With no indictment and on his own complaint, a federal officer
obtained a warrant for petitioner's arrest, but obtained no search
warrant. His complaint was not based on his personal knowledge, did
not indicate the source of his belief that petitioner had committed
a crime, and set forth no other sufficient basis for a finding of
probable cause. With this warrant, he arrested petitioner and
seized narcotics in his possession. The arrest and seizure were not
challenged at petitioner's arraignment, but a motion to suppress
the use of the narcotics in evidence was made and denied before his
trial. They were admitted in evidence at his trial in a federal
district court, and he was convicted.
Held: The arrest and seizure were illegal, the
narcotics should not have been admitted in evidence, and
petitioner's conviction must be set aside. Pp.
357 U. S.
481-488.
1. By waiving preliminary examination before the Commissioner,
petitioner did not surrender his right to contest in court the
validity of the warrant on the grounds here asserted. Pp.
357 U. S.
483-484.
2. Under Rules 3 and 4 of the Federal Rules of Criminal
Procedure, read in the light of the Fourth Amendment, probable
cause was not shown by the complaint, and the warrant for arrest
was issued illegally. Pp.
357 U. S.
484-487.
3. Having relied entirely in the courts below on the validity of
the warrant, the Government cannot contend in this Court that the
arrest was justified apart from the warrant, because the arresting
officer had probable cause to believe that petitioner had committed
a felony; nor should the case be sent back to the District Court
for a special hearing on the issue of probable cause. Pp.
487-488.
241 F.2d 575 reversed.
Page 357 U. S. 481
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner was convicted of the unlawful purchase of narcotics,
see 26 U.S.C. (Supp. V) § 4704, after a trial without a
jury before the Federal District Court for the Southern District of
Texas. A divided Court of Appeals affirmed. 241 F.2d 575. We
granted certiorari to consider petitioner's challenge to the
legality of his arrest and the admissibility in evidence of the
narcotics seized from his person at the time of the arrest. 355
U.S. 811.
Agent Finley of the Federal Bureau of Narcotics obtained a
warrant for the arrest of petitioner from the United States
Commissioner in Houston, Texas, on January 26, 1956. This warrant,
issued under Rules 3 and 4 of the Federal Rules of Criminal
Procedure (
see note 3
infra), was based on a written complaint, sworn to by
Finley, which read in part:
"The undersigned complainant [Finley] being duly sworn states:
That on or about January 26, 1956, at Houston, Texas in the
Southern District of Texas, Veto Giordenello did receive, conceal,
etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge
of unlawful importation; in violation of Section 174, Title 21,
United States Code."
"And the complainant further states that he believes that ______
_______ are material witnesses in relation to this charge."
About 6 o'clock in the afternoon of the following day, January
27, Finley saw petitioner drive up to his residence in a car and
enter the house. He emerged shortly
Page 357 U. S. 482
thereafter and drove away in the same car, closely followed in a
second car by a person described by Finley as a "well-known police
character." Finley pursued the cars until they stopped near another
residence which was entered by petitioner. When petitioner left
this residence, carrying a brown paper bag in his hand, and
proceeded towards his car, Finley executed the arrest warrant and
seized the bag, which proved to contain a mixture of heroin and
other substances. Although warned of his privilege to remain
silent, petitioner promptly admitted purchasing the heroin in
Chicago and transporting it to Houston.
On January 28, petitioner appeared with counsel before a United
States Commissioner. He waived the preliminary examination
contemplated by Rule 5 of the Rules of Criminal Procedure,
see p.
357 U. S. 483,
infra, and was arraigned on the complaint upon which the
arrest warrant had been issued on January 26. [
Footnote 1] Prior to trial, petitioner, alleging
for the first time that his arrest and the coincident seizure from
his person of the paper bag were illegal, moved to suppress for use
as evidence the heroin found in the bag. This motion was denied by
the District Court, and petitioner's conviction and its affirmance
by the Court of Appeals followed.
