1. Respondent and an informer were in an automobile, the driver
of which was suspected of selling counterfeit gasoline ration
coupons. When approached by federal and New York state officers,
the informer had counterfeit gasoline ration coupons in his hand
and stated that he had obtained them from the driver. Without
previous information implicating respondent, and without a warrant,
the state officer arrested respondent and the driver, but did not
search the car or state the charge on which respondent was
arrested. At the police station, respondent was searched and
counterfeit gasoline ration coupons were found on his person. On
the evidence thus obtained, respondent was convicted of possession
of counterfeit gasoline ration coupons in violation of § 301 of the
Second War Powers Act.
Held: the search was unlawful, and the conviction
cannot be sustained. Pp.
332 U. S.
583-595.
(a) Assuming,
arguendo, that there was reasonable cause
for search of the automobile as a vehicle believed to be carrying
contraband, this did not justify a search of the person of
respondent.
Carroll v. United States, 267 U.
S. 132, distinguished. Pp.
332 U. S.
583-587.
(b) It was not justified as incident to a lawful arrest, since
the arrest was not lawful under New York law, which is controlling
in this case. Pp.
332 U. S.
587-595.
2. By mere presence in a suspected automobile, a person does not
lose immunities from search of his person to which he otherwise
would be entitled. P.
332 U. S.
587.
3. In the absence of an applicable federal statute, the law of
the state where an arrest without warrant takes place determines
its validity. P.
332 U. S.
589.
4. No federal statute controls the validity of an arrest without
warrant in a case such as this. Pp.
332 U. S.
590-591.
5. In the circumstances of this case, the mere presence of
respondent in the car did not authorize an inference of
participation in a conspiracy violative of § 37 of the Criminal
Code. Pp.
332 U. S.
593-594.
6. Probable cause for arrest may not be inferred from the fact
that the person arrested does not protest or resist arrest or
assert his innocence to the arresting officer. It is the right of
one placed under
Page 332 U. S. 582
arrest to submit to custody and reserve his defenses for the
neutral tribunals erected by the law for the purpose of judging his
case. Pp.
332 U. S.
594-595.
7. A search is not made legal by what it turns up; in law, it is
good or bad when it starts, and does not change character from its
success. P.
332 U. S.
595.
8. That law enforcement may be made more difficult is no
justification for disregarding the constitutional prohibition
against unreasonable searches and seizures. P.
332 U. S.
595.
159 F.2d 818 affirmed.
Respondent was convicted in a federal district court of
possessing counterfeit gasoline ration coupons contrary to § 301 of
the Second War Powers Act. The Circuit Court of Appeals reversed.
159 F.2d 818. This Court granted certiorari. 331 U.S. 800.
Affirmed, p.
332 U. S.
595.
MR. JUSTICE JACKSON delivered the opinion of the Court.
Michael Di Re was convicted on a charge of knowingly possessing
counterfeit gasoline ration coupons in violation of § 301 of the
Second War Powers Act, 1942. [
Footnote 1] The decisive evidence was that obtained by
search of his person after he was arrested without a warrant of any
kind. The Circuit Court of Appeals, Second Circuit, 159 F.2d 818,
considered that any question as to the timeliness of his objection
to this evidence was eliminated by its disposition on its merits by
the District Court, and, one judge dissenting, it held both his
search and arrest to have been illegal.
Page 332 U. S. 583
The Government was granted certiorari, [
Footnote 2] raising no question other than the
correctness of the holding by the Court of Appeals that the
evidence was the fruit of an illegal arrest and search.
An investigator of the Office of Price Administration was
informed by one Reed that he was to buy counterfeit gasoline ration
coupons from a certain Buttitta at a named place in the City of
Buffalo, New York. The investigator and a detective from the
Buffalo Police Department trailed Buttitta's car and finally came
upon it parked at the appointed place. They went to the car and
found the informer Reed, the only occupant of the rear seat,
holding in his hand two gasoline ration coupons which later proved
to be counterfeit. Reed, on being asked, said he obtained them from
Buttitta, who was sitting in the driver's seat. Beside Buttitta sat
Di Re. All three were taken into custody, "frisked" to make sure
they had no weapons, and were then taken to the police station.
