1. Where officers detected the odor of burning opium emanating
from a hotel room, entered without a search warrant and without
knowing who was there, arrested the only occupant, searched the
room and found opium and smoking apparatus, the search violated the
Fourth Amendment to the Federal Constitution, and a conviction for
a violation of the federal narcotic laws based on the evidence
based on the evidence thus obtained cannot be sustained. Pp.
333 U. S.
2. As a general rule, the question when the right of privacy
must reasonably yield to the right of search must be decided by a
judicial officer, not by a policeman or government enforcement
agent. Pp. 333 U. S.
3. There were no exceptional circumstances in this case
sufficient to justify the failure of the officer to obtain a search
warrant. Pp. 333 U. S.
Page 333 U. S. 11
4. It being conceded that the officer did not have probable
cause to arrest petitioner until he entered the room and found her
to be the sole occupant, the search cannot be sustained as being
incident to a valid arrest. Pp. 333 U. S.
5. The Government cannot at the same time justify an arrest by a
search and justify the search by the arrest. Pp. 333 U. S.
6. An officer gaining access to private living quarters under
color of his office and of the law must then have some valid basis
in law for the intrusion. P. 333 U. S.
162 F.2d 562, reversed.
Petitioner was convicted in a Federal District Court on evidence
obtained by a search made without a warrant. The Circuit Court of
Appeals affirmed. 162 F.2d 562. This Court granted certiorari. 332
U.S. 807. Reversed,
p. 333 U. S.
MR. JUSTICE JACKSON delivered the opinion of the Court.
Petitioner was convicted on four counts charging violation of
federal narcotic laws. [Footnote
] The only question which brings the case here is whether it
was lawful, without a warrant of any kind, to arrest petitioner and
to search her living quarters.
Page 333 U. S. 12
Taking the Government's version of disputed events, decision
would rest on these facts:
At about 7:30 p.m. Detective Lieutenant Belland, an officer of
the Seattle police force narcotic detail, received information from
a confidential informer, who was also a known narcotic user, that
unknown persons were smoking opium in the Europe Hotel. The
informer was taken back to the hotel to interview the manager, but
he returned at once saying he could smell burning opium in the
hallway. Belland communicated with federal narcotic agents, and
between 8:30 and 9 o'clock, went back to the hotel with four such
agents. All were experienced in narcotic work and recognized at
once a strong odor of burning opium, which to them was distinctive
and unmistakable. The odor led to Room 1. The officers did not know
who was occupying that room. They knocked and a voice inside asked
who was there. "Lieutenant Belland," was the reply. There was a
slight delay, some "shuffling or noise" in the room and then the
defendant opened the door. The officer said, "I want to talk to you
a little bit." She then, as he describes it, "stepped back
acquiescently and admitted us." He said, "I want to talk to you
about the opium smell in the room here." She denied that there was
such a smell. Then he said, "I want you to consider yourself under
arrest, because we are going to search the room." The search turned
up incriminating opium and smoking apparatus, the latter being
warm, apparently from recent use. This evidence the District Court
refused to suppress before trial and admitted over defendant's
objection at the trial. Conviction resulted and the Circuit Court
of Appeals affirmed. [Footnote
The defendant challenged the search of her home as a violation
of the rights secured to her in common with others, by the Fourth
Amendment to the Constitution.
Page 333 U. S. 13
The Government defends the search as legally justifiable, more
particularly as incident to what it urges was a lawful arrest of
The Fourth Amendment to the Constitution of the United States
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
Entry to defendant's living quarters, which was the beginning of
the search, was demanded under color of office. It was granted in
submission to authority, rather than as an understanding and
intentional waiver of a constitutional right. Cf. Amos v.
United States, 255 U. S. 313
At the time entry was demanded, the officers were possessed of
evidence which a magistrate might have found to be probable cause
for issuing a search warrant. We cannot sustain defendant's
contention, erroneously made on the strength of Taylor v.
United States, 286 U. S. 1
odors cannot be evidence sufficient to constitute probable grounds
for any search. That decision held only that odors alone do not
authorize a search without warrant. If the presence of odors is
testified to before a magistrate and he finds the affiant qualified
to know the odor, and it is one sufficiently distinctive to
identify a forbidden substance, this Court has never held such a
basis insufficient to justify issuance of a search warrant. Indeed
it might very well be found to be evidence of most persuasive
The point of the Fourth Amendment which often is not grasped by
zealous officers is not that it denies law enforcement
Page 333 U. S. 14
the support of the usual inferences which reasonable men draw
from evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate, instead
of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. [Footnote 3
] Any assumption that evidence sufficient to
support a magistrate"s disinterested determination to issue a
search warrant will justify the officers in making a search without
a warrant would reduce the Amendment to a nullity, and leave the
people"s homes secure only in the discretion of police officers.
] Crime, even in the
privacy of one's own quarters, is, of course, of grave concern to
society, and the law allows such crime to be reached on proper
showing. The right of officers to thrust themselves into a home is
also a grave concern, not only to the individual, but to a society
which chooses to dwell in reasonable security and freedom from
surveillance. When the right of privacy must reasonably yield to
the right of search is, as a rule, to be decided by a judicial
officer, not by a policeman or government enforcement agent.
