Petitioner was convicted in a federal district court for a
violation of the Liquor Enforcement Act of 1936, on charges of
transporting intoxicating liquor into Oklahoma contrary to the laws
of that State. He challenged the validity of his conviction because
of the use in evidence against him of liquor seized in a search of
his automobile without a warrant and allegedly in violation of the
Fourth Amendment. At the hearing on petitioner's motion to suppress
this evidence, it appeared that one of the federal agents who made
the search and seizure had arrested petitioner five months
previously for illegally transporting liquor; that he had twice
seen petitioner loading liquor into a car or truck in Missouri,
where the sale of liquor was legal, and that he knew petitioner had
a reputation for hauling liquor. This officer, accompanied by
another, recognized petitioner and his car, which appeared to be
heavily loaded, going west in Oklahoma not far from the Missouri
line. They gave chase, overtook petitioner, and forced his car to
the side of the road. Upon interrogation, petitioner admitted that
he had twelve cases of liquor in his car, whereupon the officers
searched the car, seized the liquor and arrested petitioner.
Held:
1. The facts taking place before petitioner made the
incriminating statements were sufficient to show probable cause for
the search, and the evidence seized was admissible against
petitioner at the trial.
Carroll v. United States,
267 U. S. 132,
followed. Pp.
338 U. S.
165-171.
2. The officer's knowledge that petitioner was engaging in
illicit liquor-running was not based wholly or largely on surmise
or hearsay; the facts derived from his personal observation were
sufficient in themselves, without the hearsay concerning general
reputation, to sustain his conclusion concerning the illegal
character of petitioner's operations. P.
338 U. S.
172.
3. It was not improper to admit as evidence on the issue of
probable cause the fact that the officer had arrested the
petitioner several months before for illegal transportation of
liquor, although the identical evidence was properly excluded at
the trial on the issue of guilt. Pp.
338 U. S.
172-174.
Page 338 U. S. 161
4. Probable cause exists where the facts and circumstances
within the officers' knowledge, and of which they have reasonably
trustworthy information, are sufficient in themselves to warrant a
belief by a man of reasonable caution that a crime is being
committed. Pp.
338 U. S.
175-176.
165 F.2d 512, affirmed.
Petitioner was convicted in the federal district court for a
violation of the Liquor Enforcement Act. The Court of Appeals
affirmed. 165 F.2d 512. This Court granted certiorari. 333 U.S.
841.
Affirmed, p.
338 U. S. 178.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
Brinegar was convicted of importing intoxicating liquor into
Oklahoma from Missouri in violation of the federal statute which
forbids such importation contrary to the laws of any state.
[
Footnote 1] His conviction was
based in
Page 338 U. S. 162
part on the use in evidence against him of liquor seized from
his automobile in the course of the alleged unlawful
importation.
Prior to the trial, Brinegar moved to suppress this evidence as
having been secured through an unlawful search and seizure.
[
Footnote 2] The motion was
denied, as was a renewal of the objection at the trial.
The Court of Appeals affirmed the conviction, 165 F.2d 512, and
certiorari was sought solely on the ground that the search and
seizure contravened the Fourth Amendment, and therefore the use of
the liquor in evidence vitiated the conviction. We granted the writ
to determine this question. 333 U.S. 841.
The facts are substantially undisputed. At about six o'clock on
the evening of March 3, 1947, Malsed, an investigator of the
Alcohol Tax Unit, and Creehan, a special investigator, were parked
in a car beside a highway near the Quapaw Bridge in northeastern
Oklahoma. The point was about five miles west of the
Missouri-Oklahoma line. Brinegar drove past headed west in his Ford
coupe. Malsed had arrested him about five months earlier for
illegally transporting liquor; had seen him loading liquor into a
car or truck in Joplin, Missouri, on at least two occasions during
the preceding six months, and knew him to have a reputation for
hauling liquor. As Brinegar passed, Malsed recognized both him and
the Ford. He told Creehan, who was driving the officers' car,
that
Page 338 U. S. 163
Brinegar was the driver of the passing car. Both agents later
testified that the car, but not especially its rear end, appeared
to be "heavily loaded," and "weighted with something." Brinegar
increased his speed as he passed the officers. They gave chase.
After pursuing him for about a mile at top speed, they gained on
him as his car skidded on a curve, sounded their siren, overtook
him, and crowded his car to the side of the road by pulling across
in front of it. The highway was one leading from Joplin, Missouri,
toward Vinita, Oklahoma, Brinegar's home.
As the agents got out of their car and walked back toward
petitioner, Malsed said, "Hello, Brinegar, how much liquor have you
got in the car?" or "How much liquor have you got in the car this
time?" Petitioner replied, "Not too much," or "Not so much." After
further questioning, he admitted that he had twelve cases in the
car. Malsed testified that one case, which was on the front seat,
was visible from outside the car, but petitioner testified that it
was covered by a lap robe. Twelve more cases were found under and
behind the front seat. The agents then placed Brinegar under arrest
and seized the liquor.
The district judge, after a hearing on the motion to suppress at
which the facts stated above appeared in evidence, was of the
opinion that
"the mere fact that the agents knew that this defendant was
engaged in hauling whiskey, even coupled with the statement that
the car appeared to be weighted, would not be probable cause for
the search of this car."
Therefore, he thought, there was no probable cause when the
agents began the chase. He held, however, that the voluntary
admission made by petitioner after his car had been stopped
constituted probable cause for a search, regardless of the legality
of the arrest and detention, and that, therefore, the evidence was
admissible. At the trial, as has been said, the court overruled
petitioner's renewal of the objection.
Page 338 U. S. 164
The Court of Appeals, one judge dissenting, took essentially the
view held by the District Court. The dissenting judge thought that
the search was unlawful, and therefore statements made during its
course could not justify the search.
The crucial question is whether there was probable cause for
Brinegar's arrest, in the light of prior adjudications on this
problem, more particularly
Carroll v. United States,
267 U. S. 132,
which, on its face, most closely approximates the situation
presented here. [
Footnote
3]
The
Carroll decision held that, under the Fourth
Amendment, a valid search of a vehicle moving on a public highway
may be had without a warrant, but only if probable cause for the
search exists. [
Footnote 4] The
Court then went on to rule that the facts presented amounted to
probable cause for the search of the automobile there involved.
