Federal agents who had known for at least three weeks that a
building on a farm was being used for illicit distilling made a
night-time raid thereon without a warrant of arrest or a search
warrant. They were led onto the farm and to the building by the
owner, who was an informer. Through an open door, they saw one of
the petitioners engaged in illicit distilling. An agent entered,
arrested him, and seized the contraband apparatus and material. The
other petitioners were arrested later. Charged with violations of
federal revenue laws, they moved to suppress the evidence as having
been obtained in violation of the Fourth Amendment of the Federal
1. The arrest was lawful as an arrest of a person who was
committing a felony in the discernible presence of a law
enforcement officer at a place where the officer was lawfully
present. Pp. 334 U. S.
(a) The absence of a warrant of arrest, even though there was
sufficient time to obtain one, does not invalidate an arrest under
these circumstances. P. 334 U. S.
2. The seizure of the contraband property was in violation of
the Fourth Amendment, and not justified as incident to the lawful
arrest. Pp. 334 U. S.
(a) In the circumstances of this case, there was no excuse for
failure to obtain a search warrant. Pp. 334 U. S.
-706, 334 U. S.
(b) The fact that the property actually seized was contraband,
which doubtless would have been described in a warrant had one
issued, does not legalize the seizure. P. 334 U. S.
(c) The proximity of the contraband property to the arrested
person at the moment of his arrest was a fortuitous circumstance
inadequate to legalize the seizure. Pp. 334 U. S.
(d) The presence or absence of an arrestee at the exact time and
place of a foreseeable and anticipated seizure does not determine
the validity of that seizure if it occurs without a warrant. P.
334 U. S.
(e) The mere fact that there is a valid arrest does not ipso
legalize a search or seizure without a warrant. P.
334 U. S.
Page 334 U. S. 700
(f) Harris v. United States, 331 U.
, distinguished; Taylor v. United States,
286 U. S. 1
followed. Pp. 334 U. S.
3. Petitioners were entitled to have the unlawfully seized
property suppressed as evidence; but, since the property was
contraband, they were not entitled to have it returned to them. P.
334 U. S.
163 F.2d 828, reversed.
Petitioners, charged with violations of federal revenue laws,
moved to suppress certain evidence alleged to have been illegally
obtained. An order of the District Court denying the motion, 70 F.
Supp. 764, was affirmed by the Circuit Court of Appeals, 163 F.2d
828. This Court granted certiorari. 332 U.S. 841.
p. 334 U. S.
MR. JUSTICE MURPHY delivered the opinion of the Court.
This case adds another chapter to the body of law growing out of
the Fourth Amendment to the Constitution of the United States. That
"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
In other words, the Fourth Amendment is a recognition of the
fact that, in this nation, individual liberty depends in large part
upon freedom from unreasonable intrusion by those in authority. It
is the duty of this Court to give effect to that freedom.
Page 334 U. S. 701
In January, 1946, the petitioners sought to lease part of the
Kell farm in Monmouth County, New Jersey, and to erect a building
thereon. Kell suspected that they intended to build and operate an
illegal still. He accordingly reported the matter to the
appropriate federal authority, the Alcohol Tax Unit of the Bureau
of Internal Revenue. The federal agents told Kell to accept the
proposition, provided he did nothing to entice or encourage the
petitioners into going ahead with their plans and provided he kept
the agents informed of all developments. Nilsen, one of the agents,
was assigned in February to work on the farm in the disguise of a
"dumb farm hand" and to accept work at the still if petitioners
should offer it.
Toward the end of March, 1946, Kell agreed with petitioners to
let them rent part of his farm for $300 a month. Kell and Nilsen
assisted petitioners in the erection of the building, a roughly
constructed barn about 200 yards from the Kell farmhouse. Nilson
also assisted in the erection of the still and the vats.