In this Court, petitioner argues, as he did below, that Finley's
seizure of the heroin was unlawful, since the warrant of arrest was
illegal and the seizure could be justified only as incident to a
legal arrest, and that, consequently, the admission of the heroin
into evidence was
Page 357 U. S. 483
error which requires that his conviction be set aside. The
Government contends that petitioner waived his right to challenge
the legality of his arrest, and hence to object to the
admissibility of this evidence, by failing to question the
sufficiency of the warrant at the time he was brought before the
United States Commissioner. It further asserts that the arrest
warrant satisfied the Federal Rules of Criminal Procedure, and,
alternatively, that the arrest can be sustained apart from the
warrant because Finley had probable cause to believe that
petitioner had committed a felony. The Government recognizes that,
since Finley had no search warrant, the heroin was admissible in
evidence only if its seizure was incident to a lawful arrest,
see United States v. Rabinowitz, 339 U. S.
56,
339 U. S. 60,
and that, if the arrest was illegal, the admission of this evidence
was reversible error.
I
We think it clear that petitioner, by waiving preliminary
examination before the United States Commissioner, did not
surrender his right subsequently to contest in court the validity
of the warrant on the grounds here asserted. A claim of this nature
may involve legal issues of subtlety and complexity which it would
be unfair to require a defendant to present so soon after arrest,
and in many instances, as here, before his final selection of
counsel.
In addition, examination of the purpose of the preliminary
examination before a Commissioner makes evident the unsoundness of
the Government's position. Rule 5(c) of the Federal Rules of
Criminal Procedure provides in part:
"If, from the evidence, it appears to the commissioner that
there is probable cause to believe that an offense has been
committed and that the defendant
Page 357 U. S. 484
has committed, it, the commissioner shall forthwith hold him to
answer in the district court; otherwise the commissioner shall
discharge him."
By waiving preliminary examination, a defendant waives no more
than the right which this examination was intended to secure him --
the right not to be held in the absence of a finding by the
Commissioner of probable cause that he has committed an
offense.
By the same token, the Commissioner here had no authority to
adjudicate the admissibility at petitioner's later trial of the
heroin taken from his person. That issue was for the trial court.
This is specifically recognized by Rule 41(e) of the Criminal
Rules, which provides that a defendant aggrieved by an unlawful
search and seizure may ". . . move the district court . . . to
suppress for use as evidence anything so obtained on the ground
that . . ." the arrest warrant was defective on any of several
grounds. This was the procedural path followed by petitioner, and
we hold it proper to put in issue the legality of the warrant.
Cf. Albrecht v. United States, 273 U. S.
1,
273 U. S.
9-11.
II
Petitioner challenges the sufficiency of the warrant on two
grounds: (1) that the complaint on which the warrant was issued was
inadequate because the complaining officer, Finley, relied
exclusively upon hearsay information, rather than personal
knowledge in executing the complaint; and (2) that the complaint
was, in any event, defective in that it, in effect, recited no more
than the elements of the crime charged, namely the concealment of
heroin with knowledge of its illegal importation in violation of 21
U.S.C. § 174. [
Footnote 2]
Page 357 U. S. 485
It appears from Finley's testimony at the hearing on the
suppression motion that until the warrant was issued on January 26
his suspicions of petitioner's guilt derived entirely from
information given him by law enforcement officers and other persons
in Houston, none of whom either appeared before the Commissioner or
submitted affidavits. But we need not decide whether a warrant may
be issued solely on hearsay information, for in any event we find
this complaint defective in not providing a sufficient basis upon
which a finding of probable cause could be made.
Criminal Rules 3 and 4 provide that an arrest warrant shall be
issued only upon a written and sworn complaint (1) setting forth
"the essential facts constituting the offense charged," and (2)
showing "that there is probable cause to believe that [such] an
offense has been committed and that the defendant has committed it.
. . ." [
Footnote 3] The
provisions of these Rules must be read in light of the
constitutional requirements they implement. The language of the
Fourth Amendment, that
". . . no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing . . .
the persons or things to be seized . . . ,"
of course applies to
Page 357 U. S. 486
arrest as well as search warrants.
See
Ex parte
Burford, 3 Cranch 448;
McGrain v.
Daugherty, 273 U. S. 135,
273 U. S.
154-157. The protection afforded by these Rules, when
they are viewed against their constitutional background, is that
the inferences from the facts which lead to the complaint
". . . 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."