267 U. S. 267 U.S.
132,
267 U. S.
160.
In the
Carroll case, three federal prohibition agents
and a state officer stopped and searched the defendants' car on a
highway leading from Detroit to Grand Rapids, Michigan, and seized
a quantity of liquor discovered in the search. About three months
before the search, the two defendants and another man called on two
of the agents at an apartment in Grand Rapids and, unaware that
they were dealing with federal agents, agreed to sell one of the
agents three cases of liquor. Both agents noticed the Oldsmobile
roadster in which the three men came to the
Page 338 U. S. 165
apartment and its license number. Presumably because the
official capacity of the proposed purchaser was suspected by the
defendants, the liquor was never delivered.
About a week later the same two agents, while patrolling the
road between Grand Rapids and Detroit on the lookout for violations
of the National Prohibition Act, were passed by the defendants, who
were proceeding in a direction from Grand Rapids toward Detroit in
the same Oldsmobile roadster. The agents followed the defendants
for some distance but lost trace of them. Still later, on the
occasion of the search, while the officers were patrolling the same
highway, they met and passed the defendants, who were in the same
roadster, going in a direction from Detroit toward Grand Rapids.
Recognizing the defendants, the agents turned around, pursued them,
stopped them about sixteen miles outside Grand Rapids, searched
their car and seized the liquor it carried.
This Court ruled that the information held by the agents,
together with the judicially noticed fact that Detroit was "one of
the most active centers for introducing illegally into this country
spirituous liquors for distribution into the interior" (267 U.S. at
267 U. S.
160), constituted probable cause for the search.
I
Obviously the basic facts held to constitute probable cause in
the
Carroll case were very similar to the basic facts
here. In each case, the search was of an automobile moving on a
public highway, and was made without a warrant by federal officers
charged with enforcing federal statutes outlawing the
transportation of intoxicating liquors (except under conditions not
complied with). [
Footnote
5]
Page 338 U. S. 166
In each instance, the officers were patrolling the highway in
the discharge of their duty. And in each, before stopping the car
or starting to pursue it, they recognized both the driver and the
car, from recent personal contact and observation, as having been
lately engaged in illicit liquor dealings. [
Footnote 6] Finally, each driver was proceeding in his
identified car in a direction from a known source of liquor supply
toward a probable illegal market, under circumstances indicating no
other probable purpose than to carry on his illegal adventure.
[
Footnote 7]
These are the ultimate facts. Necessarily, the concrete,
subordinate facts on which they were grounded in the two cases
differed somewhat in detail. The more important of the variations
in details of the proof are as follows:
In
Carroll, the agent's knowledge of the primary and
ultimate fact that the accused were engaged in liquor running was
derived from the defendants' offer to sell liquor to the agents
some three months prior to the search, while here, that knowledge
was derived largely from Malsed's personal observation, reinforced
by hearsay; the officers, when they bargained for the liquor in
Carroll, saw the number of the defendants' car, whereas no
such fact is shown in this record, and in
Carroll, the
Court took judicial notice that Detroit was on the international
boundary and an active center for illegal importation
Page 338 U. S. 167
of spirituous liquors for distribution into the interior, while,
in this case, the facts that Joplin, Missouri, was a ready source
of supply for liquor and Oklahoma a place of likely illegal market
were known to the agent Malsed from his personal observation and
experience, as well as from facts of common knowledge.
Treating first the two latter and less important matters, in
view of the positive and undisputed evidence concerning Malsed's
identification of Brinegar's Ford, we think no significance
whatever attaches, for purposes of distinguishing the cases, to the
fact that, in the
Carroll case, the officers saw and
recalled the license number of the offending car, while this record
discloses no like recollection.
Likewise, it is impossible to distinguish the
Carroll
case with reference to the proof relating to the source of supply,
the place of probable destination and illegal market, and
consequently the probability that the known liquor operators were
using the connecting highway for the purposes of their unlawful
business.
There were, of course, some legal as well as some factual
differences in the two situations. Under the statute in review in
Carroll, the whole nation was legally dry. Not only the
manufacture, but the importation, transportation and sale of
intoxicating liquors were prohibited throughout the country. Under
the statute now in question, only the importation of such liquors
contrary to the law of the state into which they are brought and in
which they were seized is forbidden.
In the
Carroll case, the Court judicially noticed that
Detroit was located on the international boundary with Canada, and
had become an active center for illegally bringing liquor into the
country for distribution into the interior. This was pertinent, in
connection with other circumstances, for showing the probability
under which the agents acted that use of the highway connecting
Page 338 U. S. 168
Detroit and Grand Rapids by the known operators in liquor was
for the purpose of carrying on their unlawful traffic.
In this case, the record shows that Brinegar had used Joplin,
Missouri, to Malsed's personal knowledge derived from direct
observation, not merely from hearsay as seems to be suggested, as a
source of supply on other occasions within the preceding six
months. It also discloses that Brinegar's home was in Vinita,
Oklahoma, and that Brinegar, when apprehended, was traveling in a
direction leading from Joplin to Vinita, at a point about four or
five miles west of the Missouri-Oklahoma line.
Joplin, like Detroit in the
Carroll case, was a ready
source of supply. But, unlike Detroit, it was not an illegal
source. So far as appears, Brinegar's purchases there were entirely
legal. And so, we may assume for present purposes, was his
transportation of the liquor in Missouri until he reached and
crossed the state line into Oklahoma.
This difference, however, is insubstantial. For the important
thing here is not whether Joplin was an illegal source of supply;
it is rather that Joplin was a ready, convenient, and probable one
for persons disposed to violate the Oklahoma and federal statutes.
