Immigration and Naturalization Service officers arrested
petitioner on an administrative warrant for deportation, searched
the hotel room where he was arrested, his person and his luggage,
and seized certain articles. After petitioner had checked out of
his hotel room, an agent of the Federal Bureau of Investigation
made a further search of the room, without a warrant but with the
consent of the hotel management, and seized certain articles which
petitioner had left there. The articles so seized were admitted in
evidence over petitioner's objection at his trial for conspiracy to
commit espionage, and he was convicted.
Held: These searches and seizures did not violate the
Fourth or Fifth Amendment, and the use in evidence of the articles
so seized did not invalidate petitioner's conviction. Pp.
362 U. S.
218-241.
1. On the record in this case, the Government did not use the
administrative warrant of the Immigration and Naturalization
Service as an improper instrument of the Federal Bureau of
Investigation in obtaining evidence for a criminal prosecution. Pp.
362 U. S.
225-230.
2. Petitioner's claim that the administrative warrant under
which he was first arrested was invalid under the Fourth Amendment
is not properly before this Court, since it was not made below and
was expressly disavowed there. Pp.
362 U. S.
230-234.
3. The articles seized by the immigration officers during the
searches here involved were properly admitted in evidence. Pp.
362 U. S.
234-240.
4. Immigration officers who effect an arrest for deportation on
an administrative warrant have a right of incidental search
analogous to the search permitted criminal law enforcement officers
incidental to a lawful arrest. Pp.
362 U. S.
235-237.
5. The search of the hotel room by an FBI agent without a
warrant but with the consent of the hotel management, after
petitioner
Page 362 U. S. 218
had relinquished the room, and the seizure of articles which
petitioner had abandoned there were lawful, and such articles were
properly admitted in evidence. Pp.
362 U. S.
240-241.
258 F.2d 485 affirmed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The question in this case is whether seven items were properly
admitted into evidence at the petitioner's trial for conspiracy to
commit espionage. All seven items were seized by officers of the
Government without a search warrant. The seizures did not occur in
connection with the exertion of the criminal process against
petitioner. They arose out of his administrative arrest by the
United States Immigration and Naturalization Service as a
preliminary to his deportation. A motion to suppress these items as
evidence, duly made in the District Court, was denied after a full
hearing. 155 F. Supp. 8. Petitioner was tried, convicted and
sentenced to thirty years' imprisonment and to the payment of a
fine of $3,000. The Court of Appeals affirmed, 258 F.2d 485. We
granted certiorari, 358 U.S. 813, limiting the grant to the
following two questions:
"1. Whether the Fourth and Fifth Amendments to the Constitution
of the United States are violated by
Page 362 U. S. 219
a search and the seizure of evidence without a search warrant,
after an alien suspected and officially accused of espionage has
been taken into custody for deportation, pursuant to an
administrative Immigration Service warrant, but has not been
arrested for the commission of a crime?"
"2. Whether the Fourth and Fifth Amendments to the Constitution
of the United States are violated when articles so seized are
unrelated to the Immigration Service warrant and, together with
other articles obtained from such leads, are introduced as evidence
in a prosecution for espionage?"
Argument was first heard at October Term, 1958. The case having
been set down for reargument at this Term, 359 U.S. 940, counsel
were asked to discuss a series of additional questions, set out in
the margin.
*
We have considered the case on the assumption that the
conviction must be reversed should we find challenged items of
evidence to have been seized in violation of the Constitution, and
therefore improperly admitted into evidence. We find, however, that
the admission of these items was free from any infirmity, and we
affirm the judgment. (Of course the nature of the case, the fact
that it was a prosecution for espionage, has no bearing
Page 362 U. S. 220
whatever upon the legal considerations relevant to the
admissibility of evidence.)
The seven items, all in petitioner's possession at the time of
his administrative arrest, the admissibility of which is in
question were the following:
(1) a piece of graph paper, carrying groups of numbers arranged
in rows, allegedly a coded message;
(2) a forged birth certificate, certifying the birth of "Martin
Collins" In New York County in 1897;
(3) a birth certificate, certifying the birth of "Emil Goldfus"
in New York in 1902 (Emil Goldfus died in 1903);
(4) an international certificate of vaccination, issued in New
York to "Martin Collins" in 1957;
(5) a bank book of the East River Savings Bank containing the
account of "Emil Goldfus";
(6) a hollowed-out pencil containing 18 microfilms; and
(7) a block of wood, wrapped in sandpaper, and containing within
it a small booklet with a series of numbers on each page, a
so-called "cipher pad."
Items (2), (3), (4) and (5) were relevant to the issues of the
indictment for which petitioner was on trial in that they
corroborated petitioner's use of false identities. Items (1), (6)
and (7) were incriminatory as useful means for one engaged in
espionage.
The main claims which petitioner pressed upon the Court may be
thus summarized: (1) the administrative arrest was used by the
Government in bad faith; (2) administrative arrests as
preliminaries to deportation are unconstitutional; and (3)
regardless of the validity of the administrative arrest here, the
searches and seizures through which the challenged items came into
the Government's possession were not lawful ancillaries to such an
arrest. These claims cannot be judged apart from the circumstances
leading up to the arrest and the nature of
Page 362 U. S. 221
the searches and seizures. It becomes necessary to relate these
matters in considerable detail.
Petitioner was arrested by officers of the Immigration and
Naturalization Service (hereafter abbreviated as INS) on June 21,
1957, in a single room in the Hotel Latham in New York City, his
then abode. The attention of the INS had first been drawn to
petitioner several days earlier when Noto, a Deputy Assistant
Commissioner of the INS, was told by a liaison officer of the
Federal Bureau of Investigation (hereafter abbreviated as FBI) that
petitioner was believed by the FBI to be an alien residing
illegally in the United States. Noto was told of the FBI's interest
in petitioner in connection with espionage.
