One Jones was apprehended crossing the border from Mexico with
cocaine, allegedly given to him by, and to be delivered to,
"Johnny" in Los Angeles. Customs officers arranged for Jones to
make delivery. Shortly after Jones entered "Johnny's" apartment,
customs agents, without a warrant, knocked on the door, waited a
few seconds, and, receiving no response, opened the unlocked door
and entered. They arrested petitioner, searched the apartment, and
found the cocaine and other items. The cocaine was introduced over
objection at petitioner's trial for knowingly importing and
concealing narcotics, and he was convicted. The Court of Appeals
held that the agents did not "break open" the door within the
meaning of 18 U.S.C. § 3109, which provides in part that an
"officer may break open any outer or inner door or window of a
house . . . to execute a search warrant, if, after notice of his
authority and purpose, he is refused admittance or when necessary
to liberate himself or a person aiding him,"
and that they were therefore not required to make a prior
announcement of "authority and purpose."
Held:
1. The validity of an entry of a federal officer to effect a
warrantless arrest "must be tested by criteria identical to those
embodied in" 18 U.S.C. § 3109, which deals with an entry to execute
a search warrant.
Miller v. United States, 357 U.
S. 301;
Wong Sun v. United States, 371 U.
S. 471. Pp.
391 U. S.
588-589.
2. Section 3109, a codification of the common law rule of
announcement, basically proscribes an unannounced intrusion into a
dwelling, which includes opening a closed but unlocked door. Pp.
391 U. S.
589-591.
3. Whether or not exigent circumstances would excuse compliance
with § 3109, here there were none, as the agents had no basis for
assuming petitioner was armed or that he might resist arrest, or
that Jones was in danger. P.
391 U. S.
591.
380 F.2d 108, reversed and remanded.
Page 391 U. S. 586
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether petitioner's arrest was
invalid because federal officers opened the closed but unlocked
door of petitioner's apartment and entered in order to arrest him
without first announcing their identity and purpose. We hold that
the method of entry vitiated the arrest and therefore that evidence
seized in the subsequent search incident thereto should not have
been admitted at petitioner's trial.
On February 19, 1966, one William Jones was detained at the
border between California and Mexico by United States customs
agents, who found in his possession an ounce of cocaine. After some
questioning, Jones told the agents that he had been given the
narcotics in Tijuana, Mexico, by a person named "Johnny," whom he
had accompanied there from Los Angeles. He said he was to transport
the narcotics to "Johnny" in the latter city.
Also found in Jones' possession was a card on which was written
the name "Johnny" and a Los Angeles telephone number. On the
following day at about 3 p.m., Jones made a call to the telephone
number listed on the card; a customs agent dialed the number, and
with Jones' permission, listened to the ensuing conversation. A
male voice answered the call, and Jones addressed the man as
"Johnny." Jones said he was in San Diego, and still had "his
thing." The man asked Jones if he had "any trouble getting through
the line." Jones replied that he had not. Jones inquired whether
"Johnny" planned to remain at home, and upon receiving an
affirmative answer, indicated that he was on his way to Los
Angeles, and would go to the man's apartment.
Page 391 U. S. 587
At about 7:30 that evening, the customs agents went with Jones
to an apartment building in Los Angeles. The agents returned to
Jones the cocaine they had seized from him and placed a small
broadcasting device on him. The agents waited outside the building,
listening on a receiving apparatus. Jones knocked on the apartment
door; a woman answered. Jones asked if "Johnny" was in, and was
told to wait a minute. Steps were heard and then a man asked Jones
something about "getting through the line." Because of noise from a
phonograph in the apartment, reception from the broadcasting device
on Jones' person was poor, but agents did hear the word
"package."
The customs agents waited outside for five to 10 minutes, and
then proceeded to the apartment door. One knocked, waited a few
seconds, and, receiving no response, opened the unlocked door, and
entered the apartment with his gun drawn. Other agents followed, at
least one of whom also had his gun drawn. They saw petitioner
sitting on a couch, in the process of withdrawing his hand from
under the adjacent cushion. After placing petitioner under arrest,
an agent found the package of cocaine under the cushion, and
subsequently other items (
e.g., small pieces of tin foil)
were found in the apartment; officers testified at trial they were
adapted to packaging narcotics.
