1. The right without a search warrant contemporaneously to
search persons lawfully arrested while committing crime and to
search the place where the arrest is made in order to find and
seize things connected with the crime as its fruits or as the means
by which it was committed, as well as weapons and other things to
effect an escape from custody, is not to be doubted. P.
269 U. S.
30.
2. But this right, which is incidental to the arrest, cannot
extend to the search of a man's dwelling, several blocks distant
from the place of his arrest, after the offense has been committed
and while he is in custody elsewhere.
Carroll v. United
States, 267 U. S. 132,
distinguished.
Id.
3. So
held assuming that the house searched, which was
the house of one A who had shortly before been arrested with others
who were in the act of consummating a conspiracy to violate the
Anti-Narcotic Act by selling cocaine without having registered and
paid the prescribed tax, was the place from which the cocaine sold
had been taken by some of the defendants to the place of sale, and
that other cocaine, discovered in the house by the search, was
there in A's control in violation of the Act, was subject to
forfeiture thereunder, and was part of the cocaine constituting the
subject matter of the conspiracy.
Id.
4. Belief, however well founded, that an article sought is
concealed in a dwelling house furnishes no justification for a
search in the house without a warrant; such searches are unlawful
notwithstanding facts unquestionably showing probable cause. P.
269 U. S.
32.
5. When properly invoked, the Fifth Amendment protects every
person from incrimination by the use of evidence obtained through
search or seizure made in violation of his rights under the Fourth
Amendment. P.
269 U. S.
33.
6. Where, by uncontroverted facts, it appears that a search and
seizure were made in violation of the Fourth Amendment, there is no
reason why one whose rights have been so violated and whom it is
sought to incriminate by evidence so obtained may not invoke
protection of the Fifth Amendment immediately, by objection
Page 269 U. S. 21
to the evidence, without having made any application for the
return of the thing seized. P.
269 U. S.
34.
7. Evidence of an unlawful search of an accused person's house
and of seizure therein of an incriminating article cannot be
introduced against him at the trial as evidence in rebuttal of his
testimony on cross-examination that he never saw the article. P.
269 U. S.
35.
8. Where several are tried jointly and convicted for conspiracy,
erroneous admission of evidence of an unlawful search and seizure
in the dwelling of one will not require a reversal as to the other
if the evidence was adduced only against the one, in proof of
guilty knowledge and intent in performing acts with the others for
executing the conspiracy, since they would be equally guilty
whether he acted as guilty participant or as their innocent agent.
P.
269 U. S.
35.
20 F. 671 reversed in part, affirmed in part.
Certiorari to a judgment of the circuit court of appeals
affirming a conviction and judgment in the district court on a
prosecution of the petitioners (named in the opinion) for
conspiracy to violate the Federal Narcotic Tax Act.
Page 269 U. S. 27
MR. JUSTICE BUTLER delivered the opinion of the Court.
Thomas Agnello, Frank Agnello, Stephen Alba, Antonio Centorino,
and Thomas Pace were indicted in the District Court, Eastern
District of New York, under § 37, Criminal Code, 35 Stat. 1088,
1096, c. 321 for a conspiracy to violate the Harrison Act, 38 Stat.
785, c. 1, as amended by
Page 269 U. S. 28
§§ 1006, 1007, 1008 of the Revenue Act of 1918, c. 18, 40 Stat.
1057, 1130. The indictment charges that defendants conspired
together to sell cocaine without having registered with the
collector of internal Revenue and without having paid the
prescribed tax. The overt acts charged are that defendants had
cocaine in their possession, solicited the sale of it, met in the
home of defendant Alba at 138 Union Street, Brooklyn, and made
arrangements for the purpose of selling it, brought a large
quantity of it to that place, and sold it in violation of the Act.
The jury found defendants guilty. Each was sentenced to serve two
years in the penitentiary and to pay a fine of $5,000. The circuit
court of appeals affirmed the judgment. 290 F. 671.
The evidence introduced by the government was sufficient to
warrant a finding of the following facts: Paspuale Napolitano and
Nunzio Dispenza, employed by government revenue agents for that
purpose, went to the home of Alba, Saturday, January 14, 1922, and
there offered by buy narcotics from Alba and Centorino. Alba gave
them some samples. They arranged to come again on Monday following.