An uncontested affidavit before the District Court asserted the
following with regard to the events leading up to the FBI's
communication with Noto about petitioner. About one month before
the FBI communicated with Noto, petitioner had been mentioned by
Hayhanen, a recently defected Russian spy, as one with whom
Hayhanen had for several years cooperated in attempting to commit
espionage. The FBI had thereupon placed petitioner under
investigation. At the time the FBI communicated with the INS
regarding petitioner, the case against him rested chiefly upon
Hayhanen's story, and Hayhanen, although he was later to be the
Government's principal witness at the trial, at that time insisted
that he would refuse to testify should petitioner be brought to
trial, although he would fully cooperate with the Government in
secret. The Department of Justice concluded that, without
Hayhanen's testimony, the evidence was insufficient to justify
petitioner's arrest and indictment on espionage charges. The
decision was thereupon made to bring petitioner to the attention of
the INS, with a view to commencing deportation proceedings against
him.
Page 362 U. S. 222
Upon being notified of the FBI's belief that petitioner was
residing illegally in this country, Noto asked the FBI to supply
the INS with further information regarding petitioner's status as
an alien. The FBI did this within a week. The INS concluded that,
if petitioner were, as suspected, an alien, he would be subject to
deportation in that he had failed to comply with the legal duty of
aliens to notify the Attorney General every January of their
address in the United States. 8 U.S.C. § 1305. Noto then determined
on petitioner's administrative arrest as a preliminary to his
deportation. The FBI was so informed. On June 20, two INS officers,
Schoenenberger and Kanzler, were dispatched by Noto to New York to
supervise the arrest. These officers carried with them a warrant
for petitioner's arrest and an order addressed to petitioner
directing him to show cause why he should not be deported. They met
in New York with the District Director of the INS who, after the
information in the possession of the INS regarding petitioner was
put before him, signed the warrant and the order. Following this,
Schoenenberger and Kanzler went to FBI headquarters in New York,
where, by prearrangement with the FBI in Washington, they were met
by several FBI officers. These agreed to conduct agents of the INS
to petitioner's hotel so that the INS might accomplish his arrest.
The FBI officer in charge asked whether, before the petitioner was
arrested, the FBI might "interview" him in an attempt to persuade
him to "cooperate" with regard to his espionage. To this,
Schoenenberger agreed.
At 7 o'clock the next morning, June 21, two officers of the INS
and several FBI men gathered in the corridor outside petitioner's
room at the Hotel Latham. All but two FBI agents, Gamber and
Blasco, went into the room next to petitioner's, which the FBI had
occupied in the course of its investigation of petitioner.
Page 362 U. S. 223
Gamber and Blasco were charged with confronting petitioner and
soliciting his cooperation with the FBI. They had no warrant either
to arrest or to search. If petitioner proved cooperative, their
instructions were to telephone to their superior for further
instructions. If petitioner failed to cooperate, they were to
summon the waiting INS agents to execute their warrant for his
arrest.
Gamber rapped on petitioner's door. When petitioner released the
catch, Gamber pushed open the door and walked into the room,
followed by Blasco. The door was left ajar, and a third FBI agent
came into the room a few minutes later. Petitioner, who was nude,
was told to put on a pair of undershorts and to sit on the bed,
which he did. The FBI agents remained in the room questioning
petitioner for about twenty minutes. Although petitioner answered
some of their questions, he did not "cooperate" regarding his
alleged espionage. A signal was thereupon given to the two agents
of the INS waiting in the next room. These came into petitioner's
room and served petitioner with the warrant for his arrest and with
the order to show cause. Shortly thereafter, Schoenenberger and
Kanzler, who had been waiting outside the hotel, also entered
petitioner's room. These four agents of the INS remained with
petitioner in his room for about an hour. For part of this time, an
FBI agent was also in the room, and, during all of it, another FBI
agent stood outside the open door of the room, where he could
observe the interior.
After placing petitioner under arrest, the four INS agents
undertook a search of his person and of all of his belongings in
the room and the adjoining bathroom, which lasted for from fifteen
to twenty minutes. Petitioner did not give consent to this search;
his consent was not sought. The FBI agents observed this search,
but took no part in it. It was Schoenenberger's testimony to
Page 362 U. S. 224
the District Court that the purpose of this search was to
discover weapons and documentary evidence of petitioner's
"alienage" -- that is, documents to substantiate the information
regarding petitioner's status as an alien which the INS had
received from the FBI. During this search, one of the challenged
items of evidence, the one we have designated (2), a birth
certificate for "Martin Collins," was seized. Weapons were not
found, nor was any other evidence regarding petitioner's
"alienage."
When the search was completed, petitioner was told to dress
himself, to assemble his things, and to choose what he wished to
take with him. With the help of the INS agents, almost everything
in the room was packed into petitioner's baggage. A few things
petitioner deliberately left on a window sill, indicating that he
did not want to take them, and several other things which he chose
not to pack up into his luggage he put into the room's wastepaper
basket. When everything had been assembled, petitioner asked and
received permission to repack one of his suitcases. While
petitioner was doing so, Schoenenberger noticed him slipping some
papers into the sleeve of his coat. Schoenenberger seized these.
One of them was the challenged item of evidence which we have
designated (1), a piece of graph paper containing a coded
message.
When petitioner's belongings had been completely packed,
petitioner agreed to check out of the hotel. One of the FBI agents
obtained his bill from the hotel, and petitioner paid it.
Petitioner was then handcuffed and taken, along with his baggage,
to a waiting automobile, and thence to the headquarters of the INS
in New York. At INS headquarters, the property petitioner had taken
with him was searched more thoroughly than it had been in his hotel
room, and three more of the challenged items were discovered and
seized. These were the ones we have designated (3), (4) and (5),
the "Emil
Page 362 U. S. 225
Goldfus" birth certificate, the international vaccination
certificate, and the bank book.
As soon as petitioner had been taken from the hotel, an FBI
agent, Kehoe, who had been in the room adjoining petitioner's
during the arrest and search and who, like the INS agents, had no
search warrant, received permission from the hotel management to
search the room just vacated by petitioner. Although the bill which
petitioner had paid entitled him to occupy the room until 3 p.m. of
that day, the hotel's practice was to consider a room vacated
whenever a guest removed his baggage and turned in his key. Kehoe
conducted a search of petitioner's room which lasted for about
three hours. Among other things, he seized the contents of the
wastepaper basket into which petitioner had put some things while
packing his belongings. Two of the items thus seized were the
challenged items of evidence we have designated (6) and (7): a
hollow pencil containing microfilm and a block of wood containing a
"cipher pad."
