Whiteley v. Warden
401 U.S. 560 (1971)

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U.S. Supreme Court

Whiteley v. Warden, 401 U.S. 560 (1971)

Whiteley v. Warden

No. 136

Argued January 13, 1971

Decided March 29, 1971

401 U.S. 560




A sheriff, acting on a tip, made a complaint before a magistrate charging that petitioner and another individual on the date and at the place named "did then and there unlawfully break and enter into [the described] locked . . . building," and a warrant was issued. A police radio bulletin named and described the two persons, the type of car they were probably driving, and the amount and type of money taken. Relying on the bulletin, an officer in another county made a warrantless arrest of the suspects. The car was then searched and various incriminating items removed, which were later used at petitioner's trial, which resulted in his conviction. Petitioner filed a habeas corpus petition reiterating the challenge he had made at his arraignment and trial to the constitutionality of the use of evidence seized during a search incident to the assertedly illegal arrest. The District Court denied the petition, and the Court of Appeals affirmed.


1. Petitioner's arrest violated his rights under the Fourth and Fourteenth Amendments and the evidence secured incident thereto should have been excluded from his trial. Pp. 401 U. S. 564-569.

(a) The complaint, which did not mention that the sheriff acted on an informer's tip, and which consisted of no more than the sheriff's conclusion that the individuals named committed the offense, could not support the independent judgment of a disinterested magistrate. P. 401 U. S. 565.

(b) The standards applicable to the factual basis for an arresting officer's probable cause assessment are no less strict than those applicable to the magistrate's assessment. Here, the arresting officer had no information to corroborate the report that the suspects had committed the crime and the fact that the warrantless arrest was based on a police radio bulletin cannot supply the element of probable cause that the officer who issued the bulletin lacked. Pp. 401 U. S. 565-567.

2. Since, notwithstanding petitioner's constitutional challenge at each stage, respondent made no attempt to show that the magistrate had more information than was presented in the complaint,

Page 401 U. S. 561

he may not attempt to do so now on remand; and the writ must issue unless the State appropriately arranges to retry the petitioner. P. 401 U. S. 569.

416 F.2d 36, reversed and remanded.

HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. BLACK, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 401 U. S. 570. BLACKMUN, J., filed a dissenting statement, post, p. 401 U. S. 575.

MR. JUSTICE HARLAN delivered the opinion of the Court.

Petitioner Whiteley, in 1965, was convicted in the District Court for the Second Judicial District of the State of Wyoming on charges of breaking and entering and being an habitual criminal. [Footnote 1] Both at his arraignment and at trial, Whiteley challenged the constitutionality of the use of evidence seized during a search incident to an arrest which he claimed was illegal. The trial court overruled petitioner's motion to suppress, and, on appeal, the Supreme Court of Wyoming affirmed. Whiteley v. State, 418 P.2d 164 (1966). This proceeding commenced with a petition for habeas corpus in the United States District Court for the District of Wyoming, which was denied on November 25, 1968. [Footnote 2] Whiteley v. Wyoming, 293 F.Supp. 381. On appeal, the United States Court of Appeals for

Page 401 U. S. 562

the Tenth Circuit affirmed. Whiteley v. Meacham, 416 F.2d 36 (1969). We granted certiorari, limiting the writ to the issue of the constitutionality of the arrest and ensuing search and seizure. 397 U.S. 1062 (1970). [Footnote 3] We reverse the judgment of the Tenth Circuit for the reasons stated herein.


The circumstances surrounding petitioner's arrest and the incidental search and seizure, as stated by the Wyoming Supreme Court, 418 P.2d 164, 16166, are as follows: [Footnote 4]

"On November 23, 1964, certain business establishments in Saratoga were broken into, including the Rustic Bar and Shively's Hardware, the offenses being investigated by the Carbon County Sheriff [Sheriff Ogburn] who, acting on a tip, the next day signed a complaint charging defendant and another with breaking and entering the building identified

Page 401 U. S. 563

as the Rustic Bar. This complaint was made before a justice of the peace at approximately 11:30 a.m. on the 24th, and a warrant issued. After the investigation, the sheriff put out a state item on the radio to pick up two suspects of the breaking and entering, defendant and another. The message went to the network at Casper, and was transmitted over the State, received by the Albany County Sheriff's Office and communicated to the Laramie Police Department, the message giving name and descriptions of the two persons and advising the type of car probably being driven and the amount of money taken, including certain old coins with the dates. Late at night on November 24, a Laramie patrolman, in reliance on the information in the radio item, arrested the defendant and his companion. At the time, the patrolman had no warrant for defendant's arrest, nor search warrant. The officer together with a deputy sheriff, who had come up in the meantime, searched the car and removed a number of items introduced in evidence, including tools and old coins, identified at the trial as taken from Shively's Hardware. . . ."

Sheriff Ogburn's complaint, which provided the basis for the arrest warrant issued by the justice of the peace, is as follows:

"I, C. W. Ogburn, do solemnly swear that, on or about the 23 day of November, A.D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants, did then and there unlawfully break and enter a locked and sealed building [describing the location and ownership of the building]."

App. 28.

A state item 881, the bulletin which Sheriff Ogburn

Page 401 U. S. 564

put out on the radio and which led to petitioner's arrest and search by the Laramie patrolman, is as follows:

"P & H for B & E Saratoga, early A.M. 11-24-64. Subj. #1. Jack Daley, WMA, 38, D.O.B. 2-29-[26], 5'10', 175, med. build, med. comp., blonde and blue. Tat. left shoulder: 'Love Me or Leave Me.' #2. Harold Whitley, WMA, 43, D.O.B. 6-22-21, 5'11', 180, med. build, fair comp. brown eyes. Tat. on right arm 'Bird.' Poss. driving 1953 or 1954 Buick, light green bottom, dark top. Wyo. lic. 2-bal. unknown. Taken: $281.71 in small change, numerous old coins ranging from .5

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