Having good reason to believe that it sheltered an illicit
distillery, a federal officer obtained a daytime search warrant for
petitioner's home, but obtained no warrant for his arrest. After
dark, and without using the search warrant, but with good reason to
believe that liquor was being illegally distilled in the house,
federal officers forced their way into the house and, without
arresting anyone there at the time, seized distilling equipment.
Petitioner was then absent, and he was not arrested until he
returned to the house an hour later. At petitioner's trial in
federal court, the distilling equipment was admitted in evidence
over his objection, and he was convicted of violations of federal
the search and seizure violated the Fourth
Amendment, for they cannot be justified on the ground that the
officers had probable cause to believe that the house contained
contraband materials; and the admission of the evidence so seized
vitiated the conviction. Pp. 357 U. S.
(a) Probable cause for belief that certain articles subject to
seizure are in a home cannot, of itself, justify a search without a
warrant. Pp. 357 U. S.
(b) United States v. Rabinowitz, 339 U. S.
, distinguished. P. 357 U. S.
(c) The issue whether the search and seizure were justified as
incident to petitioner's lawful arrest is not fairly presented in
this case, for the testimony of the federal officers makes clear
that their purpose in entering the house was to search for the
distilling equipment, not to arrest petitioner. Pp. 357 U. S.
245 F.2d 32 reversed.
Page 357 U. S. 494
MR. JUSTICE HARLAN delivered the opinion of the Court.
After a trial without a jury in the Federal District Court for
the Northern District of Georgia, petitioner was found guilty of
various violations of the federal liquor laws, stemming from and
including the possession of an unregistered still. See
U.S.C. (Supp. V) §§ 5601, 5216, 5008, 5681. His claim is that some
of the evidence used against him at the trial should have been
suppressed because it was obtained by an unlawful search and
seizure by federal officers, and that its admission vitiates his
conviction. The importance of maintaining strict standards for the
admissibility of evidence so challenged in the federal courts led
us to grant certiorari. 355 U.S. 810.
Federal alcohol agents received information on April 30, 1956,
that petitioner's farmhouse near Dawsonville, Georgia, was the site
of an illicit distillery in current operation. Investigating this
lead, the agents discovered spent mash, a product resulting from
the distilling of alcohol out of mash, in a hollow behind
petitioner's house. The running mash emerged from a concealed
rubber hose which, when traced as far as was consistent with
caution, led close to petitioner's home. On May 1, four federal
agents and one state officer returned to this vicinity. The
officers observed mash, still emerging from the hose, detected the
distinctive odor of hot mash from the direction of the house, and
heard coming from within the house the sounds of voices and of a
blower burner, commonly used in that area to heat distilleries.
At 2 a.m. on May 2, the officers abandoned their watch and
returned to the nearby city of Gainesville. During the day, Federal
Agent Langford obtained from the United States Commissioner there a
search warrant for petitioner's house on the basis
of an affidavit
Page 357 U. S. 495
describing what had been discovered and asserting the officer's
belief that the house sheltered an illicit distillery. Late that
afternoon, but still in daylight, the five officers resumed their
surveillance of the house. Rather than execute the daytime warrant
at once, they decided to make further observations to determine
which parties were implicated in the operations and whether any
vehicles were being used.
About 9 p.m., after darkness had set in, a truck entered
petitioner's yard and retreated out of the officers' sight behind
the house. Loud noises were heard, and when the truck shortly
thereafter sought to regain the public road in front of the house,
it became stuck in petitioner's driveway. The officers arrested the
two men in the truck and seized what turned out to be 413 gallons
of nontaxpaid liquor. At that time, a passenger car carrying
petitioner's wife and children drove into the yard. The wife rushed
to the house and reached the doorway before the federal officers
who were then advancing towards it. She sought to block entry by
placing her arms across the door, and when informed by Langford of
his identity as a federal officer, she demanded to see his search
warrant. Langford said that a warrant was not required, and the
officers brushed past Mrs. Jones into the house, seizing from the
hands of her young boy a shotgun which he was brandishing in an
apparent effort to prevent entry.