Operation of the still began about May 13, 1946. Nilsen
thereafter worked as "mash man" at a salary of $100 a week, which
he turned over to the Government. During this period, he was in
constant communication with his fellow agents. By prearrangement,
he would meet one or more of the agents at various places within a
few miles of the Kell farm; at these meetings, "the conversation
would be about the still building I had assisted in erecting or
about the illicit distillery that I was working at on the Kell
farm." On May 20, he met with one of his superior officers and gave
him samples of alcohol, several sugar bags, a yeast wrapper and an
empty five-gallon can which had been taken from the still
On May 26, Nilsen received a two-way portable radio set from his
superiors. He used this set to transmit frequent bulletins on the
activities of the petitioners. On
Page 334 U. S. 702
the basis of radio intelligence supplied by Nilsen, a truckload
of alcohol was seized on May 31 about an hour after it had left the
At about 9 p.m. in the evening of June 3, 1946, Nilsen radioed
his superior that the still operators were awaiting the arrival of
a load of sugar, and that alcohol was to be taken from the farm
when the sugar truck arrived. Nilsen apparently knew then that a
raid was scheduled for that night, for he told Kell during the
evening that "tonight is the night." He radioed at 11 p.m. that the
truck had been delayed but that petitioners Roett and Antoniole
were at the still.
Three federal agents then drove to within three miles of the
farm, at which point they were met by Kell. The remainder of the
distance was traversed in Kell's automobile. They arrived at the
farm at about 11:45 p.m. The agents stated that the odor of
fermenting mash and the sound of a gasoline motor were noticeable
as the car was driven onto the farm premises; the odor became
stronger and the noise louder as they alighted from the car and
approached the building containing the still. Van De Car, one of
the agents, went around one end of the building. Looking through an
open door into a dimly lighted interior, he could see a still
column, a boiler and gasoline pump in operation. He also saw
Antoniole bending down near the pump. He entered the building and
placed Antoniole under arrest. Thereupon he "seized the illicit
After this arrest and seizure, Van De Car looked about further
and observed a large number of five-gallon cans which he later
found to contain alcohol and some vats which contained fermenting
mash. Another agent, Casey, testified that he could see several of
these cans through the open door before he entered; he subsequently
counted the cans and found that there were 262 of them. After he
entered, he saw the remainder of the distillery
Page 334 U. S. 703
equipment, including four large mash vats. The third agent,
Gettel, proceeded to a small truck standing in the yard and
"searched it thoroughly for papers and things of an evidentiary
nature." It does not appear whether he was successful in his search
or whether he took anything from the truck.
A few minutes later, Roett was arrested outside the building.
Petitioners Trupiano and Riccardelli apparently were arrested later
that night by other agents, the place and the circumstances not
being revealed by the record before us. In addition, three other
persons were arrested that night because of their connections with
the illegal operations; one of them, who was unknown to Nilsen, was
arrested when he arrived at the farm with a truck loaded with
The agents engaged in this raid without securing a search
warrant or warrants of arrest. It is undenied that they had more
than adequate opportunity to obtain such warrants before the raid
occurred, various federal judges and commissioners being readily
All of the persons arrested were charged with various violations
of the Internal Revenue Code arising out of their ownership and
operation of the distillery. Prior to the return of an indictment
against them, the four petitioners filed in the District Court for
the District of New Jersey a motion alleging that the federal
agents had illegally seized "a still, alcohol, mash and other
equipment," and asking that "all such evidence" be excluded and
suppressed at any trial, and that "all of the aforesaid property"
be returned. The District Court denied the motion after a hearing,
holding that the seizure was reasonable, and hence constitutional.
70 F. Supp. 764. The Circuit Court of Appeals for the Third Circuit
affirmed per curiam the order of the District Court. 163 F.id 828.
Thus, we have a case where contraband property was seized by
federal agents without a search warrant under
Page 334 U. S. 704
circumstances where such a warrant could easily have been
obtained. The Government, however, claims that the failure to
secure the warrant has no effect upon the validity of the seizure.
Reference is made to the well established right of law enforcement
officers to arrest without a warrant for a felony committed in
their presence, Carroll v. United States, 267 U.
, 267 U. S.
-157, a right said to be unaffected by the fact that
there may have been adequate time to procure a warrant of arrest.
Since one of the petitioners, Antoniole, was arrested while engaged
in operating an illegal still in the presence of agents of the
Alcohol Tax Unit, his arrest was valid under this view even though
it occurred without the benefit of a warrant. And since this arrest
was valid, the argument is made that the seizure of the contraband
open to view at the time of the arrest was also lawful. Reliance is
here placed on the long line of cases recognizing that an arresting
officer may look around at the time of the arrest and seize those
fruits and evidences of crime or those contraband articles which
are in plain sight and in his immediate and discernible presence.