There are exceptional circumstances in which, on balancing the
need for effective law enforcement against the
Page 333 U. S. 15
right of privacy, it may be contended that a magistrate's
warrant for search may be dispensed with. But this is not such a
case. No reason is offered for not obtaining a search warrant
except the inconvenience to the officers and some slight delay
necessary to prepare papers and present the evidence to a
magistrate. These are never very convincing reasons and, in these
circumstances, certainly are not enough to bypass the
constitutional requirement. No suspect was fleeing or likely to
take flight. The search was of permanent premises, not of a movable
vehicle. No evidence or contraband was threatened with removal or
destruction, except perhaps the fumes which we suppose in time will
disappear. But they were not capable at any time of being reduced
to possession for presentation to court. The evidence of their
existence before the search was adequate and the testimony of the
officers to that effect would not perish from the delay of getting
If the officers in this case were excused from the
constitutional duty of presenting their evidence to a magistrate,
it is difficult to think of a case in which it should be
The Government contends, however, that this search without
warrant must be held valid because incident to an arrest. This
alleged ground of validity requires examination of the facts to
determine whether the arrest itself was lawful. Since it was
without warrant, it could be valid only if for a crime committed in
the presence of the arresting officer or for a felony of which he
had reasonable cause to believe defendant guilty. [Footnote 5
Page 333 U. S. 16
The Government, in effect, concedes that the arresting officer
did not have probable cause to arrest petitioner until he had
entered her room and found her to be the sole occupant. [Footnote 6
] It points out specifically,
referring to the time just before entry,
"For at that time the agents did not know whether there was one
or several persons in the room. It was reasonable to believe that
the room might have been an opium smoking den."
And it says,
". . . that when the agents were admitted to the room and found
only the petitioner present, they had a reasonable basis for
believing that she had been smoking opium, and thus illicitly
possessed the narcotic."
Thus, the Government quite properly stakes the right to arrest,
not on the informer's tip and the smell the officers recognized
before entry, but on the knowledge that she was alone in the room,
gained only after, and wholly by reason of, their entry of her
home. It was therefore their observations inside of her quarters,
after they had obtained admission under color of their police
authority, on which they made the arrest. [Footnote 7
Thus, the Government is obliged to justify the arrest by the
search and at the same time to justify the search by}
Page 333 U. S. 17
the arrest. This will not do. An officer gaining access to
private living quarters under color of his office and of the law
which he personifies must then have some valid basis in law for the
intrusion. Any other rule would undermine "the right of the people
to be secure in their persons, houses, papers and effects,"
] and would
obliterate one of the most fundamental distinctions between our
form of government, where officers are under the law, and the
police state where they are the law.
The CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE REED and MR.
JUSTICE BURTON dissent.
Two counts charged violation of § 2553(a) of the Internal
Revenue Code, 26 U.S.C. § 2553(a), 26 U.S.C.A. Int.Rev.Code, §
2553(a), and two counts charged violation of the Narcotic Drugs
Import and Export Act, as amended, 21 U.S.C. § 174.
9 Cir., 162 F.2d 562.
In United States v. Lefkowitz, 285 U.
, 285 U. S. 464
this Court said:
". . . the informed and deliberate determinations of magistrates
empowered to issue warrants as to what searches and seizures are
permissible under the Constitution are to be preferred over the
hurried action of officers and others who may happen to make
arrests. Security against unlawful searches is more likely to be
attained by resort to search warrants than by reliance upon the
caution and sagacity of petty officers while acting under the
excitement that attends the capture of persons accused of crime. .
"Belief, however well founded, that an article sought is
concealed in a dwelling house furnishes no justification for a
search of that place without a warrant. And such searches are held
unlawful notwithstanding facts unquestionably showing probable
Agnello v. United States, 269 U. S.
, 269 U. S. 33
This is the Washington law. State v. Symes,
484, 55 P. 626; State v. Lindsey,
192 Wash. 356, 73 P.2d
738; State v. Krantz,
24 Wash. 2d 350, 164 P.2d 453;
State v. Robbins,
25 Wash. 2d 110, 169 P.2d 246. State law
determines the validity of arrests without warrant. United
States v. Di Re, 332 U. S. 581
The Government brief states that the question presented is
"whether there was probable cause for the arrest of petitioner
for possessing opium prepared for smoking and the search of her
room in a hotel incident thereto for contraband opium where
experienced narcotic agents unmistakably detected and traced the
pungent, identifiable odor of burning opium emanating from her room
and knew, before they arrested her, that she was the only person in
The Government also suggests that, "In a sense, the arrest was
made in hot pursuit.'" . . .
However, we find no element of "hot pursuit" in the arrest of
one who was not in flight, was completely surrounded by agents
before she knew of their presence, who claims without denial that
she was in bed at the time, and who made no attempt to escape. Nor
would these facts seem to meet the requirements of the Washington
"Uniform Law on Fresh Pursuit." Session Laws 1943, ch. 261.
In Gouled v. United States, 255 U.
, 255 U. S. 302
255 U. S. 303
this Court said:
"It would not be possible to add to the emphasis with which the
framers of our Constitution and this court (in Boyd v. United
States, 116 U. S. 616
, in Weeks v.
United States, 232 U. S. 383
, and in
Silverthorne Lumber Co. v. United States, 251 U. S.
) have declared the importance to political liberty
and to the welfare of our country of the due observance of the
rights guaranteed under the Constitution by these two (Fourth and
Fifth) Amendments. The effect of the decisions cited is: that such
rights are declared to be indispensable to the 'full enjoyment of
personal security, personal liberty, and private property'; that
they are to be regarded as of the very essence of constitutional
liberty; and that the guaranty of them is as important and as
imperative as are the guaranties of the other fundamental rights of
the individual citizen -- the right to trial by jury, to the writ
of habeas corpus, and to due process of law. It has been repeatedly
decided that these amendments should receive a liberal construction
so as to prevent stealthy encroachment upon or 'gradual
depreciation' of the rights secured by them, by imperceptible
practice of courts or by well intentioned, but mistakenly
overzealous, executive officers."