 %. !. 391?

The proposition coul$ not be presente$ more na#e$ly. t is that, although, of course, its sei)ure "as an outrage "hich

the -overnment no" regrets, it may stu$y the papers before it returns them, copy them, an$ then may use the

#no"le$ge that it has gaine$ to call upon the o"ners in a more regular form to pro$uce themG that the protection of

the &onstitution covers the physical possession, but not any a$vantages that the -overnment can gain over the ob+ect

of its pursuit by $oing the forbi$$en act. Wee's $. U%i&ed S&a&es,232 %. !. 33, to be sure, ha$ establishe$ that laying

the papers $irectly before the gran$ +ury "as un"arrante$, but it is ta#en to mean only that t"o steps are re*uire$

instea$ of one. n our opinion, such is not the la". t re$uces the (ourth Amen$ment to a form of "or$s. 232 %.!. 232

%. !. 393. The essence of a provision forbi$$ing the ac*uisition of evi$ence in a certain "ay is that not merely

evi$ence so ac*uire$ shall not be use$ before the court, but that it shall not be use$ at all. Cf course, this $oes not

mean that the facts thus obtaine$ become sacre$ an$ inaccessible. f #no"le$ge of them is gaine$ from an

in$epen$ent source, they may be prove$ li#e any others, but the #no"le$ge gaine$ by the -overnment8s o"n "rong

cannot be use$ by it in the "ay propose$.

G#uled $. U%i&ed S&a&es,2// %. !. 29, an$A!#s $. U%i&ed S&a&es,2// %. !. 313, $istinctly point out that property

procure$ by unla"ful action of (e$eral officers cannot be intro$uce$ as evi$ence.

The arrest of plaintiffs in error "as unauthori)e$, illegal an$ violate$ the guarantee of $ue process given by the (ifthAmen$ment. The li*uor offere$ in evi$ence "as obtaine$ by the search "hich follo"e$ this arrest, an$ "as therefore

obtaine$ in violation of their constitutional

Page 26' %. !. 1'1

rights. Articles foun$ upon or in the control of one la"fully arreste$ may be use$ as evi$ence for certain purposes, but

not at all "hen secure$ by the unla"ful action of a (e$eral officer.

. The facts #no"n by the officers "ho arreste$ plaintiffs in error "ere "holly insufficient to create a reasonable belief

that they "ere transporting li*uor contrary to la". These facts "ere $etaile$ by (re$ &ronen"elt, chief prohibition

officer. is entire testimony as given at the trial follo"s

am in charge of the (e$eral Prohibition iro an$ =ohn &arroll. "as intro$uce$

to them un$er the name of !taffor$, an$ tol$ them "as "or#ing for the ichigan &hair &ompany, an$ "ante$ to buy

three cases of "his#y, an$ the price "as agree$ upon. After they thought "as all right, they sai$ they "oul$ be bac#

in half or three*uarters of an hourG that they ha$ to go out to the east en$ of -ran$ ;api$s, to get this li*uor. They
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"ent a"ay an$ came bac# in a short time, an$ r. >rus#a came upstairs an$ sai$ they coul$n8t get it that nightG that a

fello" by the name of rving, "here they "ere going to get it, "asn8t in, but they "ere going to $eliver it the net $ay,

about ten. They $i$n8t $eliver it the net $ay. am not positive about the price. t seems to me it "as aroun$ B130 a

case. t might be B13/. @oth respon$ents too# part in this conversation. :hen they came to r. !cully8s apartment

they ha$ this same car. :hile it "as $ar# an$ "asn8t able to get a goo$ loo# at this car, later, on the sith $ay of

Cctober, "hen "as out on the roa$ "ith r. !cully, "as "aiting on the high"ay "hile he "ent to ;ee$8s Ea#e to get

a light

Page 26' %. !. 1'2

lunch, an$ they $rove by, an$ ha$ their license number an$ the appearance of their car, an$ #no"ing the t"o boys

seeing them on the 29th $ay of !eptember, "as satisfie$ "hen seen the car on iro "as $riving the car. After "e got them stoppe$, "e as#e$ them to get out of the car, "hich they $i$.

&arroll referre$ to me an$ calle$ me by the name of 8(re$8 +ust as soon as got up to him. ;aise$ up the bac# part of

the roa$sterG $i$n8t fin$ any li*uor thereG then raise$ up the cushionG then struc# at the la)ybac# of the seat an$ it

"as har$. then starte$ to open it up, an$ $i$ tear the cushion some, an$ &arroll sai$, 8


21/22

some of the agents an$ myself "ere there. r. Peterson "as there the net $ay that the labels "ere signe$ by the

$ifferent officersG those t"o bottles, Dhibits 8A8 an$ [email protected]

L. No", those t"o bottles, Dhibits 8A8 an$ 8@,8 "ere those the t"o bottles you too# out of the car out there, or "ere

those t"o bottles ta#en out of the li*uor after it go up hereF

A. :e $i$n8t label them out on the roa$G simply foun$ it "as li*uor an$ sent it in, an$ this li*uor "as in r. anley8s

custo$y that evening an$ $uring the mi$$le of the net $ay "hen "e chec#e$ it over to see the amount of li*uor that

"as there. r. =ohnson an$ seale$ the bottles an$ r. =ohnson8s name is on the label that goes over the bo "ith

mine, an$ this li*uor "as ta#en out of the case to$ay. t "as ta#en out for the purpose of analy)ation. The others "ere

not bro#en until to$ay.

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L. An$ are you able to tell us, from the label an$ from the bottles, "hether it is part of the same li*uor ta#en out of

that carF A. t has the appearance of it, yes sir. Those are the bottles that "ere in there that r. anley sai$ "as

gotten out of the &arroll car.

J&rosseamination.K thin# "as the first one to get bac# to the &arroll car after it "as stoppe$. ha$ a gun in my

poc#etG $i$n8t present it. "as the first one to the car, an$ raise$ up the bac# of the car, but the others "ere there

shortly after"ar$. :e assemble$ right aroun$ the car imme$iately.

L. An$ "hatever eamination an$ "hat investigation you ma$e you "ent right ahea$ an$ $i$ it in your o"n "ayF A.

Ies, sir.

L. An$ too# possession of it, arreste$ them, an$ brought them inF A. Ies, sir.

L. An$ at that time, of course, you ha$ no search "arrantF A. No, sir. :e ha$ no #no"le$ge that this car "as coming

through at that particular time.

J;e$irect eamination.K The la)ybac# "as a"fully har$ "hen struc# it "ith my fist. t "as har$er than upholstery

or$inarily is in those bac#sG a great $eal har$er. t "as practically soli$. !itynine *uarts of "his#ey in one la)ybac#.

The negotiation concerning three cases of "his#y on !eptember 29th "as the only circumstance "hich coul$ have

sub+ecte$ plaintiffs in error to any reasonable suspicion. No "his#y "as $elivere$, an$ it is not certain that they ever

inten$e$ to $eliver any. The arrest came t"o an$ a half months after the negotiation. Dvery act in the meantime is

consistent "ith complete innocence. as it come about that merely because a man once agree$ to $eliver "his#y, but

$i$ not, he may be arreste$ "henever thereafter he ventures to $rive an automobile on the roa$ to


22/22

To me, it seems clear enough that the +u$gment shoul$ be reverse$.

am authori)e$ to say that ;. =%!T&D !%TD;EAN< concurs in this opinion.

Documents

Carroll v US.doc