Later in the day of his arrest, petitioner was taken by airplane
to a detention center for aliens in Texas. He remained there for
several weeks until arrested upon the charge of conspiracy to
commit espionage for which he was brought to trial and convicted in
the Eastern District of New York.
I
The underlying basis of petitioner's attack upon the
admissibility of the challenged items of evidence concerns the
motive of the Government in its use of the administrative arrest.
We are asked to find that the Government resorted to a subterfuge,
that the Immigration and Naturalization Service warrant here was a
pretense and sham, was not what it purported to be. According to
petitioner, it was not the Government's true purpose in arresting
him under this warrant to take him into custody pending
Page 362 U. S. 226
a determination of his deportability. The Government's real
aims, the argument runs, were (1) to place petitioner in custody so
that pressure might be brought to bear upon him to confess his
espionage and cooperate with the FBI, and (2) to permit the
Government to search through his belongings for evidence of his
espionage to be used in a designed criminal prosecution against
him. The claim is, in short, that the Government used this
administrative warrant for entirely illegitimate purposes, and that
articles seized as a consequence of its use ought to have been
suppressed.
Were this claim justified by the record, it would indeed reveal
a serious misconduct by law enforcing officers. The deliberate use
by the Government of an administrative warrant for the purpose of
gathering evidence in a criminal case must meet stern resistance by
the courts. The preliminary stages of a criminal prosecution must
be pursued in strict obedience to the safeguards and restrictions
of the Constitution and laws of the United States. A finding of bad
faith is, however, not open to us on this record. What the motive
was of the INS officials who determined to arrest petitioner, and
whether the INS, in doing so, was not exercising its powers in the
lawful discharge of its own responsibilities, but was serving as a
tool for the FBI in building a criminal prosecution against
petitioner, were issues fully canvassed in both courts below. The
crucial facts were found against the petitioner.
On this phase of the case, the district judge, having permitted
full scope to the elucidation of petitioner's claim, having seen
and heard witnesses, in addition to testimony by way of affidavits,
and after extensive argument, made these findings:
"[T]he evidence is persuasive that the action taken by the
officials of the Immigration and Naturalization Service is found to
have been in entire good faith.
Page 362 U. S. 227
The testimony of Schoenenberger and Noto leaves no doubt that,
while the first information that came to them concerning the
[petitioner] . . . was furnished by the FBI -- which cannot be an
unusual happening -- the proceedings taken by the Department
differed in no respect from what would have been done in the case
of an individual concerning whom no such information was known to
exist."
"The defendant argues that the testimony establishes that the
arrest was made under the direction and supervision of the FBI, but
the evidence is to the contrary, and it is so found."
"No good reason has been suggested why these two branches of the
Department of Justice should not cooperate, and that is the extent
of the showing made on the part of the defendant."
155 F. Supp. 8, 11. The opinion of the Court of Appeals, after
careful consideration of the matter, held that the answer "must
clearly be in the affirmative" to the question "whether the
evidence in the record supports the finding of good faith made by
the court below." 258 F.2d 485, 494.
Among the statements in evidence relied upon by the lower courts
in making these findings was testimony by Noto that the interest of
the INS in petitioner was confined to petitioner's illegal status
in the United States; that, in informing the INS about petitioner's
presence in the United States, the FBI did not indicate what action
it wanted the INS to take; that Noto himself made the decision to
arrest petitioner and to commence deportation proceedings against
him; that the FBI made no request of him to search for evidence of
espionage at the time of the arrest; and that it was "usual and
mandatory" for the FBI and INS to work together in the manner they
did. There was also the testimony of Schoenenberger, regarding the
purpose of the search he
Page 362 U. S. 228
made of petitioner's belongings, that the motive was to look for
weapons and documentary evidence of alienage. To be sure, the
record is not barren of evidence supporting an inference opposed to
the conclusion to which the two lower courts were led by the record
as a whole: for example, the facts that the INS held off its arrest
of petitioner while the FBI solicited his cooperation, and that the
FBI held itself ready to search petitioner's room as soon as it was
vacated. These elements, however, did not, and were not required
to, persuade the two courts below in the face of ample evidence of
good faith to the contrary, especially the human evidence of those
involved in the episode. We are not free to overturn the conclusion
of the courts below when justified by such solid proof.
Petitioner's basic contention comes down to this: even without a
showing of bad faith, the FBI and INS must be held to have
cooperated to an impermissible extent in this case, the case being
one where the alien arrested by the INS for deportation was also
suspected by the FBI of crime. At the worst, it may be said that
the circumstances of this case reveal an opportunity for abuse of
the administrative arrest. But to hold illegitimate, in the absence
of bad faith, the cooperation between INS and FBI would be to
ignore the scope of rightful cooperation between two branches of a
single Department of Justice concerned with enforcement of
different areas of law under the common authority of the Attorney
General.
The facts are that the FBI suspected petitioner both of
espionage and illegal residence in the United States as an alien.
That agency surely acted not only with propriety but in discharge
of its duty in bringing petitioner's illegal status to the
attention of the INS, particularly after it found itself unable to
proceed with petitioner's prosecution for espionage. Only the INS
is authorized to initiate deportation proceedings, and certainly
the
Page 362 U. S. 229
FBI is not to be required to remain mute regarding one they have
reason to believe to be a deportable alien merely because he is
also suspected of one of the gravest of crimes and the FBI
entertains the hope that criminal proceedings may eventually be
brought against him. The INS, just as certainly, would not have
performed its responsibilities had it been deterred from
instituting deportation proceedings solely because it became aware
of petitioner through the FBI, and had knowledge that the FBI
suspected petitioner of espionage. The Government has available two
ways of dealing with a criminally suspect deportable alien. It
would make no sense to say that branches of the Department of
Justice may not cooperate in pursuing one course of action or the
other once it is honestly decided what course is to be preferred.
For the same reasons, this cooperation may properly extend to the
extent and in the manner in which the FBI and INS cooperated in
effecting petitioner's administrative arrest. Nor does it taint the
administrative arrest that the FBI solicited petitioner's
cooperation before it took place, stood by while it did, and
searched the vacated room after the arrest. The FBI was not barred
from continuing its investigation in the hope that it might result
in a prosecution for espionage because the INS, in the discharge of
its duties, had embarked upon an independent decision to initiate
proceedings for deportation.