That fact was demonstrated fully not only by the geographic facts,
but by Malsed's direct and undisputed testimony of his personal
observation of Brinegar's use of liquor-dispensing establishments
in Joplin for procuring his whiskey. Such direct evidence was
lacking in
Carroll as to Detroit, and, for that reason,
the Court resorted to judicial notice of the commonly known facts
to supply that deficiency. Malsed's direct testimony, based on his
personal observation, dispensed with that necessity in this
case.
The situation relating to the probable place of market, as
bearing on the probability of unlawful importation, is somewhat
different. Broadly on the facts, this may well have been taken to
be the State of Oklahoma as a
Page 338 U. S. 169
whole or its populous northeastern region. From the facts of
record, we know, as the agents knew, that Oklahoma was a "dry"
state. At the time of the search, its law forbade the importation
of intoxicating liquors from other states except under a permit not
generally procurable [
Footnote
8] and which there is no pretense Brinegar had secured or
attempted to secure. This fact, taken in connection with the known
"wet" status of Missouri and the location of Joplin close to the
Oklahoma line, affords a very natural situation for persons
inclined to violate the Oklahoma and federal statutes to ply their
trade. The proof therefore concerning the source of supply, the
place of probable destination and illegal market, and hence the
probability that Brinegar was using the highway for the forbidden
transportation, was certainly no less strong than the showing in
these respects in the
Carroll case. [
Footnote 9]
Finally, as for the most important potential distinction,
namely, that concerning the primary and ultimate fact that the
petitioner was engaging in liquor running, Malsed's personal
observation of Brinegar's recent activities established that he was
so engaged quite as effectively as did the agent's prior bargaining
with the defendants in the
Carroll case. He saw Brinegar
loading liquor, in
Page 338 U. S. 170
larger quantities than would be normal for personal consumption,
into a car or a truck in Joplin on other occasions during the six
months prior to the search. He saw the car Brinegar was using in
this case in use by him at least once in Joplin within that period,
and followed it. And, several months prior to the search, he had
arrested Brinegar for unlawful transportation of liquor, and this
arrest had resulted in an indictment which was pending at the time
of this trial. Moreover Malsed instantly recognized Brinegar's Ford
coupe and Brinegar as the driver when he passed the parked police
car. And, at that time, Brinegar was moving in a direction from
Joplin toward Vinita, only a short distance inside Oklahoma from
the state line.
All these facts are undisputed. Wholly apart from Malsed's
knowledge that Brinegar bore the general reputation of being
engaged in liquor running, they constitute positive and convincing
evidence that Brinegar was engaged in that activity, no less
convincing than the evidence in
Carroll that the
defendants had offered to sell liquor to the officers. The evidence
here is undisputed, is admissible on the issue of probable cause,
and clearly establishes that the agent had good ground for
believing that Brinegar was engaged regularly throughout the period
in illicit liquor running and dealing.
Notwithstanding the variations in detail, therefore, we think
the proof in this case furnishes support quite as strong as that
made in the
Carroll case, indeed stronger in some
respects, to sustain the ultimate facts there held in the aggregate
to constitute probable cause for a search identical in all
substantial and material respects with the one made here. Nothing
in the variations of detail affords a substantial basis for
undermining here any of the ultimate facts held to be sufficient in
Carroll or for distinguishing the cases. Each of the
ultimate facts found in
Carroll to constitute probable
cause, when taken together,
Page 338 U. S. 171
is present in this case and is fully substantiated by the proof.
Accordingly, the
Carroll decision must be taken to control
this situation, unless it is now to be overruled.
This is true although the trial court and the Court of Appeals,
including the dissenting judge, were of the opinion, as stated by
the latter court,
"that the facts within the knowledge of the investigators and of
which they had reasonable trustworthy information prior to the time
the incriminating statements were made by Brinegar were not
sufficient to lead a reasonably discreet and prudent man to believe
that intoxicating liquor was being transported in the coupe, and
did not constitute probable cause for a search."
165 F.2d at 514. If, as we think, the
Carroll case is
indistinguishable from this one on the material facts, and that
decision is to continue in force, it necessarily follows that the
quoted "finding" or "conclusion" was erroneous. [
Footnote 10] In the absence of any
significant difference in the facts, it cannot be that the Fourth
Amendment's incidence turns on whether different trial judges draw
general conclusions that the facts are sufficient or insufficient
to constitute probable cause.
II
It remains to consider one further asserted difference between
this case and the
Carroll case, having to do with the
admissibility or inadmissibility at the trial of the evidence on
which the agents acted in making the search, particularly the
evidence concerning their knowledge that the defendants were
engaging in illicit liquor running.
Page 338 U. S. 172
It is argued first that this case can be distinguished from
Carroll because Malsed's knowledge of this primary and
ultimate fact rested wholly or largely on surmise or hearsay. This
argument is disproved by the facts of record which we have set
forth above. There was hearsay, but there was much more. Indeed, as
we have emphasized, the facts derived from Malsed's personal
observations were sufficient, in themselves, without the hearsay
concerning general reputation, to sustain his conclusion concerning
the illegal character of Brinegar's operations.
But a further distinction based upon inadmissibility of the
evidence is asserted. It is said that while, in
Carroll,
the defendants' offer to sell liquor to the agents was admissible
and was admitted at the trial, here, the evidence that Malsed had
arrested Brinegar for illegal transportation of liquor several
months before the search, though admitted on the hearing on the
motion to suppress, was excluded at the trial.
Cf. Michelson v.
United States, 335 U. S. 469. The
inference seems to be that the evidence concerning the prior arrest
should not have been received at the hearing on the motion. In any
event, the conclusion is drawn that the factors relating to
inadmissibility of the evidence here, for purposes of proving guilt
at the trial, deprive the evidence as a whole of sufficiency to
show probable cause for the search, and therefore distinguish this
case from the
Carroll case.
Apart from its failure to take account of the facts disclosed by
Malsed's direct and personal observation, even if his testimony
concerning the prior arrest were excluded, the so-called
distinction places a wholly unwarranted emphasis upon the criterion
of admissibility in evidence, to prove the accused's guilt, of the
facts relied upon to show probable cause. That emphasis, we think,
goes much too far in confusing and disregarding
Page 338 U. S. 173
the difference between what is required to prove guilt in a
criminal case and what is required to show probable cause for
arrest or search. It approaches requiring (if it does not, in
practical effect, require) proof sufficient to establish guilt in
order to substantiate the existence of probable cause. There is a
large difference between the two things to be proved, as well as
between the tribunals which determine them, and therefore a like
difference in the quanta and modes of proof required to establish
them.