Weeks v. United States, 232 U. S. 383
232 U. S. 392
Carroll v. United States, supra, 267 U. S. 158
Agnello v. United States, 269 U. S.
, 269 U. S. 30
United States v. Lee, 274 U. S. 559
274 U. S. 563
Marron v. United States, 275 U. S. 192
275 U. S.
-199; Go-Bart Importing Co. v. United
States, 282 U. S. 344
282 U. S. 358
United States v. Lefkowitz, 285 U.
, 285 U. S. 465
Harris v. United States, 331 U. S. 145
331 U. S.
We sustain the Government's contention that the arrest of
Antoniole was valid. The federal agents had more than adequate
cause, based upon the information supplied by Nilsen, to suspect
that Antoniole was engaged in felonious activities on the farm
premises. Acting on that suspicion, the agents went to the farm and
entered onto the premises with the consent of Kell, the owner.
There, Antoniole was seen through an open doorway by one of the
agents to be operating an illegal still, an act
Page 334 U. S. 705
felonious in nature. His arrest was therefore valid on the
theory that he was committing a felony in the discernible presence
of an agent of the Alcohol Tax Unit, a peace officer of the United
States. The absence of a warrant of arrest, even though there was
sufficient time to obtain one, does not destroy the validity of an
arrest under these circumstances. Warrants of arrest are designed
to meet the dangers of unlimited and unreasonable arrests of
persons who are not at the moment committing any crime. Those
dangers, obviously, are not present where a felony plainly occurs
before the eyes of an officer of the law at a place where he is
lawfully present. Common sense then dictates that an arrest in that
situation is valid despite the failure to obtain a warrant of
But we cannot agree that the seizure of the contraband property
was made in conformity with the requirements of the Fourth
Amendment. It is a cardinal rule that, in seizing goods and
articles, law enforcement agents must secure and use search
warrants wherever reasonably practicable. Carroll v. United
States, supra, 267 U. S. 156
Go-Bart Importing Co. v. United States, supra,
282 U. S. 358
Taylor v. United States, 286 U. S. 1
286 U. S. 6
Johnson v. United States, 333 U. S.
, 333 U. S. 14
This rule rests upon the desirability of having magistrates, rather
than police officers, determine when searches and seizures are
permissible and what limitations should be placed upon such
activities. United States v. Lefkowitz, supra,
285 U. S. 464
In their understandable zeal to ferret out crime, and in the
excitement of the capture of a suspected person, officers are less
likely to possess the detachment and neutrality with which the
constitutional rights of the suspect must be viewed. To provide the
necessary security against unreasonable intrusions upon the private
lives of individuals, the framers of the Fourth Amendment required
adherence to judicial processes wherever possible. And subsequent
history has confirmed the wisdom of that requirement.
Page 334 U. S. 706
The facts of this case do not measure up to the foregoing
standard. The agents of the Alcohol Tax Unit knew every detail of
the construction and operation of the illegal distillery long
before the raid was made. One of them was assigned to work on the
farm along with the illicit operators, making it possible for him
to secure and report the minutest facts. In cooperation with the
farm owner, who served as an informer, this agent was in a position
to supply information which could easily have formed the basis for
a detailed and effective search warrant. Concededly, there was an
abundance of time during which such a warrant could have been
secured, even on the night of the raid after the odor and noise of
the distillery confirmed their expectations. And the property was
not of a type that could have been dismantled and removed before
the agents had time to secure a warrant; especially is this so
since one of them was on hand at all times to report and guard
against such a move. See United States v. Kaplan,
What was said in Johnson v. United States, supra,
333 U. S. 15
equally applicable here:
"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.