Here Di Re complied with a direction to put the contents of his
pockets on a table. Two gasoline and several fuel oil ration
coupons were laid out. He said he had found them in the street.
About two hours later, after questioning, he was "booked" and
thoroughly searched. One hundred inventory gasoline ration coupons
were found in an envelope concealed between his shirt and
underwear. These, as well as the gasoline coupons earlier
disclosed, proved to be counterfeit. Their introduction as
evidence, over the objection of the defendant, was held by the
court below to require reversal of the conviction. [
Footnote 3]
I
The Government now defends the search upon alternative grounds:
1, that search of Di Re was justified as
Page 332 U. S. 584
incident to a lawful arrest; 2, that search of his person was
justified as incident to search of a vehicle reasonably believed to
be carrying contraband. We consider the second ground first.
The claim is that officers have the rights, without a warrant,
to search any car which they have reasonable cause to believe
carries contraband, and incidentally may search any occupant of
such car when the contraband sought is of a character that might be
concealed on the person. This contention calls, first, for a
determination as to whether the circumstances gave a right to
search this car.
The belief that an automobile is more vulnerable to search
without warrant than is other property has its source in the
decision of
Carroll v. United States, 267 U.
S. 132. That search was made, and its validity was
upheld, under the search and seizure provisions enacted for
enforcement of the National Prohibition Act, and of that Act alone.
Transportation of liquor in violation of that Act subjected first
the liquor, and then the vehicle in which it was found, to seizure
and confiscation, and the person "in charge thereof" to arrest.
[
Footnote 4] The Court
reviewed
Page 332 U. S. 585
the legislative history of enforcement legislation and concluded
(at p.
267 U. S.
147),
"The intent of Congress to make a distinction between the
necessity for a search warrant in the searching of private
dwellings and in that of automobiles and other road vehicles in
[
Footnote 5] the enforcement of
the Prohibition Act is thus clearly established by the legislative
history of the Stanley Amendment. Is such a distinction consistent
with the Fourth Amendment? We think that it is. The Fourth
Amendment does not denounce all searches or seizures, but only such
as are unreasonable."
The progeny of the
Carroll case likewise dealt with
searches and seizures under this Act.
Husty v. United
States, 282 U. S. 694.
Obviously the Court should be reluctant to decide that a search
thus authorized by Congress was unreasonable, and that the Act was
therefore unconstitutional. In view of the strong presumption of
constitutionality due to an Act of Congress, especially when it
turn on what is "reasonable," the
Carroll decision falls
short of establishing a doctrine that, without such legislation,
automobiles nonetheless are subject to search without warrant in
enforcement of all federal statutes. This Court has never yet said
so. The most that can be said is that some of the language by which
the Court justified the search and seizure legislation in the
Carroll case might be used to make a distinction between
what is a reasonable search as applied to an automobile and as
applied to a residence or fixed premises, even in absence of
legislation.
We need not decide whether, without such Congressional
authorization as was found controlling in the
Carroll
Page 332 U. S. 586
case, any automobile is subject to search without warrant on
reasonable cause to believe it contains contraband. In the case
before us, there appears to have been no search of the car itself.
No one on the spot seems to have thought there was cause for
searching it, or that it was subject to forfeiture. The nature of
ration tickets, the contraband involved, was not such that a car
would be necessary or advantageous in carrying them except as an
incident of carrying the person. When the question of admissibility
of this evidence arose in the trial court, counsel for the
Government made no claim that there had been search or cause for
search of the car. No question of fact concerning such a claim has
been resolved by the trial court or the jury.
Assuming, however, without deciding, that there was reasonable
cause for searching the car, did it confer an incidental right to
search Di Re? It is admitted by the Government that there is no
authority to that effect, either in the statute or in precedent
decision of this Court, but we are asked to extend the assumed
right of car search to include the person of occupants because
"common sense demands that such rights exist in a case such as
this where the contraband sought is a small article which could
easily be concealed on the person."