For a variety of reasons, relating not only to probative value
and trustworthiness but also to possible prejudicial effect upon a
trial jury and the absence of opportunity for cross-examination,
the generally accepted rules of evidence throw many exclusionary
protections about one who is charged with and standing trial for
crime. Much evidence of real and substantial probative value goes
out on considerations irrelevant to its probative weight, but
relevant to possible misunderstanding or misuse by the jury.
Thus, in this case, the trial court properly excluded from the
record at the trial,
cf. Michelson v. United States,
335 U. S. 469,
Malsed's testimony that he had arrested Brinegar several months
earlier for illegal transportation of liquor, and that the
resulting indictment was pending in another court at the time of
the trial of this case. This certainly was not done on the basis
that the testimony concerning arrest, or perhaps even the
indictment, was surmise or hearsay, or that it was without
probative value. Yet the same court admitted the testimony at the
hearing on the motion to suppress the evidence seized in the
search, where the issue was not guilt, but probable cause, and was
determined by the court without a jury. [
Footnote 11]
Page 338 U. S. 174
The court's rulings, one admitting, the other excluding the
identical testimony, were neither inconsistent nor improper. They
illustrate the difference in standards and latitude allowed in
passing upon the distinct issues of probable cause and guilt. Guilt
in a criminal case must be proved beyond a reasonable doubt, and by
evidence confined to that which long experience in the common law
tradition, to some extent embodied in the Constitution, has
crystallized into rules of evidence consistent with that standard.
These rules are historically grounded rights of our system,
developed to safeguard men from dubious and unjust convictions,
with resulting forfeitures of life, liberty and property.
However, if those standards were to be made applicable in
determining probable cause for an arrest or for search and seizure,
more especially in cases such as this involving moving vehicles
used in the commission of crime, few indeed would be the situations
in which an officer, charged with protecting the public interest by
enforcing the law, could take effective action toward that end.
[
Footnote 12] Those
standards have seldom been so applied. [
Footnote 13]
Page 338 U. S. 175
In dealing with probable cause, however, as the very name
implies, we deal with probabilities. These are not technical; they
are the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act. The
standard of proof is accordingly correlative to what must be
proved.
"The substance of all the definitions" of probable cause "is a
reasonable ground for belief of guilt."
McCarthy v. De
Armit, 99 Pa. St. 63, 69, quoted with approval in the
Carroll opinion. 267 U.S. at
267 U. S. 161.
And this "means less than evidence which would justify
condemnation" or conviction, as Marshall, C.J., said for the Court
more than a century ago in
Locke v. United
States, 7 Cranch 339,
11 U. S. 348.
Since Marshall's time, at any rate, [
Footnote 14] it has come to mean more than bare
suspicion: probable cause exists where
"the facts and circumstances within their [the officers']
knowledge and of which they had reasonably trustworthy information
[are] sufficient in themselves to warrant a man of reasonable
caution in the
Page 338 U. S. 176
belief that"
an offense has been or is being committed.
Carroll v. United
States, 267 U. S. 132,
267 U. S. 162.
[
Footnote 15]
These long-prevailing standards seek to safeguard citizens from
rash and unreasonable interferences with privacy and from unfounded
charges of crime. They also seek to give fair leeway for enforcing
the law in the community's protection. Because many situations
which confront officers in the course of executing their duties are
more or less ambiguous, room must be allowed for some mistakes on
their part. But the mistakes must be those of reasonable men,
acting on facts leading sensibly to their conclusions of
probability. The rule of probable cause is a practical,
nontechnical conception affording the best compromise that has been
found for accommodating these often opposing interests. Requiring
more would unduly hamper law enforcement. To allow less would be to
leave law-abiding citizens at the mercy of the officers' whim or
caprice.
The troublesome line posed by the facts in the
Carroll
case and this case is one between mere suspicion and probable
cause. That line necessarily must be drawn by an act of judgment
formed in the light of the particular situation and with account
taken of all the circumstances. No problem of searching the home or
any other place of privacy was presented either in
Carroll
or here. Both cases involve freedom to use public highways in
swiftly moving vehicles for dealing in contraband, and to be
unmolested
Page 338 U. S. 177
by investigation and search in those movements. In such a case,
the citizen who has given no good cause for believing he is engaged
in that sort of activity is entitled to proceed on his way without
interference. [
Footnote 16]
But one who recently and repeatedly has given substantial ground
for believing that he is engaging in the forbidden transportation
in the area of his usual operations has no such immunity, if the
officer who intercepts him in that region knows that fact at the
time he makes the interception and the circumstances under which it
is made are not such as to indicate the suspect is going about
legitimate affairs.
This does not mean, as seems to be assumed, that every traveler
along the public highways may be stopped and searched at the
officers' whim, caprice or mere suspicion. [
Footnote 17] The question presented in the
Carroll case lay on the border between suspicion and
probable cause. But the Court carefully considered that problem and
resolved it by concluding that the facts within the officers'
knowledge when they intercepted the Carroll defendants amounted to
more than mere suspicion, and constituted probable cause for their
action. We cannot say this conclusion was wrong, or was so lacking
in reason and consistency with the Fourth Amendment's purposes that
it
Page 338 U. S. 178
should now be overridden. Nor, as we have said, can we find in
the present facts any substantial basis for distinguishing this
case from the
Carroll case.
Accordingly, the judgment is
Affirmed.
[
Footnote 1]
Section 3(a) of the Liquor Enforcement Act of 1936, 49 Stat.