They returned at the time agreed. Six revenue agents and a city
policeman followed them and remained on watch outside. Alba left
the house and returned with Centorino. They did not then produce
any drug. After discussion and the refusal of Napolitano and
Dispenza to go to Centorino's house to get the drug, Centorino went
to fetch it. He was followed by some of the agents. He first went
to his own house, 172 Columbia Street; thence to 167 Columbia
Street, one part of which was a grocery store belonging to Pace and
Thomas Agnello, and another part of which, connected with the
grocery store, was the home of Frank Agnello and Pace. In a short
time, Centorino, Pace, and the Agnellos came out of the
last-mentioned place, and all went to Alba's house. Looking through
the windows, those on watch saw
Page 269 U. S. 29
Frank Agnello produce a number of small packages for delivery to
Napolitano and saw the letter hand over money to Alba. Upon the
apparent consummation of the sale, the agents rushed in and
arrested all the defendants. They found some of the packages on the
table where the transaction took place, and found others in the
pockets of Frank Agnello. All contained cocaine. On searching Alba,
they found the money given him by Napolitano.
And, as a part of its case in chief, the government offered
testimony tending to show that, while some of the revenue agents
were taking the defendants to the police station, the others and
the city policeman went to the home of Centorino and searched it,
but did not find any narcotics; that they then went to 167 Columbia
Street and searched it, and in Frank Agnello's bedroom found a can
of cocaine, which was produced and offered in evidence. The
evidence was excluded on the ground that the search and seizure
were made without a search warrant. In defense, Centorino and
others gave testimony to the effect that the packages of cocaine
which were brought to and seized in Alba's house at the time of the
arrests had been furnished to Centorino by Dispenza to induce an
apparent sale of cocaine to Napolitano -- that is, to incite crime
or acts having the appearance of crime for the purpose of
entrapping and punishing defendants. Centorino testified that,
after leaving Napolitano and Dispenza with Alba at the latter's
home, he went to his own house and got the packages of cocaine
which had been given him by Dispenza, and took them to 167 Columbia
Street, and there a gave them to Frank Agnello to be taken to
Alba's house. Frank Agnello testified on direct examination that he
received the packages from Centorino, but that he did not know
their contents, and that he would not have carried them if he had
known that they contained cocaine or narcotics. On
cross-examination, he said that he had never seen narcotics. Then,
notwithstanding objection
Page 269 U. S. 30
by defendants, the prosecuting attorney produced the can of
cocaine which the government claimed was seized in Agnello's
bedroom and asked him whether he had ever seen it. He said he had
not, and specifically stated he had never seen it in his house. In
rebuttal, over objections of defendants, the government was
permitted to put in the evidence of the search and seizure of the
can of cocaine in Frank Agnello's room, which theretofore had been
offered and excluded.
The case involves the questions whether search of the house of
Frank Agnello and seizure of the cocaine there found, without a
search warrant, violated the Fourth Amendment, and whether the
admission of evidence of such search and seizure violated the Fifth
Amendment. The Fourth Amendment is:
"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 be
seized."
The provision of the Fifth Amendment invoked is this: "No person
. . . shall be compelled in any criminal case to be a witness
against himself."
The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it
was committed, as well as weapons and other things to effect an
escape from custody is not to be doubted.
See Carroll v. United
States, 267 U. S. 132,
267 U. S. 158;
Weeks v. United States, 232 U. S. 383,
232 U. S. 392.
The legality of the arrests or of the searches and seizures made at
the home of Alba is not questioned. Such searches and seizures
naturally and usually appertain to and attend such arrests. But the
right does not extend to other places. Frank Agnello's
Page 269 U. S. 31
house was several blocks distant from Alba's house, where the
arrest was made. When it was entered and searched, the conspiracy
was ended and the defendants were under arrest and in custody
elsewhere. That search cannot be sustained as an incident of the
arrests.
