Because heroin had been obtained from petitioner through
unlawful search and seizure, its use in evidence was suppressed on
petitioner's motion, and an indictment against him for its
possession was dismissed on the Government's motion. In his
subsequent trial for other illicit transactions in narcotics,
petitioner testified on direct examination that he had never
purchased, sold or possessed any narcotics. In order to impeach
this testimony, the Government introduced the testimony of an
officer who had participated in the unlawful search and seizure of
the heroin involved in the earlier proceeding and the chemist who
had analyzed it.
Petitioner's assertion on direct examination that
he had never possessed any narcotics opened the door, solely for
the purpose of attacking petitioner's credibility, to evidence of
the heroin unlawfully seized in connection with the earlier
proceeding. Weeks v. United States, 232 U.
, and Agnello v. United States,
269 U. S. 20
distinguished. Pp. 274 U.S.
201 F.2d 715, affirmed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
In May, 1950, petitioner was indicted in the United States
District Court for the Western District of Missouri for purchasing
and possessing one grain of heroin. Claiming that the heroin
capsule had been obtained through an unlawful search and seizure,
Page 347 U. S. 63
to suppress it. The motion was granted, and shortly thereafter,
on the Government's motion, the case against petitioner was
In January of 1952, petitioner was again indicted, this time for
four other illicit transactions in narcotics. The Government's case
consisted principally of the testimony of two drug addicts who
claimed to have procured the illicit stuff from petitioner under
the direction of federal agents. The only witness for the defense
was the defendant himself, petitioner here. He denied any narcotics
dealings with the two Government informers, and attributed the
testimony against him to personal hostility.
Early on his direct examination, petitioner testified as
"Q. Now, first, Mr. Walder, before we go further in your
testimony, I want to you [sic
] tell the Court and jury
whether, not referring to these informers in this case, but whether
you have ever sold any narcotics to anyone."
"A. I have never sold any narcotics to anyone in my life."
"Q. Have you ever had any narcotics in your possession, other
than what may have been given to you by a physician for an
"Q. Now, I will ask you one more thing. Have you ever handed or
given any narcotics to anyone as a gift or in any other manner
without the receipt of any money or any other compensation?"
"A. I have not."
"Q. Have you ever even acted as, say, have you acted as a
conduit for the purpose of handling what you knew to be a narcotic
from one person to another?"
"A. No, Sir. "
Page 347 U. S. 64
On cross-examination, in response to a question by Government
counsel making reference to this direct testimony, petitioner
reiterated his assertion that he had never purchased, sold or
possessed any narcotics. Over the defendant's objection, the
Government then questioned him about the heroin capsule unlawfully
seized from his home in his presence back in February, 1950. The
defendant stoutly denied that any narcotics were taken from him at
that time. [Footnote 1
Government then put on the stand one of the officers who had
participated in the unlawful search and seizure, and also the
chemist who had analyzed the heroin capsule there seized. The trial
judge admitted this evidence, but carefully charged the jury that
it was not to be used to determine whether the defendant had
committed the crimes here charged, but solely for the purpose of
impeaching the defendant's credibility. The defendant was
convicted, and the Court of Appeals for the Eighth Circuit
affirmed, one judge dissenting. 201 F.2d 715. The question which
divided that court, and the sole issue here, is whether the
defendant's assertion on direct examination that he had never
possessed any narcotics opened the door, solely for the purpose of
attacking the defendant's credibility, to evidence of the heroin
unlawfully seized in connection with the earlier proceeding.
Because this question presents a novel aspect of the scope of the
doctrine of Weeks v. United States, 232 U.
, we granted certiorari. 345 U.S. 992.
The Government cannot violate the Fourth Amendment [Footnote 2
] -- in the only way in which
the Government can do anything, namely through its agents -- and
use the fruits
Page 347 U. S. 65
of such unlawful conduct to secure a conviction. Weeks v.
United States, supra.
Nor can the Government make indirect use
of such evidence for its case, Silverthorne Lumber Co. v.
United States, 251 U. S. 385
support a conviction on evidence obtained through leads from the
unlawfully obtained evidence, cf. Nardone v. United
States, 308 U. S. 338
these methods are outlawed, and convictions obtained by means of
them are invalidated, because they encourage the kind of society
that is obnoxious to free men.
It is one thing to say that the Government cannot make an
affirmative use of evidence unlawfully obtained. It is quite
another to say that the defendant can turn the illegal method by
which evidence in the Government's possession was obtained to his
own advantage, and provide himself with a shield against
contradiction of his untruths. Such an extension of the
doctrine would be a perversion of the Fourth
Take the present situation. Of his own accord, the defendant
went beyond a mere denial of complicity in the crimes of which he
was charged and made the sweeping claim that he had never dealt in
or possessed any narcotics. Of course, the Constitution guarantees
a defendant the fullest opportunity to meet the accusation against
him. He must be free to deny all the elements of the case against
him without thereby giving leave to the Government to introduce by
way of rebuttal evidence illegally secured by it, and therefore not
available for its case in chief. Beyond that, however, there is
hardly justification for letting the defendant affirmatively resort
to perjurious testimony in reliance on the Government's disability
to challenge his credibility. [Footnote 3
Page 347 U. S. 66
The situation here involved is to be sharply contrasted with
that presented by Agnello v. United States, 269 U. S.
. There, the Government, after having failed in its
efforts to introduce the tainted evidence in its case in chief,
tried to smuggle it in on cross-examination by asking the accused
the broad question "Did you ever see narcotics before?" [Footnote 4
] After eliciting the
expected denial, it sought to introduce evidence of narcotics
located in the defendant's home by means of an unlawful search and
seizure, in order to discredit the defendant. In holding that the
Government could no more work in this evidence on cross-examination
than it could in its case in chief, the Court foreshadowed, perhaps
unwittingly, the result we reach today:
"And the contention that the evidence of the search and seizure
was admissible in rebuttal is without merit. In his direct
examination, Agnello was not asked and did not testify concerning
the can of cocaine. In cross-examination, in answer to a question
permitted over his objection, he said he had never seen it. He did
nothing to waive his constitutional protection or to justify
cross-examination in respect of the evidence claimed to have been
obtained by the search. . . ."
269 U.S. at 269 U. S.
The judgment is
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent.
This denial squarely contradicted the affidavit filed by the
defendant in the earlier proceeding, in connection with his motion
under Fed.Rules Crim.Proc. rule 41(e) to suppress the evidence
"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated. . . ."
Cf. Michelson v. United States, 335 U.
, 335 U. S.
"The price a defendant must pay for attempting to prove his good
name is to throw open the entire subject which the law has kept
closed for his benefit and to make himself vulnerable where the law
otherwise shields him."
The underlying rationale of the Michelson
disposes of the evidentiary question raised by petitioner,
"whether defendant's actual guilt under a former indictment
which was dismissed may be proved by extrinsic evidence introduced
to impeach him in a prosecution for a subsequent offense."
Transcript of Record, p. 476, Agnello v. United States,
269 U. S. 20