1928, 27 U.S.C. § 223, provides:
"Whoever shall import, bring, or transport any intoxicating
liquor into any State in which all sales (except for scientific,
sacramental, medicinal, or mechanical purposes) of intoxicating
liquor containing more than 4 percentum of alcohol by volume are
prohibited, otherwise than in the course of continuous interstate
transportation through such State, or attempt so to do, or assist
in so doing, shall: (1) If such liquor is not accompanied by such
permit or permits, license or licenses therefor as are now or
hereafter required by the laws of such State; or (2) if all
importation, bringing, or transportation of intoxicating liquor
into such State is prohibited by the laws thereof; be guilty of a
misdemeanor and shall be fined not more than $1,000 or imprisoned
not more than one year, or both."
Okla.Sess.Laws, 1939, c. 16, Art. 1, § 1, in effect at the time
of petitioner's arrest, made it unlawful to import or cause to be
imported into that state, without a permit, any intoxicating liquor
containing more than 4 percent of alcohol by volume.
[
Footnote 2]
"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."
U.S.Const. Amend. IV.
[
Footnote 3]
Neither the opinion of the Court of Appeals nor the unpublished
opinion of the trial court refers to the
Carroll case.
[
Footnote 4]
"The Fourth Amendment does not denounce all searches or
seizures, but only such as are unreasonable. . . . On reason and
authority the true rule is that, if the search and seizure without
a warrant are made upon probable cause, that is, upon a belief,
reasonably arising out of circumstances known to the seizing
officer, that an automobile or other vehicle contains that which by
law is subject to seizure and destruction, the search and seizure
are valid."
Carroll v. United States, 267 U.
S. 132,
267 U. S. 147,
267 U. S.
149.
[
Footnote 5]
The substantive offense charged in
Carroll was
violation of the National Prohibition Act, 41 Stat. 305; here,
violation of the Liquor Enforcement Act of 1936.
[
Footnote 6]
In this case, identification of the car as having been
previously used by Brinegar in his liquor-running activities was
inferential, although identification of its use by him in Joplin,
Mo. his source of supply, was direct and undisputed.
[
Footnote 7]
The Government also stresses the fact, not present in the
Carroll case, of flight by Brinegar after he realized he
was being pursued. We find it is unnecessary to take account of
this factor in deciding this case. As to the factor of flight,
see Husty v. United States, 282 U.
S. 694,
282 U. S. 700
701;
Talley v. United States, 159 F.2d 703;
United
States v. Heitner, 149 F.2d 105, 107;
Jones v. United
States, 131 F.2d 539, 541;
Levine v. United States,
138 F.2d 627, 629.
[
Footnote 8]
It was unlawful to import into Oklahoma, without a permit, any
intoxicating liquor, as defined by the laws of that state,
containing more than four percent of alcohol by volume.
See note 1
supra. Manufacture, sale, furnishing or transportation of
intoxicating liquor was forbidden in Oklahoma. 37 Okla.Stat. § 1
(1941).
[
Footnote 9]
Indeed, the showing here was stronger, because there was no
necessity, as there was in the
Carroll case, for resorting
to judicial notice to establish either the probable source of
supply or that it was illegal. On the present record, judicial
notice is hardly needed to give us cognizance of the differing laws
of Missouri and Oklahoma, or of Joplin's proximity to the state
line and its ready convenience to one living as near by as Vinita
who might be disposed to use it as a base of supply for importing
liquor into Oklahoma in violation of the state and federal
statutes.
[
Footnote 10]
As has been noted above, the
Carroll case is neither
cited nor referred to in any of the opinions filed in the trial
court and the Court of Appeals. Nor is there anything in the record
before us showing that the
Carroll decision was considered
in any of the rulings made in the hearing on the motion to
suppress, at the trial, or in the Court of Appeals.
[
Footnote 11]
The court however thought that, even with the fact of the arrest
before it, the evidence was insufficient to show probable cause at
the time Brinegar passed the police car.
[
Footnote 12]
The inappropriateness of applying the rules of evidence as a
criterion to determine probable cause is apparent in the case of an
application for a warrant before a magistrate, the context in which
the issue of probable cause most frequently arises. The ordinary
rules of evidence are generally not applied in
ex parte
proceedings,
"partly because there is no opponent to invoke them, partly
because the judge's determination is usually discretionary, partly
because it is seldom final, but mainly because the system of
Evidence rules was devised for the special control of trials by
jury."
1 Wigmore, Evidence (3d ed., 1940) 19.
See also Note,
46 Harv.L.Rev. 1307, 1310-1311.
[
Footnote 13]
But see, e.g., Grau v. United States, 287 U.
S. 124,
287 U. S. 128,
in which it was said by way of dictum that
"A search warrant may issue only upon evidence which would be
competent in the trial of the offense before a jury (
Giles v.
United States, 284 Fed. 208;
Wagner v. United States,
8 F. (2d) 581. . . .)"
For this proposition, there was no authority in the decisions of
this Court. It was stated in a case in which the evidence adduced
to prove probable cause was not incompetent, but was insufficient
to support the inference necessary to the existence of probable
cause. The statement has not been repeated by this Court.
The
Wagner case relies solely upon
Giles, the
other ease cited in
Grau, and holds a warrant bad which
issued on the basis of "hearsay and conclusions." The
Grau
dictum occasionally has been applied or stated as dictum by the
courts of appeals and district courts:
Simmons v. United
States, 18 F.2d 85, 88;
Worthington v. United States,
166 F.2d 557, 564-565;
see also Reeve v.
Howe, 33 F. Supp.
619, 622;
United States v. Novero, 58 F. Supp.
275, 279.
Cf. Davis v. United States, 35 F.2d 957.
See Note, 46 Harv.L.Rev. 1307, 1310-1311, for a criticism
of the
Grau dictum.
And see note 15 infra and text.
[
Footnote 14]
Marshall's full statement in
Locke v. United States
was:
"It may be added that the term 'probable cause,' according to
its usual acceptation, means less than evidence which would justify
condemnation, and, in all cases of seizure, has a fixed and well
known meaning. It imports a seizure made under circumstances which
warrant suspicion."
7 Cranch 339,
11 U. S.
348.
