Without a warrant for search or arrest, federal officers who
were investigating a theft from an interstate shipment of whiskey
twice observed cartons being placed in a motor car in a residential
district, followed and stopped the car, arrested petitioner and
another man who were in it, searched the car, and found and seized
cartons containing radios stolen from an interstate shipment. At
petitioner's trial for unlawfully possessing radios stolen from an
interstate shipment, his timely motion to suppress the evidence so
seized was overruled, and he was convicted.
on the record in this case, the officers did not
have probable cause for the arrest when they stopped the car; the
search was illegal; the articles seized were not admissible in
evidence; and the conviction is reversed. Pp. 361 U. S.
259 F.2d 725 reversed.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner stands convicted of unlawfully possessing three
cartons of radios valued at more than $100 which had been stolen
from an interstate shipment. See
18 U.S.C. § 659. The
issue in the case is whether there was probable cause for the
arrest leading to the search that produced the evidence on which
the conviction rests. A timely motion to suppress the evidence was
Page 361 U. S. 99
petitioner and overruled by the District Court; and the judgment
of conviction was affirmed by the Court of Appeals on a divided
vote. 259 F.2d 725. The case is here on a petition for a writ of
certiorari, 359 U.S. 904.
There was a theft from an interstate shipment of whiskey at a
terminal in Chicago. The next day, two FBI agents were in the
neighborhood investigating it. They saw petitioner and one Pierotti
walk across a street from a tavern and get into an automobile. The
agents had been given, by the employer of Pierotti, information of
an undisclosed nature "concerning the implication of the defendant
Pierotti with interstate shipments." But, so far as the record
shows, he never went so far as to tell the agents he suspected
Pierotti of any such thefts. The agents followed the car and saw it
enter an alley and stop. Petitioner got out of the car, entered a
gangway leading to residential premises, and returned in a few
minutes with some cartons. He placed them in the car, and he and
Pierotti drove off. The agents were unable to follow the car. But
later they found it parked at the same place near the tavern.
Shortly, they saw petitioner and Pierotti leave the tavern, get
into the car, and drive off. The car stopped in the same alley as
before; petitioner entered the same gangway and returned with more
cartons. The agents observed this transaction from a distance of
some 300 feet, and could not determine the size, number or contents
of the cartons. As the car drove off the agents followed it and
finally, when they met it, waved it to a stop. As he got out of the
car, petitioner was heard to say, "Hold it; it is the G's." This
was followed by, "Tell him he [you] just picked me up." The agents
searched the car, placed the cartons (which bore the name "Admiral"
and were addressed to an out-of-state company) in their car, took
the merchandise and petitioner and Pierotti to their office and
held them for about two hours when the agents learned that the
Page 361 U. S. 100
stolen radios. They then placed the men under formal arrest.
The statutory authority of FBI officers and agents to make
felony arrests without a warrant is restricted to offenses
committed "in their presence" or to instances where they have
"reasonable grounds to believe that the person to be arrested has
committed or is committing" a felony. 18 U.S.C. § 3052. The statute
states the constitutional standard, for it is the command of the
Fourth Amendment that no warrants for either searches or arrests
shall issue except
"upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized."
The requirement of probable cause has roots that are deep in our
history. The general warrant, [Footnote 1
] in which the name of the person to be arrested
was left blank, and the writs of assistance, against which James
Otis inveighed, [Footnote 2
both perpetuated the oppressive practice of allowing the police to
arrest and search on suspicion. Police control took the place of
judicial control, since no showing of "probable cause" before a
magistrate was required. The Virginia Declaration of Rights,
adopted June 12, 1776, rebelled against that practice:
"That general warrants, whereby any officer or messenger may be
commanded to search suspected places without evidence of a fact
committed, or to seize any person or persons not named, or whose
offence is not particularly described and supported by evidence,
are grievous and oppressive, and ought not to be granted. "
Page 361 U. S. 101
The Maryland Declaration of Rights (1776), Art. XXIII, was
"That all warrants, without oath or affirmation, to search
suspected places, or to seize any person or property, are grievous
and oppressive; and all general warrants -- to search suspected
places, or to apprehend suspected persons, without naming or
describing the place, or the person in special -- are illegal, and
ought not to be granted."
North Carolina Declaration of Rights (1776),
Art. XI; Pennsylvania Constitution (1776), Art. X; Massachusetts
Constitution (1780), Pt. I, Art. XIV.
That philosophy later was reflected in the Fourth Amendment. And
as the early American decisions both before [Footnote 3
] and immediately after [Footnote 4
] its adoption show, common rumor
or report, suspicion, or even "strong reason to suspect" [Footnote 5
] was not adequate to support
a warrant for arrest. And that principle has survived to this day.