In the house at that time, in addition to Mrs. Jones and the
children, were petitioner's father and brother. The officers did
not arrest any of them, but immediately engaged in a general search
of the house. The evidence later admitted against petitioner at the
trial, including a boiler, fuel burner, and 15 barrels, was seized
in rear rooms and in the attic. Petitioner was arrested when he
returned to his house about one hour after the search had been
Page 357 U. S. 496
Petitioner moved before trial to suppress the use in evidence of
the articles seized in his home. During the hearing on this motion,
the Government conceded that, by the time petitioner's house was
searched, the daytime search warrant had expired, and it disclaimed
any intention on the part of the federal officers to execute it.
Rather it urged that ". . . it is the reasonableness of the search
which is under question." Federal Agent Evans testified that he
thought a nighttime search warrant could be dispensed with because
" . . . the crime was being committed in our presence, at least I
assumed we had probable cause for that." [Footnote 1
] And Agent Langford explained his position
by stating: " . . . I thought we had sufficient evidence to go in
the premises without a search warrant." [Footnote 2
] The court, in denying the motion to
suppress, entered findings of fact and conclusions of law wherein
"The Court finds that the facts and circumstances within the
knowledge of the officers were sufficient in themselves to warrant
a man of reasonable caution
Page 357 U. S. 497
in the belief that an offense was being committed, and therefore
the Court finds that probable cause for the search existed at the
time the search was made."
Since this was so, and since ". . . a cautious man [would have
been warranted] in the belief that [petitioner] was guilty of the
offense of operating an illicit distillery in his home . . . ," the
court deemed the search reasonable, and hence justified, despite
the failure of the officers to obtain a nighttime warrant, and
despite their ability, under the circumstances, to have sought such
a warrant before entering the house. In so holding, the District
Court relied upon United States v. Rabinowitz,
339 U. S. 56
Court of Appeals affirmed on the basis of the findings of the
district judge. 245 F.2d 32.
Although it must be recognized that the basis of the two lower
court decisions is not wholly free from ambiguity, a careful
consideration of the record satisfies us that the search and
seizure were considered to have been justified because the officers
had probable cause to believe that petitioner's house contained
contraband materials which were being utilized in the commission of
a crime, and not because the search and seizure were incident to
petitioner's arrest. So viewed, the judgments below cannot be
squared with the Fourth Amendment to the Constitution of the United
States [Footnote 3
] and with
the past decisions of this Court.
It is settled doctrine that probable cause for belief that
certain articles subject to seizure are in a dwelling cannot of
itself justify a search without a warrant. Agnello
Page 357 U. S. 498
United States, 269 U. S. 20
269 U. S. 33
] Taylor v.
United States, 286 U. S. 1
286 U. S. 6
decisions of this Court have time and again underscored the
essential purpose of the Fourth Amendment to shield the citizen
from unwarranted intrusions into his privacy. See, e.g.,
Johnson v. United States, 333 U. S. 10
333 U. S. 14
McDonald v. United States, 335 U.
, 335 U. S. 455
cf. Giordenello v. United States, 357 U.
. This purpose is realized by Rule 41 of the
Federal Rules of Criminal Procedure, which implements the Fourth
Amendment by requiring that an impartial magistrate determine from
an affidavit showing probable cause whether information possessed
by law enforcement officers justifies the issuance of a search
warrant. Were federal officers free to search without a warrant
merely upon probable cause to believe that certain articles were
within a home, the provisions of the Fourth Amendment would become
empty phrases, and the protection it affords largely nullified.
The facts of this case impressively bear out these observations,
for it is difficult to imagine a more severe invasion of privacy
than the nighttime intrusion into a private home that occurred in
this instance. The Criminal Rules specifically deal with searches
of this character by restricting nighttime warrants to situations
where the affidavits upon which they are issued " . . . are
that the property is . . . in the place to be
searched. . . ." Rule 41(c). (Italics added.) This Rule is hardly
compatible with a principle that a search
Page 357 U. S. 499
without a warrant can be based merely upon probable cause.
The case of United States v. Rabinowitz, supra,
which the District Court relied, has no application here. There,
federal agents, without a search warrant, explored the office of
the defendant and thereby obtained evidence used against him at
trial. But, immediately after entering the office and before their
search, the agents executed a warrant they had previously obtained
for the defendant's arrest. The Court stressed that the legality of
the search was entirely dependent upon an initial valid arrest. 339
U.S. at 339 U. S. 60
The exceptions to the rule that a search must rest upon a search
warrant have been jealously and carefully drawn, and search
incident to a valid arrest is among them. See, e.g., United
States v. Jeffers, 342 U. S. 48
342 U. S. 51
Brinegar v. United States, 338 U.