This argument points up the different relation of the automobile
to the crime in the
Carroll case than in the one before
us. An automobile, as was there pointed out, was an almost
indispensable instrumentality in large-scale violation of the
National Prohibition Act, and the car itself therefore was treated
somewhat as an offender, and became contraband. But even the
National Prohibition Act did not direct the arrest of all
occupants, but only of the person in charge of the offending
vehicle, though there is better reason to assume that no passenger
in a car loaded with liquor would remain innocent of knowledge
Page 332 U. S. 587
of the car's cargo than to assume that a passenger must know
what pieces of paper are carried in the pockets of the driver.
The Government says it would not contend that, armed with a
search warrant for a residence only, it could search all persons
found in it. But an occupant of a house could be used to conceal
this contraband on his person quite as readily as can an occupant
of a car. Necessity, an argument advanced in support of this
search, would seem as strong a reason for searching guests of a
house for which a search warrant had issued as for search of guests
in a car for which none had been issued. By a parity of reasoning
with that on which the Government disclaims the right to search
occupants of a house, we suppose the Government would not contend
that, if it had a valid search warrant for the car only, it could
search the occupants as an incident to its execution. How then
could we say that the right to search a car without a warrant
confers greater latitude to search occupants than a search by
warrant would permit?
We see no ground for expanding the ruling in the
Carroll case to justify this arrest and search as incident
to the search of a car. We are not convinced that a person, by mere
presence in a suspected car, loses immunities from search of his
person to which he would otherwise be entitled.
II
The other ground on which the Government defended the search of
Di Re, and the only one on which it relied at the trial, is that
the officers justifiably arrested him, and that this conferred a
right to search his person. If he was lawfully arrested, it is not
questioned that the ensuing search was permissible. Hence, we must
examine the circumstances and the law of arrest.
Page 332 U. S. 588
Some members of this Court rest their conclusion that the arrest
was invalid on § 180 of the New York Code of Criminal Procedure,
which requires an officer making an arrest without a warrant to
inform the suspect of the cause of arrest, except when it is made
during commission of the crime or when in pursuit after an escape.
[
Footnote 6] This question was
first raised from the Bench during argument in this Court. Di Re
did not assert this ground of invalidity at the trial. Had he done
so, the Government might have met it with proof of circumstances
which, in themselves, would show that Di Re had been effectively
informed, even if the circumstances fell short of establishing the
statutory exception. The proceedings below did not develop the
facts concerning Di Re's arrest in connection with this
requirement. Inasmuch as the issue would lead to exploration of the
law as to waiver when the defense was not raised in either court
below, or indeed by the petition here, and as to applicability of
he statute if, as the Government contends, lack of express
declaration was unnecessary because circumstances supplied the
required information, we do not undertake to determine on this
record whether Di Re's arrest satisfied this provision of the New
York law.
The arrest was challenged in the courts below on the ground that
it violated another provision of New York law which was considered
to be controlling on the subject. The court below assumed that the
arresting officer, a state officer, derived his authority to arrest
Buttitta and Reed, although it was for a federal crime, from
Page 332 U. S. 589
§ 177 of the New York Code of Criminal Procedure, and also
considered the legality of the arrest of Di Re under paragraph 3
thereof. [
Footnote 7] In this
Court, the Government originally argued that the arrest was
authorized under both paragraphs 2 and 3 of the State law, but, in
a supplemental brief, the Government withdraws the suggestion "that
the arrest of respondent can be justified under subsection 2 of
section 177 of the New York Code of Criminal Procedure." Instead,
it now urges that
"the validity of an arrest without a warrant for a federal crime
is an matter of federal law to be determined by a uniform rule
applicable in all federal courts."
We believe, however, that, in absence of an applicable federal
statute, the law of the state where an arrest without warrant takes
place determines its validity. By one of the earliest acts of
Congress, the principle of which is still retained, the arrest by
judicial process for a federal offense must be "agreeably to the
usual mode of process against offenders in such State." [
Footnote 8] There is no reason to
Page 332 U. S. 590
believe that state law is not an equally appropriate standard by
which to test arrests without warrant, except in those cases where
Congress has enacted a federal rule. Indeed, the enactment of a
federal rule in some specific cases seems to imply the absence of
any general federal law of arrest.