. . . 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
And so, when the agents of the Alcohol Tax Unit decided to
dispense with a search warrant and to take matters into their own
hands, they did precisely what the Fourth Amendment was designed to
outlaw. Uninhibited by any limitations that might have been
contained in a warrant, they descended upon the distillery in a
Page 334 U. S. 707
raid. Nothing circumscribed their activities on that raid except
their own good senses, which the authors of the Amendment deemed
insufficient to justify a search or seizure except in exceptional
circumstances not here present. The limitless possibilities
afforded by the absence of a warrant were epitomized by the one
agent who admitted searching "thoroughly" a small truck parked in
the farmyard for items of an evidentiary character. The fact that
they actually seized only contraband property, which would
doubtless have been described in a warrant had one been issued,
does not detract from the illegality of the seizure. See Amos
v. United States, 255 U. S. 313
Byars v. United States, 273 U. S. 28
Taylor v. United States, supra.
Moreover, the proximity of the contraband property to the person
of Antoniole at the moment of his arrest was a fortuitous
circumstance which was inadequate to legalize the seizure. As we
have seen, the existence of this property and the desirability of
seizing it were known to the agents long before the seizure, and
formed one of the main purposes of the raid. Likewise, the arrest
of Antoniole and the other petitioners in connection with the
illicit operations was a foreseeable event motivating the raid. But
the precise location of the petitioners at the time of their arrest
had no relation to the foreseeability or necessity of the seizure.
The practicability of obtaining a search warrant did not turn upon
whether Antoniole and the others were within the distillery
building when arrested, or upon whether they were then engaged in
operating the illicit equipment. Antoniole just happened to be
working amid the contraband surroundings at 11:45 p.m. on the night
in question, while the other three petitioners chanced to be
someplace else. But Antoniole might well have been outside the
building at that particular time. If that had been the case and he
had been arrested in the farmyard, the entire argument advanced
Page 334 U. S. 708
by the Government in support of the seizure without warrant
would collapse. We do not believe that the applicability of the
Fourth Amendment to the facts of this case depends upon such a
fortuitous factor as the precise location of Antoniole at the time
of the raid.
In other words, the presence or absence of an arrestee at the
exact time and place of a foreseeable and anticipated seizure does
not determine the validity of that seizure if it occurs without a
warrant. Rather, the test is the apparent need for summary seizure,
a test which clearly is not satisfied by the facts before us.
A search or seizure without a warrant as an incident to a lawful
arrest has always been considered to be a strictly limited right.
It grows out of the inherent necessities of the situation at the
time of the arrest. But there must be something more in the way of
necessity than merely a lawful arrest. The mere fact that there is
a valid arrest does not ipso facto
legalize a search or
seizure without a warrant. Carroll v. United States,
supra, 267 U. S. 158
Otherwise, the exception swallows the general principle, making a
search warrant completely unnecessary wherever there is a lawful
arrest. And so there must be some other factor in the situation
that would make it unreasonable or impracticable to require the
arresting officer to equip himself with a search warrant. In the
case before us, however, no reason whatever has been shown why the
arresting officers could not have armed themselves during all the
weeks of their surveillance of the locus with a duly obtained
search warrant -- no reason, that is, except indifference to the
legal process for search and seizure which the Constitution
We do not take occasion here to reexamine the situation involved
in Harris v. United States, supra.
The instant case
relates only to the seizure of contraband the existence and precise
nature and location of which the law enforcement officers were
aware long before making the lawful arrest. That circumstance was
wholly lacking in the
Page 334 U. S. 709
case, which was concerned with the permissible
scope of a general search without a warrant as an incident to a
lawful arrest. Moreover, the Harris
case dealt with the
seizure of Government property which could not have been the
subject of a prior search warrant, it having been found
unexpectedly during the course of a search. In contrast, the
contraband seized in this case could easily have been specified in
a prior search warrant. These factual differences may or may not be
of significance so far as general principles are concerned. But the
differences are enough to justify confining ourselves to the
precise facts of this case, leaving it to another day to test the
situation by the rule that search warrants are to
be obtained and used wherever reasonably practicable.
What we have here is a set of facts governed by a principle
indistinguishable from that recognized and applied in Taylor v.
United States, supra.