[
Footnote 15]
To the same effect are:
Husty v. United States,
282 U. S. 694,
282 U. S.
700-701;
Dumbra v. United States, 268 U.
S. 435,
268 U. S. 441;
Steele v. United States No. 1, 267 U.
S. 498,
267 U. S.
504-505;
Stacey v. Emery, 97 U. S.
642,
97 U. S.
645.
The
Carroll opinion also quotes with approval the
following statement:
"If the facts and circumstances before the officer are such as
to warrant a man of prudence and caution in believing that the
offense has been committed, it is sufficient."
P.
267 U. S. 161.
Ascription of the statement to
Locke v. United
States, 7 Cranch 339, appears to be an error in
citation.
[
Footnote 16]
See the discussion of exceptions in the
Carroll opinion,
267 U. S. 132,
267 U. S. 149
ff.
[
Footnote 17]
"It would be intolerable and unreasonable if a prohibition agent
were authorized to stop every automobile on the chance of finding
liquor, and thus subject all persons lawfully using the highways to
the inconvenience and indignity of such a search. Travelers may be
so stopped in crossing an international boundary because of
national self-protection reasonably requiring one entering the
country to identify himself as entitled to come in, and his
belongings as effects which may be lawfully brought in. But those
lawfully within the country, entitled to use the public highways,
have a right to free passage without interruption or search unless
there is known to a competent official authorized to search,
probable cause for believing that their vehicles are carrying
contraband or illegal merchandise."
Carroll v. United States, 267 U.
S. 132,
267 U. S.
153-154.
MR. JUSTICE BURTON, concurring.
I join in the opinion of the Court that there was probable cause
for the search within the standards established in
Carroll v.
United States, 267 U. S. 132.
Whether or not the necessary probable cause for a search of the
petitioner's car existed before the government agents caught up
with him and said to him, "How much liquor have you got in the car
this time?" and he replied, "Not too much," it is clear, and each
of the lower courts found, that, under all of the circumstances of
this case, the necessary probable cause for the search of the
petitioner's car then existed. If probable cause for the search
existed at that point, the search which then was begun was lawful
without a search warrant, as is demonstrated in the opinion of the
Court. That search disclosed that a crime was in the course of its
commission in the presence of the arresting officers, precisely as
those officers had good reason to believe was the fact. The ensuing
arrest of the petitioner was lawful, and the subsequent denial of
his motion to suppress the evidence obtained by the search was
properly sustained.
It is my view that it is not necessary, for the purposes of this
case, to establish probable cause for the search at any point
earlier than that of the above colloquy. The earlier events,
recited in the opinion of the Court, disclose at least ample
grounds to justify the chase and official interrogation of the
petitioner by the government agents in the manner adopted. This
interrogation quickly disclosed indisputable probable cause for the
search and for the arrest. In my view, these earlier events not
only justified the steps taken by the government
Page 338 U. S. 179
agents, but those events imposed upon the government agents a
positive duty to investigate further, in some such manner as they
adopted. It is only by alertness to proper occasions for prompt
inquiries and investigations that effective prevention of crime and
enforcement of law is possible. Government agents are commissioned
to represent the interests of the public in the enforcement of the
law, and this requires affirmative action not only when there is
reasonable ground for an arrest or probable cause for a search, but
when there is reasonable ground for an investigation. This is
increasingly true when the facts point directly to a crime in the
course of commission in the presence of the agent. Prompt
investigation may then not only discover, but, what is still more
important, may interrupt, the crime and prevent some or all of its
damaging consequences.
In the present case, from the moment that the agents saw this
petitioner driving his heavily laden car in Oklahoma, evidently en
route from Missouri, the events justifying and calling for an
interrogation of him rapidly gained cumulative force. Nothing
occurred that even tended to lessen the reasonableness of the
original basis for the suspicion of the agents that a crime within
their particular line of duty was being committed in their
presence. Nothing occurred to make it unlawful for them, in line of
duty, to make the interrogation which suggested itself to them.
When their interrogation of the petitioner led to his voluntary
response as quoted above, that response demonstrated ample probable
cause for an immediate search of the petitioner's car for the
contraband liquor which he had indicated might be found there. The
interrogation of the petitioner, thus made by the agents in their
justifiable investigation of a crime reasonably suspected by them
to be in the course of commission in their presence, cannot now be
resorted to by the petitioner in support of a motion to suppress
the evidence of that crime. Government agents have duties of
crime
Page 338 U. S. 180
prevention and crime detection, as well as the duty of arresting
offenders caught in the commission of a crime or later identified
as having committed a crime. The performance of the first duties
are as important as the performance of the last. In this case, the
performance of the first halted the commission of the crime and
also resulted in the arrest of the offender.
MR. JUSTICE JACKSON, dissenting.
When this Court recently has promulgated a philosophy that some
rights derived from the Constitution are entitled to "a preferred
position,"
Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 115,
dissent at p. 1
319 U. S. 66;
Saia v. New York, 334 U. S. 558,
334 U. S. 562,
I have not agreed. We cannot give some constitutional rights a
preferred position without relegating others to a deferred
position; we can establish no firsts without thereby establishing
seconds. Indications are not wanting that Fourth Amendment freedoms
are tacitly marked as secondary rights, to be relegated to a
deferred position.
The Fourth Amendment states:
"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."
These, I protest, are not mere second-class rights, but belong
in the catalog of indispensable freedoms. Among deprivations of
rights, none is so effective in cowing a population, crushing the
spirit of the individual, and putting terror in every heart.
Uncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary government. And
one need only briefly to have dwelt and worked among a people
possessed of many admirable qualities but deprived of these rights
to know that the human personality
Page 338 U. S. 181
deteriorates and dignity and self-reliance disappear where
homes, persons and possessions are subject at any hour to
unheralded search and seizure by the police.
But the right to be secure against searches and seizures is one
of the most difficult to protect. Since the officers are themselves
the chief invaders, there is no enforcement outside of court.