The Constitution does not require that honest law enforcement
should be put to such an irrevocable choice between two recourses
of the Government. For a contrast to the proper cooperation between
two branches of a single Department of Justice as revealed in this
case,
see the story told in
Colyer v.
Skeffington, 265 F. 17. That case sets forth in detail the
improper use of immigration authorities by the Bureau of
Investigation of the Department of Justice when the immigration
service was
Page 362 U. S. 230
a branch of the Department of Labor and was acting not within
its lawful authority, but as the cat's paw of another, unrelated
branch of the Government.
We emphasize again that our view of the matter would be totally
different had the evidence established, or were the courts below
not justified in not finding, that the administrative warrant was
here employed as an instrument of criminal law enforcement to
circumvent the latter's legal restrictions, rather than as a
bona fide preliminary step in a deportation proceeding.
The test is whether the decision to proceed administratively toward
deportation was influenced by, and was carried out for, a purpose
of amassing evidence in the prosecution for crime. The record
precludes such a finding by this Court.
II
The claim that the administrative warrant by which petitioner
was arrested was invalid, because it did not satisfy the
requirements for "warrants" under the Fourth Amendment, is not
entitled to our consideration in the circumstances before us. It
was not made below; indeed, it was expressly disavowed. Statutes
authorizing administrative arrest to achieve detention pending
deportation proceedings have the sanction of time. It would
emphasize the disregard for the presumptive respect the Court owes
to the validity of Acts of Congress, especially when confirmed by
uncontested historical legitimacy, to bring into question for the
first time such a long-sanctioned practice of government at the
behest of a party who not only did not challenge the exercise of
authority below, but expressly acknowledged its validity.
The grounds relied on in the trial court and the Court of
Appeals by petitioner were solely (in addition to the insufficiency
of the evidence, a contention not here for review) (1) the bad
faith of the Government's use of
Page 362 U. S. 231
the administrative arrest warrant and (2) the lack of a power
incidental to the execution of an administrative warrant to search
and seize articles for use as evidence in a later criminal
prosecution. At no time did petitioner question the legality of the
administrative arrest procedure either as unauthorized or as
unconstitutional. Such challenges were, to repeat, disclaimed. At
the hearing on the motion to suppress, petitioner's counsel was
questioned by the court regarding the theory of relief relied
upon:
"The Court: They [the Government] were not at liberty to arrest
him [petitioner]?"
"Mr. Fraiman: No, your Honor."
"They were perfectly proper in arresting him."
"We don't contend that at all."
"As a matter of fact, we contend it was their duty to arrest
this man as they did."
"I think it should show, or rather, it showed, admirable
thinking on the part of the FBI and the Immigration Service."
"We don't find any fault with that."
"Our contention is that, although they were permitted to arrest
this man, and in fact, had a duty to arrest this man in a manner in
which they did, they did not have a right to search his premises
for the material which related to espionage."
". . . He was charged with no criminal offense in this
warrant."
"The Court: He was suspected of being illegally in the country,
wasn't he?"
"Mr. Fraiman: Yes, your Honor."
"The Court: He was properly arrested."
"Mr. Fraiman: He was properly arrested, we concede that, your
Honor. "
Page 362 U. S. 232
Counsel further made it plain that the arrest warrant whose
validity he was conceding was "one of these Immigration warrants
which is obtained without any background material at all."
Affirmative acceptance of what is now sought to be questioned could
not be plainer.
The present form of the legislation giving authority to the
Attorney General or his delegate to arrest aliens pending
deportation proceedings under an administrative warrant, not a
judicial warrant within the scope of the Fourth Amendment, is §
242(a) of the Immigration and Nationality Act of 1952. 8 U.S.C. §
1252(a). The regulations under this Act delegate the authority to
issue these administrative warrants to the District Directors of
the INS
"[a]t the commencement of any proceeding [to deport] . . . or at
any time thereafter . . . whenever, in [their] . . . discretion, it
appears that the arrest of the respondent is necessary or
desirable."
8 CFR § 242.2(a). Also, according to these regulations,
proceedings to deport are commenced by orders to show cause issued
by the District Directors or others; and the "Operating
Instructions" of the INS direct that the application for an order
to show cause should be based upon a showing of a
prima
facie case of deportability. The warrant of arrest for
petitioner was issued by the New York District Director of the INS
at the same time as he signed an order to show cause.
Schoenenberger testified that, before the warrant and order were
issued, he and Kanzler related to the District Director what they
had learned from the FBI regarding petitioner's status as an alien,
and the order to show cause recited that petitioner had failed to
register, as aliens must. Since petitioner was a suspected spy who
had never acknowledged his residence in the United States to the
Government or openly admitted his presence here, there was ample
reason to believe that his arrest pending deportation was
"necessary or desirable." The arrest procedure followed
Page 362 U. S. 233
in the present case fully complied with the statute and
regulations.
Statutes providing for deportation have ordinarily authorized
the arrest of deportable aliens by order of an executive official.
The first of these was in 1798. Act of June 25, 1798, c. 58, § 2, 1
Stat. 571.
And see, since that time, and before the
present Act, Act of Oct. 19, 1888, c. 1210, 25 Stat. 566; Act of
Mar. 3, 1903, c. 1012, § 21, 32 Stat. 1218; Act of Feb. 20, 1907,
c. 1134, § 20, 34 Stat. 904; Act of Feb. 5, 1917, c. 29, § 19, 39
Stat. 889; Act of Oct. 16, 1918, c. 186, § 2, 40 Stat. 1012; Act of
May 10, 1920, c. 174, 41 Stat. 593; Internal Security Act of 1950,
c. 1024, Title I, § 22, 64 Stat. 1008. To be sure, some of these
statutes, namely the Acts of 1888, 1903 and 1907, dealt only with
aliens who had landed illegally in the United States, and not with
aliens sought to be deported by reason of some act or failure to
act since entering. Even apart from these, there remains
overwhelming historical legislative recognition of the propriety of
administrative arrest for deportable aliens such as petitioner.
The constitutional validity of this longstanding administrative
arrest procedure in deportation cases has never been directly
challenged in reported litigation. Two lower court cases involved
oblique challenges, which were summarily rejected.