; Johnson v. United States, supra,
333 U. S. 14
None of these exceptions obtains in this case.
The Government, however, for the first time now maintains that
the search and seizure were justifiable as incident to petitioner's
lawful arrest. Its argument is: the federal agents involved in this
search had authority under federal law to arrest without a warrant
upon probable cause to believe that a person had committed a
felony. From the record, it is "rational" to infer that the federal
agents entered petitioner's house with the purpose of arresting
him, upon probable cause to believe that he was guilty of a felony
and that he was then in the house. Consequently, the agents' entry
was justified and, once in the house, while searching for
petitioner, they could properly seize all contraband material in
plain sight. The fact that petitioner was not found should not
vitiate the legality of the seizures.
These contentions, if open to the Government here, would
confront us with a grave constitutional question, namely, whether
the forceful nighttime entry into a � 1 and
S. 500� dwelling to arrest a person reasonably
believed within, upon probable cause that he had committed a
felony, under circumstances where no reason appears why an arrest
warrant could not have been sought, is consistent with the Fourth
Amendment. But we do not consider this issue fairly presented by
this case, for the record fails to support he theory now advanced
by the Government. The testimony of the federal officers makes
clear beyond dispute that their purpose in entering was to search
for distilling equipment, and not to arrest petitioner.
notes 1 and
Since the evidence obtained through this unlawful search was
admitted at the trial, the judgment of the Court of Appeals must
MR. JUSTICE BLACK concurs in the result.
This witness further testified:
"Q. What crime did you see committed inside the house before you
went inside to search the place?"
"A. I didn't see any crime."
"Q. What crime did you say was committed in your presence?"
"A. The one I saw was the transporting of the whiskey out
through his yard."
"Q. Through his yard?"
"A. Yes, sir."
"Q. You stopped that truck, didn't you?"
"A. Yes, sir."
"Q. You arrested the occupants of that truck, did you not?"
"A. Yes, sir."
"Q. Neither one of the occupants of that truck fled into that
house, did they?"
"A. No, sir."
"Q. So you had no knowledge that anyone else was even in the
house, had you?"
"A. If you mean by 'knowledge,' did I see anyone else inside the
house, no, sir."
On cross-examination, Langford testified:
"Q. Mrs. Jones did ask you not to come in, did she not?"
"A. That is correct."
"Q. Mrs. Jones asked you, did she or not ask you to wait until
her husband got there?"
"A. I believe she did, yes."
These answers amplified his earlier testimony:
"Q. . . . Then you didn't wait until Mr. Jones, himself, came
home, did you?"
"A. I did not."
"Q. Yet they were his premises?"
"A. That is correct."
"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
the Court said:
"Save in certain cases as incident to arrest, there is no
sanction in the decisions of the courts, federal or state, for the
search of a private dwelling house without a warrant. Absence of
any judicial approval is persuasive authority that it is unlawful.
. . . 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
269 U.S. at 269 U. S.
We cannot accept the suggestion that the entry was justified
since it was made to disarm petitioner's young son of the shotgun.
The record plainly enough reveals that this was but a passing
episode in the course of the entry, and that the officers
immediately proceeded to a search of the entire house.
MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON concurs,
Although there are many ways to kill a cat, drowning remains the
most favored. The Court applies that method to this conviction --
drowning it by watering down the Findings of Fact and Conclusions
of Law. By attributing to them a diluted meaning, the judgments of
the District Court and the Court of Appeals are rendered
The District Court found that the officers in this moonshine
liquor case received information that petitioner, previously known
to them as a liquor law violator, was operating an illicit
distillery in his home. In the course of an investigation, the
officers (1) found "spent mash" flowing from a hose which was
traced to within 75 yards
Page 357 U. S. 501
of the house, (2) heard a "blower burner" of the type generally
used in illicit distilleries, (3) smelled the odor of hot mash
coming from the house, and (4) heard the moving of heavy objects
from within the house. These observations were gained over a
two-day period. On the third day, the officers returned with a
daylight search warrant, but decided to resume surveillance instead
of immediately executing the warrant. After dark, as one person
left the house to walk up the road, the officers heard
conversation, specifically, an inquiry as to whether "they were
ready for the truck to be brought to the house." An empty truck
then entered the yard and drove to the back door of the house,
where a thumping sound suggesting "activity with heavy objects" was
heard. The truck, heavily laden, became stuck on its attempt to
leave the yard; its two occupants then were arrested, and its
contents -- 413 gallons of nontax paid liquor -- were seized.