Only occasional and more flagrant abuses come to the attention
of the courts, and then only those where the search and seizure
yields incriminating evidence and the defendant is at least
sufficiently compromised to be indicted. If the officers raid a
home, an office, or stop and search an automobile but find nothing
incriminating, this invasion of the personal liberty of the
innocent too often finds no practical redress. There may be, and I
am convinced that there are, many unlawful searches of homes and
automobiles of innocent people which turn up nothing incriminating,
in which no arrest is made, about which courts do nothing, and
about which we never hear.
Courts can protect the innocent against such invasions only
indirectly and through the medium of excluding evidence obtained
against those who frequently are guilty. Federal courts have used
this method of enforcement of the Amendment, in spite of its
unfortunate consequences on law enforcement, although many state
courts do not. This inconsistency does not disturb me, for local
excesses or invasions of liberty are more amenable to political
correction, the Amendment was directed only against the new and
centralized government, and any really dangerous threat to the
general liberties of the people can come only from this source. We
must therefore look upon the exclusion of evidence in federal
prosecutions, if obtained in violation of the Amendment, as a means
of extending protection against the central government's agencies.
So a search against Brinegar's car must be regarded as a search of
the car of Everyman.
Page 338 U. S. 182
We must remember that the extent of any privilege of search and
seizure without warrant which we sustain, the officers interpret
and apply themselves and will push to the limit. We must remember,
too, that freedom from unreasonable search differs from some of the
other rights of the Constitution in that there is no way in which
the innocent citizen can invoke advance protection. For example,
any effective interference with freedom of the press, or free
speech, or religion, usually requires a course of suppressions
against which the citizen can, and often does, go to the court and
obtain an injunction. Other rights, such as that to an impartial
jury or the aid of counsel, are within the supervisory power of the
courts themselves. Such a right as just compensation for the taking
of private property may be vindicated after the act in terms of
money.
But an illegal search and seizure usually is a single incident,
perpetrated by surprise, conducted in haste, kept purposely beyond
the court's supervision, and limited only by the judgment and
moderation of officers whose own interests and records are often at
stake in the search. There is no opportunity for injunction or
appeal to disinterested intervention. The citizen's choice is
quietly to submit to whatever the officers undertake or to resist
at risk of arrest or immediate violence.
And we must remember that the authority which we concede to
conduct searches and seizures without warrant may be exercised by
the most unfit and ruthless officers, as well as by the fit and
responsible, and resorted to in case of petty misdemeanors as well
as in the case of the gravest felonies.
With this prologue, I come to the case of Brinegar. His
automobile was one of his "effects," and hence within the express
protection of the Fourth Amendment. Undoubtedly the automobile
presents peculiar problems for enforcement agencies, is frequently
a facility for the perpetration of crime, and an aid in the escape
of criminals.
Page 338 U. S. 183
But if we are to make judicial exceptions to the Fourth
Amendment for these reasons, it seems to me they should depend
somewhat upon the gravity of the offense. If we assume, for
example, that a child is kidnaped and the officers throw a
roadblock about the neighborhood and search every outgoing car, it
would be a drastic and undiscriminating use of the search. The
officers might be unable to show probable cause for searching any
particular car. However, I should candidly strive hard to sustain
such an action, executed fairly and in good faith, because it might
be reasonable to subject travelers to that indignity if it was the
only way to save a threatened life and detect a vicious crime. But
I should not strain to sustain such a roadblock and universal
search to salvage a few bottles of bourbon and catch a
bootlegger.
The Court sustains this search as an application of
Carroll
v. United States, 267 U. S. 132. I
dissent because I regard it as an extension of the
Carroll
case, which already has been too much taken by enforcement officers
as blanket authority to stop and search cars on suspicion. I shall
confine this opinion to showing the several ways in which this
decision seems to expand the already expansive right to stop and
search automobiles.
In the first place, national prohibition legislation was found
in the
Carroll case to have put congressional authority
back of the search without warrant of cars suspected of its
violation. No such congressional authority exists in this case. The
Court is voluntarily dispensing with warrant in this case as matter
of judicial policy, while, in the
Carroll case, the Court
could have required a warrant only by holding an Act of Congress
unconstitutional.
*
Page 338 U. S. 184
A second and important distinction is that, in the
Carroll case, the lower court had found that the evidence
showed probable cause for that search, while in this case, two
courts below have held that (except for evidence turned up after
the search, which we consider later) there was not probable cause.
If we assume the facts to be indistinguishable, this important
distinction emerges from the decisions:
Carroll held only
that these facts
permitted a District Court, if so
convinced, to find probable cause from them. The Court now holds
these facts
require a finding of probable cause. This
shift from a permissive to a mandatory basis is a shift of no
inconsiderable significance.
While the Court sustained the search without warrant in the
Carroll case, it emphatically declined to dispense with
the necessity for evidence of probable cause for making such a
search. It said:
"It would be intolerable and unreasonable if a prohibition agent
were authorized to
Page 338 U. S. 185
stop every automobile on the chance of finding liquor, and thus
subject all persons lawfully using the highways to the
inconvenience and indignity of such a search. Travelers may be so
stopped in crossing an international boundary because of national
self-protection reasonably requiring one entering the country to
identify himself as entitled to come in, and his belongings as
effects which may be lawfully brought in. But those lawfully within
the country, entitled to use the public highways, have a right to
free passage without interruption or search unless there is known
to a competent official authorized to search, probable cause for
believing that their vehicles are carrying contraband or illegal
merchandise."
267 U. S. 267 U.S.
132 at
267 U. S.
153.
Analysis of the
Carroll facts shows that, while several
facts are common to the two cases, the settings from which those
facts take color and meaning differ in essential respects.
In the
Carroll case, the primary and the ultimate fact
that the accused was engaged in liquor running was not surmise or
hearsay, as it is here. Carroll and his companion, some time before
their arrest, had come to meet the two arresting officers, not then
known as officials, upon the understanding that they were customers
wanting liquor. Carroll promised to sell and deliver them three
cases at $130 a case. For some reason, there was a failure to
deliver, but when the officers arrested them, they had this
positive and personal knowledge that these men were trafficking in
liquor. Also, it is to be noted that the officers, when bargaining
for liquor, saw and learned the number of the car these bootleggers
were using in the business and, at the time of the arrest,
recognized it as the same car.