Podolski v.
Baird, 94 F. Supp.
294;
Ex parte Avakian, 188 F. 688, 692.
See
also the discussion in
Colyer v. Skeffington, 265 F.
17,
reversed on other grounds sub nom. Skeffington v.
Katzeff, 277 F. 129, where the District Court made an
exhaustive examination of the fairness of a group of deportation
proceedings initiated by administrative arrests, but nowhere
brought into question the validity of the administrative arrest
procedure as such. This Court seems never expressly to have
directed its attention to the particular question of the
constitutional validity of administrative deportation warrants. It
has
Page 362 U. S. 234
frequently, however, upheld administrative deportation
proceedings shown by the Court's opinion to have been begun by
arrests pursuant to such warrants.
See The Japanese Immigrant
Case, 189 U. S. 86;
Zakonaite v. Wolf, 226 U. S. 272;
Bilokumsky v. Tod, 263 U. S. 149;
Carlson v. Landon, 342 U. S. 524. In
Carlson v. Landon, the validity of the arrest was
necessarily implicated, for the Court there sustained discretion in
the Attorney General to deny bail to alien Communists held pending
deportation on administrative arrest warrants. In the presence of
this impressive historical evidence of acceptance of the validity
of statutes providing for administrative deportation arrest from
almost the beginning of the Nation, petitioner's disavowal of the
issue below calls for no further consideration.
III
Since petitioner's arrest was valid, we reach the question
whether the seven challenged items, all seized during searches
which were a direct consequence of that arrest, were properly
admitted into evidence. This issue raises three questions: (1) Were
the searches which produced these items proper searches for the
Government to have made? If they were not, then whatever the nature
of the seized articles, and however proper it would have been to
seize them during a valid search, they should have been suppressed
as the fruits of activity in violation of the Fourth Amendment.
E.g., Weeks v. United States, 232 U.
S. 383,
232 U. S. 393.
(2) Were the articles seized properly subject to seizure, even
during a lawful search? We have held in this regard that not every
item may be seized which is properly inspectable by the Government
in the course of a legal search; for example, private papers
desired by the Government merely for use as evidence may not be
seized, no matter how lawful the search which
Page 362 U. S. 235
discovers them,
Gouled v. United States, 255 U.
S. 298,
255 U. S. 310,
nor may the Government seize, wholesale, the contents of a house it
might have searched,
Kremen v. United States, 353 U.
S. 346. (3) Was the Government free to use the articles,
even if properly seized, as evidence in a criminal case, the
seizures having been made in the course of a separate
administrative proceeding?
The most fundamental of the issues involved and seizures made in
petitioner's room and seizures made in petitioner's room in the
Hotel Latham. The ground of objection is that a search may not be
conducted as an incident to a lawful administrative arrest.
We take as a starting point the cases in this Court dealing with
the extent of the search which may properly be made without a
warrant following a lawful arrest for crime. The several cases on
this subject in this Court cannot be satisfactorily reconciled.
This problem has, as is well known, provoked strong and fluctuating
differences of view on the Court. This is not the occasion to
attempt to reconcile all the decisions, or to reexamine them.
Compare Marron v. United States, 275 U.
S. 192,
with Go-Bart Importing Co. v. United
States, 282 U. S. 344,
and United States v. Lefkowitz, 285 U.
S. 452;
compare Go-Bart, supra, and Lefkowitz,
supra, with Harris v. United States, 331 U.
S. 145,
and United States v. Rabinowitz,
339 U. S. 56;
compare also Harris, supra, with Trupiano v. United
States, 334 U. S. 699,
and Trupiano with Rabinowitz, supra (overruling
Trupiano). Of these cases,
Harris and
Rabinowitz set by far the most permissive limits upon
searches incidental to lawful arrests. In view of their judicial
context, the trial judge and the Government justifiably relied upon
these cases for guidance at the trial, and the petitioner himself
accepted the
Harris case on the motion to suppress, nor
does he ask this Court to reconsider
Harris and
Rabinowitz. It would, under these circumstances, be
unjustifiable retrospective
Page 362 U. S. 236
lawmaking for the Court in this case to reject the authority of
these decisions.
Are there to be permitted incidental to valid administrative
arrests, searches as broad in physical area as, and analogous in
purpose to, those permitted by the applicable precedents as
incidents to lawful arrests for crime? Specifically, were the
officers of the INS acting lawfully in this case when, after his
arrest, they searched through petitioner's belongings in his hotel
room looking for weapons and documents to evidence his "alienage"?
There can be no doubt that a search for weapons has as much
justification here as it has in the case of an arrest for crime,
where it has been recognized as proper.
E.g., Agnello v. United
States, 269 U. S. 20,
269 U. S. 30. It
is no less important for government officers, acting under
established procedure to effect a deportation arrest rather than
one for crime, to protect themselves and to insure that their
prisoner retains no means by which to accomplish an escape.
Nor is there any constitutional reason to limit the search for
materials proving the deportability of an alien, when validly
arrested, more severely than we limit the search for materials
probative of crime when a valid criminal arrest is made. The need
for the proof is as great in one case as in the other, for
deportation can be accomplished only after a hearing at which
deportability is established. Since a deportation arrest warrant is
not a judicial warrant, a search incidental to a deportation arrest
is without the authority of a judge or commissioner. But so is a
search incidental to a criminal arrest made upon probable cause
without a warrant, and, under
Rabinowitz, 339 U.S. at
339 U. S. 60,
such a search does not require a judicial warrant for its validity.
It is to be remembered that an INS officer may not arrest and
search on his own. Application for a warrant must be made to an
independent responsible officer, the District Director
Page 362 U. S. 237
of the INS, to whom a
prima facie case of deportability
must be shown. The differences between the procedural protections
governing criminal and deportation arrests are not of a quality or
magnitude to warrant the deduction of a constitutional difference
regarding the right of incidental search. If anything, we ought to
be more vigilant, not less, to protect individuals and their
property from warrantless searches made for the purpose of turning
up proof to convict than we are to protect them from searches for
matter bearing on deportability. According to the uniform decisions
of this Court deportation proceedings are not subject to the
constitutional safeguards for criminal prosecutions. Searches for
evidence of crime present situations demanding the greatest, not
the least, restraint upon the Government's intrusion into privacy;
although its protection is not limited to them, it was at these
searches which the Fourth Amendment was primarily directed. We
conclude, therefore, that government officers who effect a
deportation arrest have a right of incidental search analogous to
the search permitted criminal law enforcement officers.