See Silverthorne Lumber Co. v. United States,
251 U. S. 385,
251 U. S. 391;
People v. Conway, 225 Mich. 152;
Gamble v. Keyes,
35 S.D. 645, 650.
Under the Harrison Act (§ 8, and § 1 as amended by § 1006), it
is unlawful for any person, who has not registered and paid a
special tax, to have cocaine in his possession, and all unstamped
packages of such drug found in his possession are subject to
forfeiture. We assume, as contended by the government, that
defendants obtained from Frank Agnello's house the cocaine that was
taken to Alba's house and there seized; that the can of cocaine
which later was found in Agnello's house was unlawfully in his
control and subject to seizure, and that it was a part of the
cocaine which was the subject matter of the conspiracy.
The government cites
Carroll v. United States, supra,
but it does not support the search and seizure complained of. That
case involved the legality of a search of an automobile and the
seizure of intoxicating liquors being transported therein in
violation of the National Prohibition Act. The search and seizure
were made by prohibition agents without a warrant. After reference
to various acts of Congress relating to the seizure of contraband
goods, the Court said (p.
267 U. S.
153):
"We have made a somewhat extended reference to these statutes to
show that the guaranty of freedom from unreasonable searches and
seizures by the Fourth Amendment has been construed, practically
since the beginning of the government, as recognizing a necessary
difference between a search of a store, dwelling house, or other
structure in respect of which a proper official warrant readily may
be obtained, and a
Page 269 U. S. 32
search of a ship, motorboat, wagon, or automobile, for
contraband goods, where it is not practicable to secure a warrant,
because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought."
It was held that:
"The facts and circumstances within their knowledge and of which
they had reasonably trustworthy information were sufficient in
themselves to warrant a man of reasonable caution in the belief
that intoxicating liquor was being transported in the automobile
which they stopped and searched."
P.
267 U. S. 162.
And, on that ground, the Court held the search and seizure without
warrant justified.
While the question has never been directly decided by this
Court, it has always been assumed that one's house cannot lawfully
be searched without a search warrant, except as an incident to a
lawful arrest therein.
Boyd v. United States, 116 U.
S. 616,
116 U. S. 624,
et seq., 116 U. S. 630;
Weeks v. United States, supra, 232 U. S. 393;
Silverthorne Lumber Co. v. United States, supra,
251 U. S. 391;
Gouled v. United States, 255 U. S. 298,
255 U. S. 308.
The protection of the Fourth Amendment extends to all equally to
those justly suspected or accused as well as to the innocent. The
search of a private dwelling without a warrant is, in itself,
unreasonable and abhorrent to our laws. Congress has never passed
an act purporting to authorize the search of a house without a
warrant. On the other hand, special limitations have been set about
the obtaining of search warrants for that purpose. Thus, the
National Prohibition Act, approved October 28, 1919, c. 85, Tit. 2,
§ 25, 41 Stat. 305, 315, provides that no search warrant shall
issue to search any private dwelling occupied as such unless it is
being used for the unlawful sale of intoxicating liquor or is in
part used for business purposes, such as store, shop, saloon,
restaurant, hotel, or boarding house. And later, to the end that
government employees without a warrant shall not invade the homes
of the people and violate the privacies
Page 269 U. S. 33
of life, Congress made it a criminal offense, punishable by
heavy penalties, for any officer, agent or employee of the United
States engaged in the enforcement of any law to search a private
dwelling house without a warrant directing such search. Act of
November 23, 1921, c. 134, § 6, 42 Stat. 222, 223. Safeguards
similar to the Fourth Amendment are deemed necessary and have been
provided in the constitution or laws of every state of the Union.
* We think there is
no state statute authorizing the search of a house without a
warrant, and in a number of state laws recently enacted for the
enforcement of prohibition in respect of intoxicating liquors,
there are provisions similar to those in § 25 of the National
Prohibition Act. 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.
See Entick v. Carrington, 19 Howard's state
Trials, 1030, 1066. 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
cause.
See Temperani v. United States, 299 F. 365;
United States v. Rembert, 284 F. 996, 1000;
Connelly
v. United States, 275 F. 509;
McClurg v. Brenton, 123
Iowa 368, 372;
People v. Margolis, 220 Mich. 431;
Childers v. Commonwealth, 198 Ky. 848;
State v.
Warfield, 184 Wis. 56. The search of Frank Agnello's house and
seizure of the can of cocaine violated the Fourth Amendment.