Johnson v. United States, 333 U. S.
10,
333 U. S. 14.
The purpose of the complaint, then, is to enable the appropriate
magistrate, here a Commissioner, to determine whether the "probable
cause" required to support a warrant exists. The Commissioner must
judge for himself the persuasiveness of the facts relied on by a
complaining officer to show probable cause. He should not accept
without question the complainant's mere conclusion that the person
whose arrest is sought has committed a crime.
When the complaint in this case is judged with these
considerations in mind, it is clear that it does not pass muster,
because it does not provide any basis for the Commissioner's
determination under Rule 4 that probable cause existed. The
complaint contains no affirmative allegation that the affiant spoke
with personal knowledge of the matters contained therein; it does
not indicate any sources for the complainant's belief; and it does
not set forth any other sufficient basis upon which a finding of
probable cause could be made. We think these deficiencies could not
be cured by the Commissioner's reliance upon a presumption that the
complaint was made on the personal knowledge of the complaining
officer. The insubstantiality of such an argument is illustrated by
the facts of this very case, for Finley's testimony at the
suppression hearing clearly showed that he had no personal
knowledge of the matters on which his charge was based. In these
circumstances, it is difficult to understand how the Commissioner
could be expected
Page 357 U. S. 487
to assess independently the probability that petitioner
committed the crime charged. Indeed, if this complaint were upheld,
the substantive requirements would be completely read out of Rule
4, and the complaint would be of only formal significance, entitled
to perfunctory approval by the Commissioner. This would not comport
with the protective purposes which a complaint is designed to
achieve.
It does not avail the Government to argue that, because a
warrant of arrest may be issued as of course upon an indictment,
this complaint was adequate, since its allegations would suffice
for an indictment under Federal Rule of Criminal Procedure 7(c). A
warrant of arrest can be based upon an indictment because the grand
jury's determination that probable cause existed for the indictment
also establishes that element for the purpose of issuing a warrant
for the apprehension of the person so charged. Here, in the absence
of an indictment, the issue of probable cause had to be determined
by the Commissioner, and an adequate basis for such a finding had
to appear on the face of the complaint.
III
In the two lower courts, the Government defended the legality of
petitioner's arrest by relying entirely on the validity of the
warrant. [
Footnote 4] In this
Court, however, its principal contention has been that the arrest
was justified apart from the warrant. The argument is that Texas
law permits arrest without a warrant upon probable cause that the
person arrested has committed a felony; that, in the absence of a
controlling federal statute, as in the case
Page 357 U. S. 488
here, federal officers turn to the law of the State where an
arrest is made as the source of their authority to arrest without a
warrant,
cf. United States v. Di Re, 332 U.
S. 581,
332 U. S. 589;
Johnson v. United States, supra, at
333 U. S. 15;
and that Finley, on the basis of the facts he testified to before
the District Court, must be deemed, within the standards of Texas
law, to have had the probable cause necessary to arrest petitioner
without a warrant.
We do not think that these belated contentions are open to the
Government in this Court, and, accordingly, we have no occasion to
consider their soundness. To permit the Government to inject its
new theory into the case at this stage would unfairly deprive
petitioner of an adequate opportunity to respond. This is so
because in the District Court petitioner, being entitled to assume
that the warrant constituted the only purported justification for
the arrest, had no reason to cross-examine Finley or to adduce
evidence of his own to rebut the contentions that the Government
makes here for the first time.
Nor do we think that it would be sound judicial administration
to send the case back to the District Court for a special hearing
on the issue of probable cause which would determine whether the
verdict of guilty and the judgment already entered should be
allowed to stand. The facts on which the Government now relies to
uphold the arrest were fully known to it at the time of trial, and
there are no special circumstances suggesting such an exceptional
course.
Cf. United States v. Shotwell Mfg. Co.,
355 U. S. 233.
This is not to say, however, that, in the event of a new trial, the
Government may not seek to justify petitioner's arrest without
relying on the warrant.