The Court there held that the seizure of
illicit whiskey was unreasonable, however well grounded the
suspicions of the federal agents, where there was an abundant
opportunity to obtain a search warrant and to proceed in an
orderly, judicial way. True, the Taylor
case did not
involve a seizure in connection with an arrest. And the officers
there made an unlawful entry onto the premises. But those factors
had no relation to the practicability of obtaining a search warrant
before making the seizure. It was the time element and the
foreseeability of the need for a search and seizure that made the
warrant essential. The Taylor
case accordingly makes plain
the illegality of the seizure in the instant proceeding.
The Fourth Amendment was designed to protect both the innocent
and the guilty from unreasonable intrusions upon their right of
privacy while leaving adequate room for the necessary processes of
law enforcement. The people of the United States insisted on
writing the Fourth Amendment into the Constitution because sad
experience had taught them that the right to search and
Page 334 U. S. 710
seize should not be left to the mere discretion of the police,
but should, as a matter of principle, be subjected to the
requirement of previous judicial sanction wherever possible. The
effective operation of government, however, could hardly be
embarrassed by the requirement that arresting officers who have
three weeks or more within which to secure the authorization of
judicial authority for making search and seizure should secure such
authority and not be left to their own discretion as to what is to
be searched and what is to be seized. Such a requirement partakes
of the very essence of the orderly and effective administration of
It is a mistake to assume that a search warrant in these
circumstances would contribute nothing to the preservation of the
rights protected by the Fourth Amendment. A search warrant must
describe with particularity the place to be searched and the things
to be seized. Without such a warrant, however, officers are free to
determine for themselves the extent of their search and the precise
objects to be seized. This is no small difference. It is a
difference upon which depends much of the potency of the right of
privacy. And it is a difference that must be preserved even where
contraband articles are seized in connection with a valid
It follows that it was error to refuse petitioners' motion to
exclude and suppress the property which was improperly seized. But
since this property was contraband, they have no right to have it
returned to them.
MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE BLACK, MR.
JUSTICE REED and MR. JUSTICE BURTON concur, dissenting.
Federal officers, following a lawful arrest, seized contraband
materials which were being employed in open view in violation and
defiance of the laws of the land.
Page 334 U. S. 711
Today, the Court for the first time has branded such a seizure
illegal. Nothing in the explicit language of the Fourth Amendment
dictates that result. Nor is that holding supported by any decision
of this Court.
The material facts are not in dispute. In January, 1946, certain
of the petitioners approached one Kell offering to rent a portion
of the latter's farm on which a building was to be erected. His
suspicions aroused, Kell reported the matter to agents of the
Alcohol Tax Unit of the Bureau of Internal Revenue. He was advised
that the offer could be accepted provided that nothing was done to
entice petitioners into completion of their plans. An agent,
Nilsen, was assigned to the farm to act the part of a farm hand in
the employ of Kell.
Ultimately, an agreement was entered into whereby Kell rented a
portion of his farm to petitioners at $300 a month. Petitioners,
with the assistance of Kell and Nilsen, constructed a barn-like
structure some two hundred yards from the farmhouse. A still and
vats were installed. After the still began operation, Nilsen acted
as a "mash man" receiving a salary of $100 a week from petitioners.
All sums received by Nilsen were turned over t the Federal
Throughout this period, Nilsen reporter regularly to his
superiors. As a result of this information, federal agents, on May
31, 1946, seized a truckload of alcohol about an hour after it had
left the Kell farm.
The night of June 3, 1946, was chosen by the agents to conduct
their raid. Kell cooperated fully with the officers and drove three
of the agents to the farm in his own car. As the car entered the
farm premises, the odor of fermenting mash and the sound of a
gasoline motor became apparent. When the agents alighted from the
car, it was obvious that the sound and the odor were emanating from
the building in which the still was located. One of the agents
approached the structure and, through an
Page 334 U. S. 712
open door, observed a still and a boiler. He also saw the
petitioner Antoniole bending over a gasoline pump. The agent
entered the building and placed Antoniole under arrest on the
theory that a crime was being committed in his presence.