Turning to the Acts of Congress to find a rule for arrest
without warrant, we find none which controls such a case as we have
here, and none that purports to create a general rule on the
subject. If we were to try to find or fashion a federal rule for
arrest without warrant, it appears that the federal legislative
materials are meager, inconsistent, and inconclusive. Federal
Bureau of Investigation officers are authorized only
"to make arrests without warrant for felonies which have been
committed and which are cognizable under the laws of the United
States, in cases where the person making the arrest has reasonable
grounds to believe that the person so arrested is guilty of such
felony, and where there is a likelihood of the person escaping
before a warrant can be obtained for his arrest, but the person
arrested shall be immediately taken before a committing officer.
[
Footnote 9]"
However, marshals and their deputies
"shall have the power to make arrests without warrant for any
offense against the laws of the United States committed in their
presence or for any felony cognizable under the laws of the United
States in cases where such felony has in fact been or is being
committed and they have reasonable grounds to believe that the
person to be arrested has committed or is committing it, [
Footnote 10]"
and they are also given the same powers as sheriffs in the same
state may have, by law, in executing the laws thereof. [
Footnote 11]
In denouncing unlawful search by federal officers as a
misdemeanor, Congress provided that it should not
Page 332 U. S. 591
apply to one
"arresting or attempting to arrest any person committing or
attempting to commit an offense in the presence of such officer,
agent or employee, or who has committed, or who is suspected on
reasonable grounds of having committed, a felony. [
Footnote 12]"
Thus, the legislative sources, while yielding some common
provisions, also contain many inconsistencies. No act of Congress
lays down a general federal rule for arrest without warrant for
federal offenses. None purports to supersede state law. And none
applies to this arrest which, while for a federal offense, was made
by a state officer accompanied by federal officers who had no power
of arrest. Therefore, the New York statute provides the standard by
which this arrest must stand or fall.
Since, under that law, any valid arrest of Di Re, if for a
misdemeanor, must be for one committed in the arresting officer's
presence, and if for a felony, must be for one which the officer
had reasonable grounds to believe the suspect had committed, we
seek to learn for what offense this man was taken into custody. The
arresting officer testified that he did not tell Di Re what he was
being arrested for. After he was taken to the station, he was
"booked," but the record does not show upon what charge. He was
later indicted for the misdemeanor of knowingly possessing
counterfeit gasoline ration coupons in violation of Ration Order
No. 5(c) of the Office of Price Administrator. But, on appeal, the
Government suggested the arrest may be defended as one for a
felony, because probable grounds existed for believing him guilty
of the felony of conspiracy under § 37 of the Criminal Code,
[
Footnote 13] and, in this
Court for the first time, it suggests that there were grounds for
arrest on a charge of possessing a known counterfeit writing with
intent to utter it as true for the
Page 332 U. S. 592
purpose of defrauding the United States, a felony under § 28 of
the Criminal Code. [
Footnote
14]
Assuming, without deciding, that an arrest without a warrant on
a charge not communicated at the time may later be justified if the
arresting officer's knowledge gave probable grounds to believe any
felony found in the statute books had been committed, we are
brought to the inquiry whether the circumstances at that time
afforded such grounds.
The Government now concedes that the only person who committed a
possible misdemeanor in the open presence of the officer was Reed,
the Government informer who was found visibly possessing the
coupons. Of course, as to Buttitta, they had previous information
that he was to sell such coupons to Reed, and Reed gave information
that he had done so. But the officer had no such information as to
Di Re. All they had was his presence, and if his presence was not
enough to make a case for arrest for a misdemeanor, it is hard to
see how it was enough for the felony of violating § 28 of the
Criminal Code.