We hold that the seizure in this case was illegal, that the
seized narcotics should therefore not have been admitted into
evidence, and that petitioner's conviction accordingly must be set
aside. The judgment of the Court of Appeals is
Reversed.
Page 357 U. S. 489
[
Footnote 1]
The indictment returned against petitioner did not refer to the
crime charged in the complaint, but was based on two related
offenses. One, charging possession of unlawfully imported
narcotics, 21 U.S.C. § 174, was dropped by the Government prior to
trial. The other, charging unlawful purchase of narcotics, 26
U.S.C. (Supp. V) § 4704, resulted in petitioner's conviction.
[
Footnote 2]
It appears that in the courts below petitioner relied primarily,
if not entirely, on the first of these grounds. That, of course,
does not prevent him from relying here also on the second ground,
which raises simply a question of law as to the sufficiency of the
complaint.
See United Brotherhood of Carpenters v. United
States, 330 U. S. 395,
330 U. S. 412;
Weems v. United States, 217 U. S. 349,
217 U. S. 362;
Fed.Rules Crim.Proc., Rule 52(b).
[
Footnote 3]
Rule 3:
"The complaint is a written statement of the essential facts
constituting the offense charged. It shall be made upon oath before
a commissioner or other officer empowered to commit persons charged
with offenses against the United States."
Rule 4(a):
". . . If it appears from the complaint that there is probable
cause to believe that an offense has been committed and that the
defendant has committed it, a warrant for the arrest of the
defendant shall issue to any officer authorized by law to execute
it. . . ."
[
Footnote 4]
The Government asked the District Court to take judicial notice
that petitioner was arrested on a "complaint and warrant." In
addition, Finley's testimony and the "return" of the United States
Marshal to the warrant leave no room for doubt that in fact the
warrant constituted the basis for petitioner's arrest.
MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON and MR. JUSTICE
WHITTAKER concur, dissenting.
I agree that petitioner did not waive his right to attack the
complaint by his waiver of preliminary examination. But I cannot
agree to other conclusions of the Court which, for all practical
purposes, free another narcotics peddler, this time on the ground
that the complaint did not provide "a sufficient basis upon which a
finding of probable cause could be made."
The complaint stated that petitioner,
"on or about January 26, 1956, at Houston, Texas . . . , did
receive, conceal, etc., narcotic drugs, to-wit: heroin
hydrochloride with knowledge of unlawful importation,"
citing the statute violated. Petitioner contends that these
allegations did not meet the "essential facts" requirement of Rule
3 of the Federal Rules of Criminal Procedure. The Court does not
pass on this contention, but instead reverses on Rule 4, reasoning
that the complaint was deficient because it contained
"no affirmative allegation that the affiant spoke with personal
knowledge of the matters contained therein; [did] not indicate any
sources for the complainant's belief; and [did] not set forth any
other sufficient basis upon which a finding of probable cause could
be made."
I note that petitioner, in his 39-page brief, does not rely on
Rule 4, satisfying himself with contentions under Rule 3.
The Court is entirely in error in advancing the Rule 4 ground.
The complaint alleged an actual occurrence which under the law
constituted a
prima facie offense -- possession of
narcotics. Unlawful importation is presumed. 35 Stat. 614, as
amended, 21 U.S.C. § 174.
See Casey v. United States,
276 U. S. 413
(1928). Petitioner's contention is that the complaint imported
personal knowledge when, in fact, it was based in part on
information. It thus appears strange for the Court to say that
"deficiencies" in the complaint "could not be
Page 357 U. S. 490
cured by the Commissioner's reliance upon a presumption . . .
[of] personal knowledge." Implicit in petitioner's entire argument
is the fact that no presumption was indulged. The complaint was
positive and absolute in alleging that petitioner on a certain day
and at a specific place "did receive [and] conceal" heroin.
Therefore, the Court's first objection,
i.e., absence of
an allegation of personal knowledge, is manifestly untenable. As to
the second, concerning "sources for the complainant's belief," that
is something never required in a complaint. In fact, as the Court
well knows, sources are considered confidential in narcotics cases,
and divulgence is seldom required. Such a requirement is a wholly
unnecessary and unwarranted extension of Rule 4. Finally, the
catchall objection that the complaint did "not set forth any other
sufficient basis" constituting probable cause overlooks the fact
that Agent Finley directly and explicitly stated under oath that
petitioner "did receive [and] conceal" heroin. It therefore follows
as the night does the day that "probable cause" existed, and the
Commissioner had no recourse other than to issue the warrant.