Subsequently, the agent seized the still, mash vats containing
fermenting mash, other distillery equipment, and 262 five-gallon
cans containing illicit alcohol. Neither the arrest nor the seizure
was effected under the authority of a warrant. Later, six other
persons were arrested, including three of the petitioners in this
case. [Footnote 1
There can be no doubt that the activities of petitioners were in
flagrant violation of the laws of the United. [Footnote 2
] It is clear also that the materials
seized consisted of instrumentalities used by petitioners in their
criminal enterprise and contraband goods, possession of which is a
crime. The materials and objects falling into the control of the
federal agents, therefore, were of the type properly subject to
lawful seizure. [Footnote
Further, it is obvious that entry of the federal agents onto the
farm premises was in no sense trespassory or otherwise illegal.
Amos v. United States, 255 U. S. 313
(1921); Byars v. United States, 273 U. S.
Page 334 U. S. 713
Kell, the owner of the farm, gave his active consent to the
entry. Indeed, he voluntarily drove three of the agents to the
premises in his own car.
Nor can there be doubt that the arrest of the petitioner
Antoniole while engaged in the commission of a felony in the
presence of the agent was a valid arrest. The majority of the Court
explicitly concedes such to be the fact. Under the English common
law, a police officer had power without a warrant to arrest persons
committing a misdemeanor in the officer's presence and persons whom
the officer had reasonable cause to believe had committed a felony.
This rule, which had its origin in the ancient formative period of
the common law, was firmly established at the time of the adoption
of the Fourth Amendment. [Footnote
] Since that time, it has received general application by
state and federal courts. [Footnote
] Indeed, this Court has heretofore given specific recognition
to the rule. Carroll v. United States, 267 U.
, 267 U. S.
-157 (1925). [Footnote 6
Thus, even though agents charged with enforcement of the laws of
the United States made a lawful entry onto the farm, and despite
the fact that a valid arrest was made of a party who was in the act
of committing a felony, the Court now holds that the arresting
officer, in the absence of a search warrant, was powerless to make
a valid seizure of contraband materials located in plain sight in
the structure in which the arrest took place. And this despite the
long line of decisions in this Court recognizing as consistent with
the restrictions of the Fourth Amendment the power of law
Page 334 U. S. 714
to make reasonable searches and seizures as incidents to lawful
In Agnello v. United States, 269 U. S.
, 269 U. S. 30
(1925), this Court stated:
"The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime . . . as well as weapons and other things
to effect an escape from custody, is not to be doubted. . . . Such
searches and seizures naturally and usually appertain to and attend
such arrests. [Footnote 7
And see Weeks v. United States, 232 U.
, 232 U. S. 392
(1914); Carroll v. United States, supra,
at 267 U. S. 158
United States v. Lee, 274 U. S. 559
274 U. S. 563
(1927); Marron v. United States, 275 U.
, 275 U. S.
-199 (1927); Go-Bart Importing Co. v. United
States, 282 U. S. 344
282 U. S. 358
(1931); United States v. Lefkowitz, 285 U.
, 285 U. S. 465
(1932); Harris v. United States, 331 U.
, 331 U. S.
-151, 331 U. S. 168
331 U. S. 186
The validity of the search and seizure as incident to a lawful
arrest has been based upon a recognition by this Court that, where
law enforcement agents have lawfully gained entrance into premises
and have executed a valid arrest of the occupant, the vital rights
of privacy protected by the Fourth Amendment are not denied by
seizure of contraband materials and instrumentalities of crime in
open view or such as may be brought to light by a reasonable
search. Here, there can be no objection to the scope or intensity
of the search. Cf. Marron v. United States, supra; Go-Bart
Importing Co. v. United States, supra; United States v. Lefkowitz,
supra; Harris v. United States, supra.
The seizure was not
preceded by an exploratory search. The objects seized were in plain
sight. To insist upon the use of a search warrant in situations
where the issuance of such a warrant can contribute nothing to the
preservation of the rights which
Page 334 U. S. 715
the Fourth Amendment was intended to protect, serves only to
open an avenue of escape for those guilty of crime and to menace
the effective operation of government which is an essential
precondition to the existence of all civil liberties.
In reaching its result, the Court relies on Taylor v. United
States, 286 U. S. 1
There, federal agents broke into a garage and seized a quantity of
illicit liquor. At the time of entry, "No one was within the place,
and there was no reason to think otherwise." Id.