The relevant difference between Ration Order 5(c) and § 28 of
the Criminal Code is that the former declares mere possession of a
counterfeit coupon an offense, while the latter defines a felony
which consists not merely of possession, but also of knowledge of
the instrument's counterfeit character, and also of intent to utter
it as true. It is admitted that, at the time of the arrest, the
officers had no information implicating Di Re and no information
pointing to possession of any coupons, unless his presence in the
car warranted that inference. Of course, they had no information
hinting further at the knowledge and intent required as elements of
the felony under the statute.
Page 332 U. S. 593
III
The Government's defense of the arrest relies most heavily on
the conspiracy ground. In view of Reed's character as an informer,
it is questionable whether a conspiracy is shown. But if the
presence of Di Re in the car did not authorize an inference of
participation in the Buttitta-Reed sale, it fails to support the
inference of any felony at all.
There is no evidence that it is a fact or that the officers had
any information indicating that Di Re was in the car when Reed
obtained ration coupons from Buttitta, and none that he heard or
took part in any conversation on the subject. Reed, the informer,
certainly knew it if any part of his transaction was in Di Re's
presence. But he was not called as a witness by the Government, nor
shown to be unavailable, and we must assume that his testimony
would not have been helpful in bringing guilty knowledge home to Di
Re.
An inference of participation in conspiracy does not seem to be
sustained by the facts peculiar to this case. The argument that one
who "accompanies a criminal to a crime rendezvous" cannot be
assumed to be a bystander, forceful enough in some circumstances,
is far-fetched when the meeting is not secretive or in a suspicious
hide-out, but in broad daylight, in plain sight of passersby, in a
public street of a large city, and where the alleged substantive
crime is one which does not necessarily involve any act visibly
criminal. If Di Re had witnessed the passing of papers from hand to
hand, it would not follow that he knew they were ration coupons,
and if he saw that they were ration coupons, it would not follow
that he would know them to be counterfeit. Indeed, it appeared at
the trial to require an expert to establish that fact. Presumptions
of guilt are not lightly to be indulged from mere meetings.
Page 332 U. S. 594
Moreover, whatever suspicion might result from Di Re's mere
presence seems diminished, if not destroyed, when Reed, present as
the informer, pointed out Buttitta, and Buttitta only, as a guilty
party. No reason appears to doubt that Reed willingly would involve
Di Re if the nature of the transaction permitted. Yet he did not
incriminate Di Re. Any inference that everyone on the scene of a
crime is a party to it must disappear if the Government informer
singles out the guilty person.
IV
The Government also makes, and several times repeats, an
argument to the effect that the officers could infer probable cause
from the fact that Di Re did not protest his arrest, did not at
once assert his innocence, and silently accepted the command to go
along to the police station. One has an undoubted right to resist
an unlawful arrest, and courts will uphold the right of resistance
in proper cases. But courts will hardly penalize failure to display
a spirit of resistance or to hold futile debates on legal issues in
the public highway with an officer of the law. A layman may not
find it expedient to hazard resistance on his own judgment of the
law at a time when he cannot know what information, correct or
incorrect, the officers may be acting upon. It is likely to end in
fruitless and unseemly controversy in a public street, if not in an
additional charge of resisting an officer. If the officers believed
they had probable cause for his arrest on a felony charge, it is
not to be supposed that they would have been dissuaded by his
profession of innocence.
It is the right of one placed under arrest to submit to custody
and to reserve his defenses for the neutral tribunals erected by
the law for the purpose of judging his case. An inference of
probable cause from a failure to engage in discussion of the merits
of the charge with arresting
Page 332 U. S. 595
officers is unwarranted. Probable cause cannot be found from
submissiveness, and the presumption of innocence is not lost or
impaired by neglect to argue with a policeman. It is the officer's
responsibility to know what he is arresting for, and why, and one
in the unhappy plight of being taken into custody is not required
to test the legality of the arrest before the officer who is making
it.
The Government's last resort in support of the arrest is to
reason from the fruits of the search to the conclusion that the
officer's knowledge at the time gave them grounds for it. We have
had frequent occasion to point out that a search is not to be made
legal by what it turns up. [
Footnote 15] In law, it is good or bad when it starts,
and does not change character from its success.