Neither the Court nor petitioner points out what more must be
alleged.
The caveat that the Commissioner "should not accept without
question the complainant's mere conclusion" is not applicable here.
If the statement that petitioner did "receive" and "conceal"
narcotic drugs is a conclusion, it is also a fact. Unlike other
criminal offenses, narcotics violations require no specific intent,
and there is no need to spell out facts tending to show such
intent. The distinction the Court draws between conclusions and
facts is untenable because there is no need here for inferences,
unlike ordinary criminal cases. If the accused has "possession," he
has committed an offense, absent satisfactory explanation therefor.
And certainly one cannot "receive" and "conceal" without having
"possession."
Page 357 U. S. 491
Relating the purpose served by a complaint to that of an
application for a search warrant, as the Court does here, citing
Johnson v. United States, 333 U. S.
10 (1948), is most unfortunate. The obliteration of
valid distinctions between the two can have little effect on
narcotics cases, because subsequent to the arrest here the Congress
authorized officers to make arrests without a warrant where there
are "reasonable grounds to believe that the person to be arrested
has committed or is committing" a narcotics offense. 70 Stat. 570,
26 U.S.C. (Supp. V) § 7607. But, in other fields of criminal law
enforcement, it increases the great burden already placed on
officers and, like the requirement as to "sources" and "other
evidentiary facts," only beclouds what was clear as to the
requisites of a complaint. The considerations underlying arrest are
not apposite to those of search. As we have seen, arrests can be
made in narcotics cases without a warrant where "reasonable
grounds" are present. Prior to this Federal Act, state law was
applicable, and, in Texas, permitted arrests without a warrant on
"probable cause" to believe a narcotics offense had been committed.
See Giacona v. State, Tex.Cr.R.,
298
S.W.2d 587, 588-589;
Thomas v. State, 163 Tex.Cr.R.
68, 69-70,
288
S.W.2d 791, 792. Search warrants, on the other hand, are
required by the Fourth Amendment "notwithstanding facts
unquestionably showing probable cause."
Agnello v. United
States, 269 U. S. 20,
269 U. S. 33
(1925).
* The Court does
not strike down this complaint directly on the Fourth Amendment,
but merely on an extension of Rule 4. It is unfortunate that
through this byplay the constitutional limitations surrounding
search and seizure are extended to the long-recognized powers of
arrest.
Page 357 U. S. 492
Until petitioner came here, he in no way attacked the complaint
on the ground that it "recited no more than the elements of the
crime charged." The Court admits as much.
See footnote 2 in the majority opinion
Nevertheless, in the face of this admission and without either of
the parties depending on Rule 4, much less briefing and arguing it,
the Court strikes down this conviction on that ground. In the same
breath, it tags as "belated" and refuses on that account to pass on
the unanswerable position of the Government, which was fully
briefed and argued, that the arrest may be upheld under state law,
United States v. Di Re, 332 U. S. 581,
332 U. S. 589
(1948), as one on probable cause without a warrant.
United
States v. Rabinowitz, 339 U. S. 56,
339 U. S. 60
(1950). I cannot subscribe to such a double standard. I ask, how in
fairness can the Court consider and decide the case on a point not
relied on below by petitioner and at the same time throw out the
Government's claim as belated? And particularly so since the Court
of Appeals recognized that claim in this language:
"Moreover, there was enough in the record to make it clear that
an honest official might well have thought he was fully observing
the legal restraints placed upon his actions, and that he had
good cause for arrest even if the warrant already obtained was
invalid since he believed he saw a felony being committed in his
presence. . . ."
(Emphasis added.) 241 F.2d 575, 579.
But assuming that the claim is belated, it states the law, and
our duty is to apply it. Such purblindness may set petitioner free,
but it shackles law enforcement. I dissent.
* Searches incident to a valid arrest are, of course,
excepted.