Thereafter, petitioner's wife and son, who had just arrived,
attempted to bar the officers' entry into the house, telling them
to wait until petitioner returned. The officers entered anyway,
and, in the course of a search, found the disputed evidence. The
record reveals that petitioner was not found in the search of the
premises, but was arrested when he returned later in the
From these findings, common sense would seem to dictate the
conclusion that the officers, not believing the statement of
petitioner's wife that he was not there, entered the house to find
and arrest petitioner. It was his house, he was known as a prior
offender, and it was he who was implicated by the tip which
launched the investigation. The district judge, in fact, concluded
"the officers had reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that Roy Jones was guilty of the offense
of operating an illicit distillery in his home. . . . "
Page 357 U. S. 502
The Court, however, takes these findings and conclusions to mean
that both the District Court and the Court of Appeals considered
the search and seizure justified
"because the officers had probable cause to believe that
petitioner's house contained contraband materials which were being
utilized in the commission of a crime, and not because the search
and seizure were incident to petitioner's arrest."
It is our duty, when the meaning of the findings is somewhat
doubtful, to so construe them as to conform with and uphold the
judgment. Cf. Larkin v. Upton, 144 U. S.
, 144 U. S. 21
(1892); Loring v. Frue, 104 U. S. 223
104 U. S. 224
(1881). This the Court has not done. The Court's construction is
all the more surprising because it places the judgments below in
direct conflict with an elementary rule of hornbook law, namely,
that officers may not search a dwelling without a warrant
"notwithstanding facts unquestionably showing probable cause."
Agnello v. United States, 269 U. S.
, 269 U. S. 33
(1925). I feel certain the four learned judges on the two lower
courts were well acquainted with the Agnello
that they used the words "probable cause" as referring not
ultimately to the search of the premises, but instead to the arrest
of petitioner and any others violating the law within the house.
This is borne out by the definition with which the trial judge
introduced the crucial paragraph of his Conclusions of Law:
"Probable cause is reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the party is guilty of the offense
with which he is charged."
Furthermore, the trial judge relied on United States v.
Rabinowitz, 339 U. S. 56
(1950), a case where the legality of a search hinged on the
legality of an arrest. The majority, noting the judge's use of
would have us believe that the case "has no
application here"; on the contrary, it would appear that the
Page 357 U. S. 503
has overlooked the only reason for which the case was cited.
I submit that the officers had authority to enter the house,
arrest any persons engaged in the illicit operation, and, not
finding petitioner, arrest him upon his return to the scene. Under
the law as I have always understood it, an officer, even over
protest, may enter a house to make an arrest where he has probable
cause to believe that a felony is being or has been committed and
that the perpetrators are in the house. Mullaney v. United
82 F.2d 638; Appell v. United States,
279; Mattus v. United States,
11 F.2d 503; 1 Wharton,
Criminal Procedure (10th ed.), § 51; Wilgus, Arrest Without a
Warrant, 22 Mich.L.Rev. 541, 798, 800-807. Cf. Taylor v. United
States, 286 U. S. 1
286 U. S. 6
Agnello v. United States, supra,
at 269 U. S. 30
There being probable cause here to believe that a felon was within
the house, the entry of the officers was lawful, even though after
a complete search the belief was found to be incorrect. Love v.
170 F.2d 32, 33. Such a circumstance "cannot be
distinguished on any reasonable basis from the search of the
premises of an accused as an incident to the lawful arrest of his
person. . . ." Martin v. United States,
183 F.2d 436,
Since the entry of petitioner's home was lawful, the officers
had a right to seize the contraband property. The only test is the
lawfulness of the officers' activity when they come upon the
offending property. If the seizure follows a lawful entry to effect
an arrest, as here, then it is valid. See Harris v. United
States, 331 U. S. 145
(1947), seizure during lawful search incident to arrest for another
crime; Steele v. United States, 267 U.
(1925), seizure during execution of warrant for
I believe that these principles control here, and would,