Judged by the prevailing doctrine, the search of petitioner's
hotel room was justified. Its physical scope, being confined to the
petitioner's room and the adjoining bathroom, was far less
extensive than the search in
Harris. The search here was
less intensive than were the deliberately exhaustive quests in
Harris and
Rabinowitz, and its purpose not less
justifiable. The only things sought here, in addition to weapons,
were documents connected with petitioner's status as an alien.
These may well be considered as instruments or means for
accomplishing his illegal status, and thus proper objects of search
under
Harris, supra, 331 U.S. at
331 U. S.
154.
Two of the challenged items were seized during this search of
petitioner's property at his hotel room. The first was item (2), a
forged New York birth certificate
Page 362 U. S. 238
for "Martin Collins," one of the false identities which
petitioner assumed in this country in order to keep his presence
here undetected. This item was seizable when found during a proper
search, not only as a forged official document by which petitioner
sought to evade his obligation to register as an alien, but also as
a document which petitioner was using as an aid in the commission
of espionage for his undetected presence in this country was vital
to his work as a spy. Documents used as a means to commit crime are
the proper subjects of search warrants,
Gouled v. United
States, 255 U. S. 298, and
are seizable when discovered in the course of a lawful search,
Marron v. United States, 275 U. S. 192.
The other item seized in the course of the search of
petitioner's hotel room was item (1), a piece of graph paper
containing a coded message. This was seized by Schoenenberger as
petitioner, while packing his suitcase, was seeking to hide it in
his sleeve. An arresting officer is free to take hold of articles
which he sees the accused deliberately trying to hide. This power
derives from the dangers that a weapon will be concealed, or that
relevant evidence will be destroyed. Once this piece of graph paper
came into Schoenenberger's hands, it was not necessary for him to
return it, as it was an instrumentality for the commission of
espionage. This is so even though Schoenenberger was not only not
looking for items connected with espionage, but could not properly
have been searching for the purpose of finding such items. When an
article subject to lawful seizure properly comes into an officer's
possession in the course of a lawful search it would be entirely
without reason to say that he must return it because it was not one
of the things it was his business to look for.
See Harris,
supra, 331 U.S. at
331 U. S.
154-155.
Items (3), (4), and (5), a birth certificate for "Emil Goldfus"
who died in 1903, a certificate of vaccination for "Martin
Collins," and a bank book for "Emil Goldfus"
Page 362 U. S. 239
were seized not in petitioner's hotel room, but in a more
careful search at INS headquarters of the belongings petitioner
chose to take with him when arrested. This search was a proper one.
The property taken by petitioner to INS headquarters was all
property which, under
Harris, was subject to search at the
place of arrest. We do not think it significantly different, when
the accused decides to take the property with him, for the search
of it to occur instead at the first place of detention when the
accused arrives there, especially as the search of property carried
by an accused to the place of detention has additional
justifications, similar to those which justify a search of the
person of one who is arrested. It is to be noted that this is not a
case, like
Kremen v. United States, 353 U.
S. 346, where the entire contents of the place where the
arrest was made were seized. Such a mass seizure is illegal. The
Government here did not seize the contents of petitioner's hotel
room. Petitioner took with him only what he wished. He chose to
leave some things behind in his room, which he voluntarily
relinquished. And items (3), (4), and (5) were articles subject to
seizure when found during a lawful search. They were all capable of
being used to establish and maintain a false identity for
petitioner, just as the forged "Martin Collins" birth certificate,
and were seizable for the same reasons.
Items (1)-(5) having come into the Government's possession
through lawful searches and seizures connected with an arrest
pending deportation, was the Government free to use them as
evidence in a criminal prosecution to which they related? We hold
that it was. Good reason must be shown for prohibiting the
Government from using relevant, otherwise admissible, evidence.
There is excellent reason for disallowing its use in the case of
evidence, though relevant, which is seized by the Government in
violation of the Fourth Amendment to the Constitution.
"If letters and private documents can thus
Page 362 U. S. 240
be seized and held and used in evidence against a citizen
accused of an offense, the protection of the 4th Amendment,
declaring his right to be secure against such searches and
seizures, is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution."
Weeks v. United States, 232 U.
S. 383,
232 U. S.
393.
These considerations are here absent, since items (1)-(5) were
seized as a consequence of wholly lawful conduct. That being so, we
can see no rational basis for excluding these relevant items from
trial: no wrongdoing police officer would thereby be indirectly
condemned, for there were no such wrongdoers; the Fourth Amendment
would not thereby be enforced, for no illegal search or seizure was
made; the Court would be lending its aid to no lawless government
action, for none occurred. Of course, cooperation between the
branch of the Department of Justice dealing with criminal law
enforcement and the branch dealing with the immigration laws would
be less effective if evidence lawfully seized by the one could not
be used by the other. Only to the extent that it would be to the
public interest to deter and prevent such cooperation would an
exclusionary rule in a case like the present be desirable. Surely
no consideration of civil liberties commends discouragement of such
cooperation between these two branches when undertaken in good
faith. When undertaken in bad faith to avoid constitutional
restraints upon criminal law enforcement the evidence must be
suppressed. That is not, as we have seen, this case. Individual
cases of bad faith cooperation should be dealt with by findings to
that effect in the cases as they arise, not by an exclusionary rule
preventing effective cooperation when undertaken in entirely good
faith.
We have left to the last the admissibility of items (6) and (7),
the hollowed-out pencil and the block of wood containing a "cipher
pad," because their admissibility is founded upon an entirely
different set of considerations.
Page 362 U. S. 241
These two items were found by an agent of the FBI in the course
of a search he undertook of petitioner's hotel room, immediately
after petitioner had paid his bill and vacated the room. They were
found in the room's wastepaper basket, where petitioner had put
them while packing his belongings and preparing to leave. No
pretense is made that this search by the FBI was for any purpose
other than to gather evidence of crime, that is, evidence of
petitioner's espionage. As such, however, it was entirely lawful,
although undertaken without a warrant. This is so for the reason
that, at the time of the search, petitioner had vacated the room.