See United States v. Di Re, 332 U.
, 332 U. S.
-595; Johnson v. United States, 333 U. S.
, 333 U. S. 13
Giordenello v. United States, 357 U.
, 357 U. S. 486
Its high water was Johnson v. United States, supra,
the smell of opium coming from a closed room was not enough to
support an arrest and search without a warrant. It was against this
background that two scholars recently wrote, "Arrest on mere
suspicion collides violently with the basic human right of
liberty." [Footnote 6
Page 361 U. S. 102
Evidence required to establish guilt is not necessary.
Brinegar v. United States, 338 U.
; Draper v. United States, 358 U.
. On the other hand, good faith on the part of the
arresting officers is not enough. Probable cause exists if the
facts and circumstances known to the officer warrant a prudent man
in believing that the offense has been committed. Stacey v.
Emery, 97 U. S. 642
97 U. S. 645
And see Director General v. Kastenbaum, 263 U. S.
, 263 U. S. 28
United States v. Di Re, supra,
at 332 U. S. 592
Giordenello v. United States, supra,
at 357 U. S. 486
It is important, we think, that this requirement be strictly
enforced, for the standard set by the Constitution protects both
the officer and the citizen. If the officer acts with probable
cause, he is protected even though it turns out that the citizen is
innocent. Carroll v. United States, 267 U.
, 267 U. S. 156
And while a search without a warrant is, without limits,
permissible if incident to a lawful arrest, if an arrest without a
warrant is to support an incidental search, it must be made with
probable cause. Carroll v. United States, supra,
267 U. S.
-156. This immunity of officers cannot fairly be
enlarged without jeopardizing the privacy or security of the
citizen. We turn then to the question whether prudent men in the
shoes of these officers (Brinegar v. United States, supra,
at 338 U. S. 175
would have seen enough to permit them to believe that petitioner
was violating or had violated the law. We think not.
Page 361 U. S. 103
The prosecution conceded below, and adheres to the concession
here, [Footnote 7
] that the
arrest took place when the federal agents stopped the car. That is
our view on the facts of this particular case. When the officers
interrupted the two men and restricted their liberty of movement,
the arrest, for purposes of this case, was complete. It is,
therefore, necessary to determine whether, at or before that time,
they had reasonable cause to believe that a crime had been
committed. The fact that afterwards contraband was discovered is
not enough. An arrest is not justified by what the subsequent
search discloses, as Johnson v. United States, supra,
It is true that a federal crime had been committed at a terminal
in the neighborhood, whisky having been stolen from an interstate
shipment. Petitioner's friend, Pierotti, had been suspected of some
implication in some interstate shipments, as we have said. But, as
this record stands, what those shipments were and the manner in
which he was implicated remain unexplained and undefined. The rumor
about him is therefore practically meaningless. On the record,
there was far from enough evidence against him to justify a
magistrate in issuing a warrant. So far as the record shows,
petitioner had not even been suspected of criminal activity prior
to this time. Riding in the car, stopping in an alley, picking up
packages, driving away -- these were all acts that were outwardly
innocent. Their movements in the car had no mark of fleeing men or
men acting furtively. The case might be different if the packages
had been taken from a terminal or from an interstate trucking
platform. But they were not. As we have said, the alley where the
packages were picked up was in a residential section.
Page 361 U. S. 104
The fact that packages have been stolen does not make every man
who carries a package subject to arrest, nor the package subject to
seizure. The police must have reasonable grounds to believe that
the particular package carried by the citizen is contraband. Its
shape and design might at times be adequate. The weight of it and
the manner in which it is carried might at times be enough. But
there was nothing to indicate that the cartons here in issue
probably contained liquor. The fact that they contained other
contraband appeared only some hours after the arrest. What
transpired at or after the time the car was stopped by the officers
is, as we have said, irrelevant to the narrow issue before us. To
repeat, an arrest is not justified by what the subsequent search
discloses. Under our system, suspicion is not enough for an officer
to lay hands on a citizen. It is better, so the Fourth Amendment
teaches, that the guilty sometimes go free than that citizens be
subject to easy arrest.
The fact that the suspects were in an automobile is not enough.
Carroll v. United States, supra,
liberalized the rule
governing searches when a moving vehicle is involved. But that
decision merely relaxed the requirements for a warrant on grounds
of practicality. It did not dispense with the need for probable
MR. JUSTICE BLACK concurs in the result.
Declared illegal by the House of Commons in 1766. 16 Hansard,
Quincy's Miss.Rep. 1761-1772, Appendix, p. 469.
Frisbie v. Butler,
Kirby's Rep. (Conn.) 1785-1788, p.
