1. A state search warrant based on an information alleging that
affiant "has good reason to believe and does believe defendant has
in his possession" intoxicating liquors and instruments and
materials used in the manufacturing of such liquors cannot, under
the Fourth Amendment, sustain a federal search of defendant's house
and seizure therein of counterfeit internal revenue stamps. P.
273 U. S.
29.
2. Evidence of crime discovered by a federal officer in making a
search without lawful warrant may not be used against the victim of
the unlawful search where a timely challenge has been interposed.
P.
273 U. S.
29.
3. Constitutional provisions for the security of person and
property are to be liberally construed, and "it is the duty of
courts to be watchful for the constitutional rights of the citizen,
and against any stealthy encroachments thereon." P.
273 U. S.
32.
4. When a federal officer participates officially with state
officers in a search, so that, in substance and effect, it is their
joint operation, the legality of the search and of the use in
evidence of the things seized, is to be tested, in federal
prosecutions, as it would be if the undertaking were exclusively
his own. P.
273 U. S.
32.
4 F.2d 507 reversed.
Certiorari (268 U.S. 684) to a judgment of the Circuit Court of
Appeals which affirmed a conviction of Byars for unlawful
possession of counterfeit "strip" stamps.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Petitioner was convicted in the federal District Court for the
Southern District of Iowa upon two counts for unlawfully
Page 273 U. S. 29
having in his possession with fraudulent intent certain
counterfeit strip stamps of the kind used upon whisky bottled in
bond. The stamps were admitted in evidence over the objection of
petitioner that they had been obtained by an unlawful search and
seizure. A timely motion previously made by the petitioner to
return or impound the stamps was overruled. The judgment of
conviction was affirmed by the Circuit Court of Appeals. 4 F.2d
507.
The stamps were found in executing a search warrant issued by
the judge of a state municipal court and addressed to "any peace
officer of Des Moines, Polk county, Iowa," directing search for
intoxicating liquors and instruments and materials used in the
manufacture of such liquors. The information upon which the search
warrant was issued states only that affiant "has good reason to
believe and does believe the defendant has in his possession" such
intoxicating liquors, instruments and materials. The warrant
clearly is bad if tested by the Fourth Amendment and the laws of
the United States. C. 30, tit. XI, §§ 3-6, 40 Stat. 217, 228-229;
c. 85, tit. 2, § 2, 41 Stat. 305, 308.
See Ripper v. United
States, 178 F. 24, 26;
United States v. Borkowski,
268 F. 408, 410-411;
United States v. Kelly, 277 F. 485,
486-489. Whether it is good under the state law it is not necessary
to inquire, since in no event could it constitute the basis for a
federal search and seizure, as, under the facts hereinafter stated,
it is insisted this was.
Nor is it material that the search was successful in revealing
evidence of a violation of a federal statute. A search prosecuted
in violation of the Constitution is not made lawful by what it
brings to light; and the doctrine has never been recognized by this
court, nor can it be tolerated under our constitutional system,
that evidences of crime discovered by a federal officer in making a
search without lawful warrant may be used against the victim of
Page 273 U. S. 30
the unlawful search where a timely challenge has been
interposed.
Weeks v. United States. 232 U.
S. 383,
232 U. S. 393;
Gouled v. United States, 255 U. S. 298,
255 U. S. 306;
Amos v. United States, 255 U. S. 313;
Silverthorne Lumber Co. v. United States, 251 U.
S. 385,
251 U. S. 391;
Agnello v. United States, 269 U. S.
20,
269 U. S.
33.
The warrant directs the officer to search certain described
premises and, if any of the liquors, instruments or materials set
forth in the information are found, to seize the same and keep them
until final action be had thereon. It was put into the hands of Mr.
Densmore, a local officer in charge of the night liquor bureau of
the police station in Des Moines, Iowa, and he, together with three
others, proceeded to make the search in circumstances which can
best be shown by quoting from the testimony given upon the hearing
of the motion to impound or return the property seized. Mr.
Densmore testified as follows:
"As I came down stairs, I asked the captain about Mr. Adams, who
was there, and I asked him to go with me. Mr. Adams is the federal
prohibition agent, stationed here in Des Moines, Iowa, an officer
of the government, operating under the Treasury Department. I met
him after the warrant has been sued out, and asked him to go with
me. I had the warrant at that time. It was in the police station of
the city that I met Mr. Adams and requested him to come along. I
had not discussed this case with Mr. Adams before that. He went
with me from the city building on the search. As far as I know, he
did not have any warrant or any authority to go into that residence
other than the authority that I may have given him under the
warrant I had. The search and seizure was made entirely upon the
authority of the warrant that I had obtained at the City Hall.