The hotel then had the exclusive right to its possession, and the
hotel management freely gave its consent that the search be made.
Nor was it unlawful to seize the entire contents of the wastepaper
basket, even though some of its contents had no connection with
crime. So far as the record shows, petitioner had abandoned these
articles. He had thrown them away. So far as he was concerned, they
were
bona vacantia. There can be nothing unlawful in the
Government's appropriation of such abandoned property.
See
Hester v. United States, 265 U. S. 57,
265 U. S. 58.
The two items which were eventually introduced in evidence were
assertedly means for the commission of espionage, and were
themselves seizable as such. These two items having been lawfully
seized by the Government in connection with an investigation of
crime, we encounter no basis for discussing further their
admissibility as evidence.
Affirmed.
*
"1. Whether, under the laws and Constitution of the United
States (a) the administrative warrant of the New York Acting
District Director of the Immigration and Naturalization Service was
validly issued, (b) such administrative warrant constituted a valid
basis for arresting petitioner or taking him into custody, and (c)
such warrant furnished a valid basis for the searches and seizures
affecting his person, luggage, and the room occupied by him at the
Hotel Latham."
"2. Whether, independently of such administrative warrant,
petitioner's arrest, and the searches and seizures affecting his
person, luggage, and the room occupied by him at the Hotel Latham,
were valid under the laws and Constitution of the United
States."
"3. Whether on the record before us the issues involved in
Questions '1(a),' '1(b),' and '2' are properly before the
Court."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.
Cases of notorious criminals -- like cases of small, miserable
ones -- are apt to make bad law. When guilt permeates a record,
even judges sometimes relax and let the police take shortcuts not
sanctioned by constitutional
Page 362 U. S. 242
procedures. That practice, in certain periods of our history and
in certain courts, has lowered our standards of law administration.
The harm in the given case may seem excusable. But the practices
generated by the precedent have far-reaching consequences that are
harmful and injurious beyond measurement. The present decision is
an excellent example.
The opening wedge that broadened the power of administrative
officers -- as distinguished from police -- to enter and search
peoples' homes was
Frank v. Maryland, 359 U.
S. 360. That case allowed a health inspector to enter a
home without a warrant, even though he had ample time to get one.
The officials of the Immigration and Naturalization Service (INS)
are now added to the preferred list. They are preferred because
their duties, being strictly administrative, put them in a separate
category from those who enforce the criminal law. They need not go
to magistrates, the Court says, for warrants of arrest. Their
warrants are issued within the hierarchy of the agency itself.
[
Footnote 1] Yet, as I
attempted to show in my dissent in the
Frank case, the
Fourth Amendment, in origin, had to do as much with ferreting out
heretics and collecting taxes as with enforcement of the criminal
laws. 359 U.S. at
359 U. S.
376-379.
Moreover, the administrative officer who invades the privacy of
the home may be only a front for the police, who are thus saved the
nuisance of getting a warrant. We need not go far to find examples.
In
Maryland v. Pettiford, Sup.Bench Balt.City, The Daily
Record, Dec. 16, 1959, the police used the mask of a health
inspector
Page 362 U. S. 243
to make the
Frank case serve as an easy way to get a
search without a warrant. Happily, they were rebuked. [
Footnote 2] But that case shows the
kind of problems the
Frank doctrine generates. The present
case is another example of the same kind, although here the police
are not rebuked. The administrative official with an administrative
warrant, over which no judicial official exercises any supervision
and which, by statute, may be used only for deportation, performs a
new role. The police wear his mask to do police work. That, in my
view, may not be done, even though we assume that the
administrative warrant
Page 362 U. S. 244
issued by an administrative, rather than a judicial, officer is
valid for an arrest for the purpose of deportation. We take
liberties with an Act of Congress, as well as the Constitution,
when we permit this to be done. The statute permits the arrest of
an alien on an administrative warrant "[p]ending a determination of
deportability." [
Footnote 3]
The Court now reads the Act as if it read "[p]ending an
investigation of criminal conduct." Such was the nature of the
arrest.
With due deference to the two lower courts, I think the record
plainly shows that FBI agents were the moving force behind this
arrest and search. For at least a month, they investigated the
espionage activities of petitioner. They were tipped off concerning
this man and his role in May; the arrest and search were made on
June 21. The FBI had plenty of time to get a search warrant, as
much if not more time than they had in
Johnson v. United
States, 333 U. S. 10, and
Kremen v. United States, 353 U. S. 346,
where the Court held warrantless searches illegal. But the FBI did
not go to a magistrate for a search warrant. They went instead to
the INS and briefed the officials of that agency on what they had
discovered. On the basis of this data, a report was made to John
Murff, Acting District Director of the INS, who issued the warrant
of arrest.
No effort was made by the FBI to obtain a search warrant from
any judicial officer, though, as I said, there was plenty of time
for such an application. The administrative warrant of arrest was
chosen with care and calculation as the vehicle through which the
arrest and search were to be made. The FBI had an agreement with
the officials of INS that this warrant of arrest would not be
served at least until petitioner refused to
Page 362 U. S. 245
"cooperate." The FBI agents went with agents of the INS to
apprehend petitioner in his hotel room. Again, it was the FBI
agents who were first. They were the ones who entered petitioner's
room and who interrogated him to see if he would "cooperate"; and
when they were unable to get him to "cooperate" by threatening him
with arrest, they signaled agents of the INS who had waited outside
to come in and make the arrest. The search was made both by the FBI
agents and by officers of the INS. And, when petitioner was flown
1,000 miles to a special detention camp and held for three weeks,
the agents of the FBI as well as INS interrogated him. [
Footnote 4]
Thus, the FBI used an administrative warrant to make an arrest
for criminal investigation both in violation of § 242(a) of the
Immigration and Nationality Act [
Footnote 5] and in violation of the Bill of Rights.
The issue is not whether these FBI agents acted in bad faith. Of
course, they did not. The question is how far zeal may be permitted
to carry officials bent on law enforcement. As Mr. Justice Brandeis
once said, "Experience should teach us to be most on our guard to
protect liberty when the government's purposes are beneficent."