Conner v. Commonwealth,
3 Bin.(Pa.) 38; Grumon v.
1 Conn. 40; Commonwealth v. Dana,
Conner v. Commonwealth, supra, note 4
3 Bin. at 43.
Hogan and Snee, The McNabb-Mallory
Rule: Its Rise,
Rationale and Rescue, 47 Geo.L.J. 1, 22.
Uniform Crime Reports for the United States, compiled by the
Federal Bureau of Investigation (Vol. XXVIII, No. 1, Semiannual
Bull., 1957), pp. 64, 65, shows 1956 arrest statistics for 1,025
cities in the United States, including 26 cities over 250, 000
population and 458 cities under 10,000 population.
The report states that 111,274 were arrested on suspicion (but
not in connection with any specific offense) and subsequently
released without prosecution. This was at the rate of 280.4 per
The grand total of persons arrested -- both for a specific
offense (but excluding traffic offenses) and on suspicion alone --
and released without being held for prosecution was 264,601. This
was at the rate of 666.7 per 100,000 inhabitants.
An alternative theory that the arrest took place at a subsequent
time was discussed by the Government only to make clear that it
would press that position on the facts of another case now pending
here, No. 52, Rios v. United States.
MR. JUSTICE CLARK, whom THE CHIEF JUSTICE joins, dissenting.
The Court decides this case on the narrow ground that the arrest
took place at the moment the Federal Bureau of Investigation agents
stopped the car in which petitioner was riding, and at that time
probable cause for it did not exist. While the Government,
unnecessarily, it seems to me, conceded that the arrest was made at
Page 361 U. S. 105
time the car was stopped, this Court is not bound by the
Government's mistakes. *
The record shows beyond dispute that the agents had received
information from co-defendant Pierotti's employer implicating
Pierotti with interstate shipments. The agents began a surveillance
of petitioner and Pierotti after recognizing them as they came out
of a bar. Later, the agents observed them loading cartons into an
automobile from a gangway up an alley in Chicago. The agents had
been trailing them, and after it appeared that they had delivered
the first load of cartons, the suspects returned to the same
platform by a circuitous route through streets and alleys. The
agents then saw petitioner load another set of cartons into the car
and drive off with the same . A few minutes later, the agents
stopped the car, alighted from their own car, and approached the
petitioner. As they did so, petitioner was overheard to say: "Hold
it; it is the G's," and "Tell him he [you] just picked me up."
Since the agents had actually seen the two suspects together for
several hours, it was apparent to them that the statement was
untrue. Upon being questioned, the defendants stated that they had
borrowed the car from a friend. During the questioning and after
petitioner had stepped out of the car, one of the agents happened
to look through the door of the car which petitioner had left open
and saw three cartons stacked up inside which resembled those
petitioner had just loaded into the car from the gangway. The agent
saw that the cartons bore Admiral shipping labels and were
addressed to a company in Cincinnati, Ohio. Upon further
questioning, the agent was told that the cartons
Page 361 U. S. 106
were in the car when the defendants borrowed it. Knowing this to
be untrue, the agents then searched the car, arrested petitioner
and his companion, and seized the cartons.
The Court seems to say that the mere stopping of the car
amounted to an arrest of the petitioner. I cannot agree. The
suspicious activities of the petitioner during the somewhat
prolonged surveillance by the agents warranted the stopping of the
car. The sighting of the cartons with their interstate labels in
the car gave the agents reasonable ground to believe that a crime
was in the course of its commission in their very presence. The
search of the car and the subsequent arrest were therefore lawful,
and the motion to suppress was properly overruled.
In my view, the time at which the agents were required to have
reasonable grounds to believe that petitioner was committing a
felony was when they began the search of the automobile, which was
after they had seen the cartons with interstate labels in the car.
The earlier events certainly disclosed ample grounds to justify the
following of the car, the subsequent stopping thereof, and the
questioning of petitioner by the agents. This interrogation,
together with the sighting of the cartons and the labels, gave the
agents indisputable probable cause for the search and arrest.
When an investigation proceeds to the point where an agent has
reasonable grounds to believe that an offense is being committed in
his presence, he is obligated to proceed to make such searches,
seizures, and arrests as the circumstances require. It is only by
such alertness that crime is discovered, interrupted, prevented,
and punished. We should not place additional burdens on law
I would affirm the judgments on the rationale of Brinegar v.
United States, 338 U. S. 160
(1949), and Carroll v. United States, 267 U.
* It may be that the Government is doing some wishful thinking
in regard to the relaxation of the standards incident to the
"probable cause" requirement by making this a test case. We should
not lend ourselves to such indulgence.