Petitioner and Jones were indicted for knowingly importing the
cocaine into this country and concealing it, in violation of § 2 of
the Narcotic Drugs Import and Export Act, as amended, 35 Stat. 614,
21 U.S.C. §§ 173 and 174. Petitioner was tried alone. The narcotics
seized at petitioner's apartment were admitted into evidence, over
objection. On appeal following the conviction, the Court of Appeals
for the Ninth Circuit ruled that the officers, in effecting entry
to petitioner's apartment by opening the closed but unlocked door,
did not "break open" the door within the meaning of 18
Page 391 U. S. 588
U.S.C. § 3109, and therefore were not required by that statute
to make a prior announcement of "authority and purpose." 380 F.2d
108. We granted certiorari, 389 U.S. 1003 (1967), to consider the
somewhat uncomplicated, but nonetheless significant issue of
whether the agents' entry was consonant with federal law. [
Footnote 1] We hold that it was not,
and therefore reverse.
The statute here involved, 18 U.S.C. § 3109, [
Footnote 2] deals with the entry of federal
officers into a dwelling in terms only in regard to the execution
of a search warrant. This Court has held, however, that the
validity of such an entry of a federal officer to effect an arrest
without a warrant "must be tested by criteria identical with those
embodied in" that statute.
Miller v. United States,
357 U. S. 301,
357 U. S. 306
(1958);
Wong Sun v. United States, 371 U.
S. 471,
371 U. S.
482-484 (1963). [
Footnote 3] We therefore agree with
Page 391 U. S. 589
the parties and with the court below that we must look to § 3109
as controlling.
In
Miller v. United States, supra, the common law
background to § 3109 was extensively examined. [
Footnote 4] The Court there concluded,
id. at
357 U. S.
313:
"The requirement of prior notice of authority and purpose before
forcing entry into a home is deeply rooted in our heritage and
should not be given grudging application. Congress, codifying a
tradition embedded in Anglo-American law, had declared in § 3109
the reverence of the law for the individual's right of privacy in
his house."
It was also noted,
id. at
357 U. S. 313,
n. 12, that another facet of the rule of announcement was,
generally, to safeguard officers, who might be mistaken, upon an
unannounced intrusion into a home, for someone with no right to be
there.
See also McDonald v. United States, 335 U.
S. 451,
335 U. S.
460-461 (concurring opinion).
Considering the purposes of § 3109, it would indeed be a
"grudging application" to hold, as the Government urges, that the
use of "force" is an indispensable element of the statute. To be
sure, the statute uses the phrase "break open" and that connotes
some use of force. But linguistic analysis seldom is adequate when
a statute is designed to incorporate fundamental values and the
ongoing development of the common law. [
Footnote 5] Thus, the
Page 391 U. S. 590
announcement codified in a state statute identical in relevant
terms to 3109 to apply to an entry by police through a closed but
unlocked door.
People v. Rosales, 68 Cal. 2d
299, 437 P.2d 489 (1968). And it has been held that § 3109
applies to entries effected by the use of a passkey, [
Footnote 6] which requires no more force than
does the turning of a doorknob. An unannounced intrusion into a
dwelling -- what § 3109 basically proscribes -- is no less an
unannounced intrusion whether officers break down a door, force
open a chain lock on a partially open door, open a locked door by
use of a passkey, or, as here, open a closed but unlocked door.
[
Footnote 7] The protection
afforded by, and the values inherent in, § 3109 must be "governed
by something more than the fortuitous circumstance of an unlocked
door."
Keiningham v. United States, 109 U.S.App.D.C. 272,
276, 287 F.2d 126, 130 (1960).
Page 391 U. S. 591
The Government seeks to invoke an exception to the rule of
announcement, contending that the agents' lack of compliance with
the statute is excused because an announcement might have
endangered the informant Jones or the officers themselves.