V
We meet in this case, as in many, the appeal to necessity. It is
said that, if such arrests and searches cannot be made, law
enforcement will be more difficult and uncertain. But the
forefathers, after consulting the lessons of history, designed our
Constitution to place obstacles in the way of a too permeating
police surveillance, which they seemed to think was a greater
danger to a free people than the escape of some criminals from
punishment. Taking the law as it has been given to us, this arrest
and search were beyond the lawful authority of those who executed
them. The conviction based on evidence so obtained cannot
stand.
Affirmed.
THE CHIEF JUSTICE and MR. JUSTICE BLACK dissent.
[
Footnote 1]
50 U.S.C. App. Supp. V, § 633.
[
Footnote 2]
331 U.S. 800.
[
Footnote 3]
159 F.2d 818.
[
Footnote 4]
Section 26, Title II of the National Prohibition Act provided in
part as follows:
"When . . . any officer of the law shall discover any person in
the act of transporting in violation of the law, intoxicating
liquors in any wagon, buggy, automobile, water or air craft, or
other vehicle, it shall be his duty to seize any and all
intoxicating liquors found therein being transported contrary to
law. Whenever intoxicating liquors transported or possessed
illegally shall be seized by an officer, he shall take possession
of the vehicle and team or automobile, boat, air or watercraft, or
any other conveyance, and shall arrest any person in charge
thereof. . . ."
In the
Carroll case, it was said (267 U.S. at
267 U. S. 155)
that this section was intended
"to reach and destroy the forbidden liquor in transportation and
the provisions for forfeiture of the vehicle and the arrest of the
transporter were incidental, and"
"the right to search and the validity of the seizure are not
dependent on the right to arrest. They are dependent on the
reasonable cause the seizing officer has for belief that the
contents of the automobile offend against the law. The seizure in
such a proceeding comes before the arrest as section 26 indicates.
. . ."
[
Footnote 5]
This word "in" is erroneously printed "is" in the case as
reported.
[
Footnote 6]
Section 180 provides:
"When arresting a person without a warrant, the officer must
inform him of the authority of the officer and the cause of the
arrest, except when the person arrested is in the actual commission
of a crime, or is pursued immediately after an escape."
See also People v. Marendi, 213 N.Y. 600, 610, 107 N.E.
1058, 1061.
Cf. John Bad Elk v. United States,
177 U. S. 529;
Christie v. Leachinsky, [1947] 1 All Eng. 567.
[
Footnote 7]
Section 177 of the New York Code of Criminal Procedure
provides:
"A peace officer may, without a warrant, arrest a person,"
"1. For a crime, committed or attempted in his presence;"
"2. When the person arrested has committed a felony, although
not in his presence;"
"3. When a felony has in fact been committed, and he has
reasonable cause for believing the person to be arrested to have
committed it."
[
Footnote 8]
The Act of September 24, 1789 (Ch. 20, § 33, 1 Stat. 91),
concerning arrest with warrant, provided:
"That for any crime or offence against the United States, the
offender may, by any justice or judge of the United States, or by
any justice of the peace, or other magistrate of any of the United
States where he may be found agreeably to the usual mode of process
against offenders in such state, and at the expense of the United
States, be arrested, and imprisoned or bailed, as the case may be,
for trial before such court of the United States as by this act has
cognizance of the offence."
This provision has remained substantially similar to this day.
18 U.S.C. § 591.
See also 1 Ops.Atty.Gen. 85, 86.
[
Footnote 9]
48 Stat. 1008, 49 Stat. 77, 5 U.S.C. § 300a.
[
Footnote 10]
49 Stat. 378, 28 U.S.C. § 504a.
[
Footnote 11]
1 Stat. 425, 12 Stat. 282, 28 U.S.C. § 504.
[
Footnote 12]
49 Stat. 877, 18 U.S.C. § 53a.
[
Footnote 13]
18 U.S.C. § 88.
[
Footnote 14]
18 U.S.C. § 72.
[
Footnote 15]
See, for example, Byars v. United States, 273 U. S.
28,
273 U. S.
29.