Then this Court took judicial notice that the place whence
Carroll, when stopped, was coming, on the international boundary,
"is one of the most active centers
Page 338 U. S. 186
for introducing illegally into this country spirituous liquors
for distribution into the interior." 267 U.S. at
267 U. S. 160.
These facts provided the very foundation of the opinion of this
Court on the subject of probable cause, which it summed up as
follows:
"The partners in the original combination to sell liquor in
Grand Rapids were together in the same automobile they had been in
the night when they tried to furnish the whiskey to the officers
which was thus identified as part of the firm equipment. They were
coming from the direction of the great source of supply for their
stock to Grand Rapids, where they plied their trade. That the
officers, when they saw the defendants, believed that they were
carrying liquor we can have no doubt, and we think it is equally
clear that they had reasonable cause for thinking so."
267 U.S. at
267 U. S.
160.
Not only did the Court rely almost exclusively on information
gained in personal negotiations of the officers to buy liquor from
defendants to show probable cause, but the dissenting members
asserted it to be the only circumstance which could have subjected
the accused to any reasonable suspicion. And that is the sort of
direct evidence on personal knowledge that is lacking here.
In contrast, the proof that Brinegar was trafficking in illegal
liquor rests on inferences from two circumstances, neither one of
which would be allowed to be proved at a trial: one, it appears
that the same officers previously had arrested Brinegar on the same
charge. But there had been no conviction, and it does not appear
whether the circumstances of the former arrest indicated any strong
probability of it. In any event, this evidence of a prior arrest of
the accused would not even be admissible in a trial to prove his
guilt on this occasion.
As a second basis for inference, the officers also say that
Brinegar had the reputation of being a liquor runner. The weakness
of this hearsay evidence is revealed by contrasting
Page 338 U. S. 187
it with the personal negotiations which proved that Carroll was
one. The officers' testimony of reputation would not be admissible
in a trial of defendant unless he was unwise enough to open the
subject himself by offering character testimony.
See Greer v.
United States, 245 U. S. 559,
245 U. S.
560.
I do not say that no evidence which would be inadmissible to
prove guilt at a trial may be considered in weighing probable
cause, but I am surprised that the Court is ready to rule that
inadmissible evidence alone, as to vital facts without which other
facts give little indication of guilt, establish probable cause as
matter of law. The only other fact is that officer Malsed stated
that twice, on September 23 and on September 30, about six months
before this arrest, he saw Brinegar in a Missouri town, where
liquor is lawful, loading liquor into a truck, not the car in this
case. That is all. The Court from that draws the inference which
the courts below, familiar, we presume, with the local conditions,
refused to draw,
viz., that to be seen loading liquor into
a truck where it is lawful is proof that defendant is unlawfully
trafficking in liquor some distance away. There is not, as in the
Carroll case, evidence that he was offering liquor for
sale to anybody at any time. In the
Carroll case, the
offer to sell liquor to the officers would itself have been a law
violation. It seems rather foggy reasoning to say that the courts
are obliged to draw the same conclusion from legal conduct as from
illegal conduct.
I think we cannot say the lower courts were wrong as matter of
law in holding that there was no probable cause up to the time the
car was put off the road and stopped, and that we cannot say it was
proper to consider the deficiency supplied by what followed. When
these officers engaged in a chase at speeds dangerous to those who
participated, and to other lawful wayfarers, and ditched the
defendant's car, they were either taking the
Page 338 U. S. 188
initial steps in arrest, search and seizure or they were
committing a completely lawless and unjustifiable act. That they
intended to set out on a search is unquestioned, and there seems no
reason to doubt that, in their own minds, they thought there was
cause and right to search. They have done exactly what they would
have done, and done rightfully, if they had been executing a
warrant. At all events, whatever it may have lacked technically of
arrest, search and seizure, it was a form of coercion and duress
under color of official authority -- and a very formidable type of
duress at that.
I do not, of course, contend that officials may never stop a car
on the highway without the halting's being considered an arrest or
a search. Regulations of traffic, identifications where proper,
traffic census, quarantine regulations, and many other causes give
occasion to stop cars in circumstances which do not imply arrest or
charge of crime. And to trail or pursue a suspected car to its
destination, to observe it and keep it under surveillance, is not,
in itself, an arrest nor a search. But when a car is forced off the
road, summoned to stop by a siren, and brought to a halt under such
circumstances as are here disclosed, we think the officers are then
in the position of one who has entered a home: the search, at its
commencement, must be valid, and cannot be saved by what it turns
up.
Johnson v. United States, 333 U. S.
10;
McDonald v. United States, 335 U.
S. 451,
and see Nueslein v. District of
Columbia, 73 App.D.C. 85, 115 F.2d 690.
The findings of the two courts below make it clear that this
search began and proceeded through critical and coercive phases
without the justification of probable cause. What it yielded cannot
save it. I would reverse the judgment.
MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this
opinion.
* The
Carroll case was based on the National
Prohibition Act, 41 Stat. 305. Section 26 of that statute provided
that, when an officer discovered any person transporting liquor in
violation of the law, in any vehicle, it was the officer's duty to
seize the liquor, take possession of the vehicle, and arrest any
person found in charge thereof. The officer was required to proceed
at once against any such person, but, if no one was found claiming
the vehicle, it was to be sold after appropriate notice, and the
proceeds paid into the Treasury. Section 25 of the Act authorized
search warrants for private dwellings but only if they were being
used in the illicit liquor business.
It had been proposed to amend the statute to forbid search of an
automobile without warrant. After disagreement between the House
and the Senate, that restriction was finally rejected. In the
Carroll case, the legislative history of this proposed
(Stanley) amendment was considered at length. 267 U.S.
267 U. S.
144-146. The Court then concluded,
267 U. S. 267
U.S. 147, that, without the amendment, the Act "left the way open
for searching an automobile . . . without a warrant, if the search
was not malicious or without probable cause." And it stated the
issue thus:
"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 is
[
sic] 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? . . ."