286 U. S. 5
agents acted without the authority of a search warrant, nor, unlike
the present case, was lawful entry into the building made for the
purpose of effecting a valid arrest. Under these circumstances, the
Court ruled that the seizure was unlawful. But to apply that
holding in a situation like the present, where law enforcement
officers have entered a building to arrest a party openly engaged
in the commission of a felony, is to disregard the very basis upon
which the Taylor
case was decided.
We are told, however, that, although the petitioner Antoniole
was arrested while undeniably engaged in the commission of a
felony, his presence in the building in which the contraband
materials were located was a "fortuitous circumstance which was
inadequate to legalize the seizure." We should suppose that any
arrest of a party engaged in the commission of a felony is based in
part upon an element of chance. Criminals do not normally choose to
engage in felonious enterprises before an audience of police
officials. We may well anticipate the perplexity of officers
engaged in the practical business of law enforcement when
confronted with a rule which makes the validity of a seizure of
contraband materials as an incident to a lawful arrest dependent
upon subsequent judicial judgment as to the "fortuitous"
circumstances relating to the presence of the party arrested on the
premises in which the illegal goods are located.
Page 334 U. S. 716
Nor are we free to assume that the agents in this case would
have proceeded illegally to seize the materials in the barn in the
absence of the justification of a valid arrest. A lawful seizure is
not to be invalidated by speculations as to what the conduct of the
agents might have been had a different factual situation been
The case of Johnson v. United States, 333 U. S.
(1948), does not support the result which the Court
has reached. For there, the majority of the Court held that the
arrest in question was an invalid one. Obviously, a search and
seizure may not be held valid on the sole ground that it was an
incident to an invalid arrest. Such is not the situation here.
In Carroll v. United States, supra,
at 267 U. S. 149
this Court observed:
"The Fourth Amendment is to be construed in the light of what
was deemed an unreasonable search and seizure when it was adopted,
and in a manner which will conserve public interests as well as the
interests and rights of individual citizens."
We believe that the result reached today is not consistent with
judicial authority as it existed before the adoption of the Fourth
Amendment, nor as it has developed since that time. Nor do we feel
that the decision commends itself as adapted to conserve vital
public and individual interests. Heretofore, it has been thought
that where officers charged with the responsibility of enforcement
of the law have lawfully entered premises and executed a valid
arrest, a reasonable accommodation of the interests of society and
the individual permits such officials to seize instrumentalities of
the crime and contraband materials in open view of the arresting
officer. The Court would now condition this right of seizure after
a valid arrest upon an ex post facto
judicial judgment of
whether the arresting officers might have obtained a search
warrant. At best, the operation of the rule which the Court today
enunciates for the first time may be expected to confound confusion
in a field already replete with complexities.
Subsequently, petitioners moved the District Court to order the
return of the property seized and to suppress its use as evidence.
70 F. Supp. 764 (1947). The motion was denied. The order was
affirmed by the Circuit Court of Appeals in a per curiam statement.
163 F.2d 828 (1947).
§§ 2803, 2810, 2812, 2814, 2831, 2833 of the
Internal Revenue Code.
Boyd v. United States, 116 U.
, 116 U. S.
-624 (1886); Weeks v. United States,
232 U. S. 383
232 U. S.
-393 (1914); Gouled v. United States,
255 U. S. 298
255 U. S. 309
(1921); Carroll v. United States, 267 U.
, 267 U. S.
-150 (1925); Agnello v. United States,
269 U. S. 20
269 U. S. 30
(1925);; Marron v. United States, 275 U.
, 275 U. S. 199
(1927); United States v. Lefkowitz, 285 U.
, 285 U. S.
-466 (1932); Harris v. United States,
331 U. S. 145
331 U. S. 154
Samuel v. Payne,
1 Doug.K.B. 359 (1780); Wakely v.
6 Bin. 316 (1814). And see
2 Hale, Pleas of the
Crown 85-97; 4 Blackstone, Commentaries 292-293; Wilgus, Arrest
Without a Warrant, 22 Mich.L.Rev. 541, 673.
United States v. Daison,
288 F. 199 (1923); Rohan
5 Cush. 281 (1850); Wade v. Chaffee,
Cf. Kurtz v. Moffitt, 115 U. S. 487
115 U. S.
And see id.
269 U. S. 32