Arriving at the residence, I assigned each man a room. I assigned
Adams a room. We found no intoxicating liquors there. The only
thing that we found that we took were the stamps involved
Page 273 U. S. 31
in this case. Mr. Taylor found part of them, and Mr. Adams found
part of them. Mr. Adams kept the stamps he found in his possession,
and those found by Mr. Taylor were turned over to him right at that
time. The ones that Adams found and the ones that were given to him
were taken possession of by Adams right there in the house of A. J.
Byars, immediately after the service. Neither myself or any of the
other city officers had possession of those stamps after that
evening. There was never any prosecution attempted in the city
courts or such courts as I was connected with so far as these
stamps were involved."
Mr. Adams, the federal prohibition agent, testified:
"I remember assisting in the search of the residence of A. J.
Byars on the 22nd day of April, 1924. Officers Densmore, Taylor, De
Haven, and Davis were with me. I met them in the captain's office
at the police station in the City of Des Moines, and accompanied
them to make the search. I had no authority for going into the
house other than the search warrant that the officers had secured
from the state authorities. The only authority that I had for going
into the house of Mr. Byars was on account of the search warrant
that Mr. Densmore had. I searched the kitchen. I found some of the
stamps that were involved in this case there in the kitchen. I took
possession of them then and there, and have retained them ever
since. I have retained the stamps that I found and those that were
handed me there in the house. I was not present with Mr. Taylor in
the room when he found the stamps, but they were brought to me in
the dining room by Mr. Taylor, and I took possession of them then
and there, and I have retained possession of all the stamps from
that time until this. They were never delivered to the state
officers or used by them. I do not know of any violation of any
state law that they could be used for. I knew there was no state
law governing the possession of
Page 273 U. S. 32
these stamps, and, as a federal officer, I took possession of
what I found, and those found by the state officer, and have had
them in my possession ever since and receipted to the police
officers at the station that evening after the return from the
raid, for the stamps found."
While it is true that the
mere participation in a state
search of one who is a federal officer does not render it a federal
undertaking, the court must be vigilant to scrutinize the attendant
facts with an eye to detect and a hand to prevent violations of the
Constitution by circuitous and indirect methods. Constitutional
provisions for the security of person and property are to be
liberally construed, and "it is the duty of courts to be watchful
for the constitutional rights of the citizen, and against any
stealthy encroachments thereon."
Boyd v. United States,
116 U. S. 616,
116 U. S. 635;
Gouled v. United States, supra, p.
255 U. S. 304,
supra.
The attendant facts here reasonably suggest that the federal
prohibition agent was not invited to join the state squad as a
private person might have been, but was asked to participate and
did participate as a federal enforcement officer, upon the chance,
which was subsequently realized, that something would be disclosed
of official interest to him as such agent. The house to be searched
contained only four rooms -- a dining room, a kitchen, and two
bedrooms. We are not prepared to accept the view that the local
officer thought a force of four men would be insufficient to search
these limited premises, and it is significant in that connection
that he did not ask his superior officer for additional help, but
inquired particularly for Adams, who, he knew, was the federal
agent. The stamps found were not within the purview of the state
search warrant, nor did they relate in any way to a violation of
state law. Those found by the agent were held by him as of right,
and without question; those found by the state officer were
considered by both the local officer
Page 273 U. S. 33
in charge and the federal agent as things which concerned the
federal government alone, and then and there were surrendered to
the exclusive possession of the federal agent -- a practical
concession that he was present in his federal character. We cannot
avoid the conclusion that the participation of the agent in the
search was under color of his federal office, and that the search,
in substance and effect, was a joint operation of the local and
federal officers. In that view, so far as this inquiry is
concerned, the effect is the same as though he had engaged in the
undertaking as one exclusively his own. Similar questions have been
presented in a variety of forms to the lower federal courts, but
nothing is to be gained by attempting to review the decisions,
since each of them rests, as the present case does, upon its own
peculiar facts.
But see and compare Flagg v. United
States, 233 F. 481, 483;
United States v. Slusser,
270 F. 818, 820;
United States v. Falloco, 277 F. 75, 82;
Legman v. United States, 295 F. 474, 476-478;
Marron
v. United States, 8 F.2d 251, 259;
United States v.
Brown, 8 F.2d 630,
631.
We do not question the right of the federal government to avail
itself of evidence improperly seized by state officers operating
entirely upon their own account. But the rule is otherwise when the
federal government itself, through its agents acting as such,
participates in the wrongful search and seizure. To hold the
contrary would be to disregard the plain spirit and purpose of the
constitutional prohibitions intended to secure the people against
unauthorized official action. The Fourth Amendment was adopted in
view of long misuse of power in the matter of searches and seizures
both in England and the colonies, and the assurance against any
revival of it, so carefully embodied in the fundamental law, is not
to be impaired by judicial sanction of equivocal methods,
Page 273 U. S. 34
which, regarded superficially, may seem to escape the challenge
of illegality but which, in reality, strike at the substance of the
constitutional right.
Judgment reversed.