It is well settled that, when properly invoked, the Fifth
Amendment protects every person from incrimination by
Page 269 U. S. 34
the use of evidence obtained through search or seizure made in
violation of his rights under the Fourth Amendment.
Boyd v.
United States, supra,
116 U. S. 630 et seq.; Weeks v. United States,
supra, 232 U. S. 398;
Silverthorne Lumber Co. v. United States, supra,
251 U. S.
391-392;
Gouled v. United States, supra,
255 U. S. 306;
Amos v. United States, 255 U. S. 313,
255 U. S.
316.
The government contends that, even if the search and seizure
were unlawful, the evidence was admissible because no application
on behalf of defendant was made to the court for the return of the
can of cocaine. The reason for such application, where required, is
that the court will not pause in a criminal case to determine
collateral issues as to how the evidence was obtained.
See
Adams v. New York, 192 U. S. 585,
192 U. S. 594,
aff'g People v. Adams, 176 N.Y. 351. But, in this case,
the facts disclosing that the search and seizure violated the
Fourth Amendment were not in controversy. They were shown by the
examination of the witness called to give the evidence. There was
no search warrant, and from the first the position of the
government has ben that none was necessary. In substance, Frank
Agnello testified that he never had possession of the can of
cocaine, and never saw it until it was produced in court. There is
nothing to show that, in advance of its offer in evidence, he knew
that the government claimed it had searched his house and found
cocaine there, or that the prosecutor intended to introduce
evidence of any search or seizure. It would be unreasonable to hold
that he was bound to apply for the return of an article which he
maintained he never had. Where, by uncontroverted facts, it appears
that a search and seizure were made in violation of the Fourth
Amendment, there is no reason why one whose rights have been so
violated, and who is sought to be incriminated by evidence so
obtained, may not invoke protection of the Fifth Amendment
immediately, and without any application for the return of the
thing seized. "A rule of practice must not be allowed for any
technical reason to prevail over
Page 269 U. S. 35
a constitutional right."
Gouled v. United States,
supra, 255 U. S. 313.
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. As said in
Silverthorne Lumber Co. v.
United States, supra,
251 U. S. 392:
"The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so acquired
shall not be used before the court, but that it shall not be used
at all."
The admission of evidence obtained by the search and seizure was
error, and prejudicial to the substantial rights of Frank Agnello.
The judgment against him must be set aside, and a new trial
awarded.
But the judgment against the other defendants may stand. The
introduction of the evidence of the search and seizure did not
transgress their constitutional rights. And it was not prejudicial
error against them. The possession by Frank Agnello of the can of
cocaine which was seized tended to show guilty knowledge and
criminal intent on his part; but it was not submitted as
attributable to the other defendants. During the summing up of the
case to the jury by the prosecuting attorney, the court distinctly
indicated that the evidence was admissible only against Frank
Agnello. The other defendants did not request any instruction to
the jury in reference to the matter, and they do not contend that
any erroneous instruction was given.
Isaacs v. United
States, 159 U. S. 487,
159 U. S. 491.
The packages of cocaine seized at Alba's house were carried to
that place by Frank Agnello. He did this at the instance of
Centorino, and in his behalf it is claimed he acted innocently and
without knowledge of the contents
Page 269 U. S. 36
of the package. The evidence of the search and seizure made in
his house tended to show that he knew what he was doing and was a
willing participant in the conspiracy charged. But, so far as
concerns the other defendants, it is immaterial whether he acted
innocently and without knowledge of the contents of the package or
knowingly to effect the object of the conspiracy. In either case,
his act would be equally chargeable to his codefendants. They are
not entitled to a new trial.
See Rossi v. United States,
278 F. 349, 354;
Belfi v. United States, 259 F. 822, 828;
Feder et al. v. United States, 257 F. 694;
Browne v.
United States, 145 F. 1, 13;
United States v. Cohn,
128 F. 615, 626.
Judgment against Frank Agnello reversed; judgment against
other defendants affirmed.
*
See p. 1268, Index Digest of state constitutions
(prepared for New York state constitutional Convention Commission,
1915); also, § 8, c. 6, Consolidated Laws, New York, as amended by
Laws 1923, c. 80.