See,
e.g., Gilbert v. United States, 366 F.2d 923, 931 (C.A. 9th
Cir.1966),
cert. denied, 388 U.S. 922 (1967);
cf. Ker
v. California, 374 U. S. 23,
374 U. S. 39-40
(1963) (opinion of Clark, J.);
id. at
374 U. S. 47
(opinion of BRENNAN, J.). However, whether or not "exigent
circumstances,"
Miller v. United States, supra, at
357 U. S. 309,
would excuse compliance with § 3109, [
Footnote 8] this record does not reveal any substantial
basis for excusing the failure of the agents here to announce their
authority and purpose. The agents had no basis for assuming
petitioner was armed or might resist arrest, or that Jones was in
any danger. Nor, as to the former, did the agents make any
independent investigation of petitioner prior to setting the stage
for his arrest with the narcotics in his possession.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
Reversed and remanded.
MR. JUSTICE BLACK dissents.
[
Footnote 1]
The Government contends in this Court that petitioner did not
adequately raise at trial the issue of the agents' manner of entry,
and therefore that it did not have sufficient opportunity to
indicate the full circumstances surrounding the entry and
petitioner's arrest. However, petitioner's trial counsel, in the
course of objecting, clearly stated there were no facts "sufficient
to justify this officer's breaking into" the apartment, and his
objection was truncated by a ruling of the trial judge. In any
event, the Government met the issue on the merits in the Court of
Appeals, and apparently did not there contend the record was
inadequate for its resolution, and the Court of Appeals decided the
issue on the merits. In these circumstances, we are justified in
likewise doing so.
[
Footnote 2]
"The officer may break open any outer or inner door or window of
a house, or any part of a house, or anything therein, to execute a
search warrant, if, after notice of his authority and purpose, he
is refused admittance or when necessary to liberate himself or a
person aiding him in the execution of the warrant."
[
Footnote 3]
See also, e.g., Ng Pui Yu v. United States, 352 F.2d
626, 631 (C.A. 9th Cir.1965);
Gatlin v. United States, 117
U.S.App.D.C. 123, 130, 326 F.2d 666, 673 (C.A. D.C. Cir.1963);
United States v. Cruz, 265 F. Supp.
15, 21 (W. D.Tex.1967).
[
Footnote 4]
See also Ker v. California, 374 U. S.
23,
374 U. S. 47-59
(1963) (opinion of BRENNAN, J.).
[
Footnote 5]
While distinctions are obvious, a useful analogy is nonetheless
afforded by the common and case law development of the law of
burglary: a forcible entry has generally been eliminated as an
element of that crime under statutes using the word "break," or
similar words.
See R. Perkins, Criminal Law 149-150
(1957); J. Michael & H. Wechsler, Criminal Law and Its
Administration 367-382 (1940); Note, A Rationale of the Law of
Burglary, 51 Col.L.Rev. 1009, 1012-1015 (1951). Commentators on the
law of arrest have viewed the development of that body of law as
similar.
See H. Voorhees, Law of Arrest §§ 159, 172-173
(1904); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 806
(1924):
"What constitutes 'breaking' seems to be the same as in
burglary: lifting a latch, turning a door knob, unhooking a chain
or hasp, removing a prop to, or pushing open, a closed door of
entrance to the house -- even a closed screen door . . . is a
breaking. . . ."
(Footnotes omitted.)
See generally Blakey, The Rule of
Announcement and Unlawful Entry, 112 U.Pa.L.Rev. 499 (1964).
[
Footnote 6]
See, e.g., Munoz v. United States, 325 F.2d 23, 26
(C.A. 9th Cir.1963);
United States v. Sims, 231 F.
Supp. 251, 254 (D.C. Md.1964);
cf. People v.
Stephens, 249 Cal. App.
2d 113, 57 Cal. Rptr. 66 (1967).
See also Ker v.
California, 374 U.S. at
374 U. S.
38.
[
Footnote 7]
We do not deal here with entries obtained by ruse, which have
been viewed as involving no "breaking."
See, e.g., Smith v.
United States, 357 F.2d 486, 488 n. 1 (C.A. 5th Cir.1966);
Leahy v. United States, 272 F.2d 487, 489 (C.A. 9th
Cir.1959).
See also Wilgus,
n 5,
supra, at 806.
[
Footnote 8]
Exceptions to any possible constitutional rule relating to
announcement and entry have been recognized,
see Ker v.
California, supra, at
374 U. S. 47 (opinion of BRENNAN, J.), and there is
little reason why those limited exceptions might not also apply to
§ 3109, since they existed at common law, of which the statute is a
codification.
See generally Blakey,
n 5,
supra.