Olmstead v. United States, 277 U.
S. 438,
277 U. S. 479
(dissenting opinion). The facts seem to me clearly to establish
that the FBI agents wore the mask of INS to do what otherwise they
could not have done. They did what they could do only if they had
gone to a judicial officer pursuant to the requirements of the
Fourth Amendment, disclosed
Page 362 U. S. 246
their evidence, and obtained the necessary warrant for the
searches which they made.
If the FBI agents had gone to a magistrate, any search warrant
issued would by terms of the Fourth Amendment have to
"particularly" describe "the place to be searched" and the "things
to be seized." How much more convenient it is for the police to
find a way around those specific requirements of the Fourth
Amendment! What a hindrance it is to work laboriously through
constitutional procedures! How much easier to go to another
official in the same department! The administrative officer can
give a warrant good for unlimited search. No more showing of
probable cause to a magistrate! No more limitations on what may be
searched and when!
In
Rea v. United States, 350 U.
S. 214, federal police officers, who obtained evidence
in violation of federal law governing searches and seizures and so
lost their case in the federal court, repaired to a state court and
proposed to use it there in a state criminal prosecution. The Court
held that the Federal District Court could properly enjoin the
federal official from using the illegal search and seizure as basis
for testifying in the state court. The federal rules governing
searches and seizures, we held, are "designed as standards for
federal agents" no more to be defeated by devious than by direct
methods. The present case is even more palpably vulnerable. No
state agency is involved. Federal police seek to do what
immigration officials can do to deport a person, but what our
rules, statutes, and Constitution forbid the police from doing to
prosecute him for a crime.
The tragedy in our approval of these shortcuts is that the
protection afforded by the Fourth Amendment is removed from an
important segment of our life. We today forget what the Court said
in
Johnson v. United States, supra, at
333 U. S. 14,
that the Fourth Amendment provision
Page 362 U. S. 247
for "probable cause" requires that those inferences "be drawn by
a neutral and detached magistrate," not "by the officer engaged in
the often competitive enterprise of ferreting out crime." This is a
protection given not only to citizens, but to aliens as well, as
the opinion of the Court by implication holds. The right "of the
people" covered by the Fourth Amendment certainly gives security to
aliens in the same degree that "person" in the Fifth and "the
accused" in the Sixth Amendments also protects them.
See Wong
Wing v. United States, 163 U. S. 228,
163 U. S. 242.
Here, the FBI works exclusively through an administrative agency --
the INS -- to accomplish what the Fourth Amendment says can be done
only by a judicial officer. A procedure designed to serve
administrative ends -- deportation -- is cleverly adapted to serve
other ends -- criminal prosecution. We have had like examples of
this same trend in recent times. Lifting the requirements of the
Fourth Amendment for the benefit of health inspectors was
accomplished by
Frank v. Maryland, as I have said.
Allowing the Department of Justice, rather than judicial officers,
to determine whether aliens will be entitled to release on bail
pending deportation hearings is another.
See Carlson v.
Landon, 342 U. S. 524.
Some things in our protective scheme of civil rights are
entrusted to the judiciary. Those controls are not always congenial
to the police. Yet, if we are to preserve our system of checks and
balances and keep the police from being all-powerful, these
judicial controls should be meticulously respected. When we read
them out of the Bill of Rights by allowing shortcuts, as we do
today and as the Court did in the
Frank and
Carlson cases, police and administrative officials in the
Executive Branch acquire powers incompatible with the Bill of
Rights.
The FBI agents stalked petitioner for weeks, and had plenty of
time to obtain judicial warrants for searching the
Page 362 U. S. 248
premises he occupied. I would require them to adhere to the
command of the Fourth Amendment, and not evade it by the simple
device of wearing the masks of immigration officials while in fact
they are preparing a case for criminal prosecution.
[
Footnote 1]
Section 242(a) of the Immigration and Nationality Act of 1952,
66 Stat. 208, 8 U.S.C. § 1252(a), provides,
"Pending a determination of deportability in the case of any
alien . . . such alien may, upon warrant of the Attorney General,
be arrested and taken into custody."
[
Footnote 2]
In the
Pettiford case, it appears that a police officer
assigned to the Sanitation Division gained entrance into a home
without a warrant and discovered that the defendant who occupied
the premises was engaged in lottery activities. He then signaled to
a policeman in charge of gambling activities who was waiting
outside in accordance with a prior agreement. Lottery slips were
seized, and, over the defendant's objection, were received in
evidence in a criminal trial. A motion for a new trial was granted.
The Supreme Bench of Baltimore City said in its opinion:
"Section 120 of Article 12 of the Baltimore City Code provides
that, if the Commissioner of Health has cause to suspect that a
nuisance exists in any home, he may demand entry therein in the
daytime and the owner or occupier is subject to a fine if entry is
denied. A conviction under this Section by the Criminal Court of
Baltimore City was sustained by the Supreme Court of the United
States in a five to four decision.
Frank v. Maryland,
[
359 U.S.
360]. . . ."
"In this case, it is evident that a principal, if not the chief,
purpose of the entry of the police officer assigned to the
sanitation division was to endeavor to secure evidence of a lottery
violation for his colleague. 'The security of one's privacy against
arbitrary intrusion by the police . . . is basic to a free
society.'
Wolf v. Colorado, 338 U. S.
25,
338 U. S. 27. An exception to
that security, upheld because indispensable for the maintenance of
the community health, is not to be used to cover searches without
warrants inconsistent with the conceptions of human rights
[embodied] in our State and Federal Constitutions."
[
Footnote 3]
Note
1 supra.
[
Footnote 4]
Immigration officials (who often claim that their actions have
an administrative finality beyond the reach of courts,
see
Ludecke v. Watkins, 335 U. S. 160;
Jay v. Boyd, 351 U. S. 345)
have no authority to detain suspects for secret interrogation.
See United States v. Minker, 350 U.
S. 179.
[
Footnote 5]
Note 1 supra.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE DOUGLAS join, dissenting.
This is a notorious case, with a notorious defendant. Yet we
must take care to enforce the Constitution without regard to the
nature of the crime or the nature of the criminal. The Fourth
Amendment protects "The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches
and seizures." This right is a basic one of all the people, without
exception; and this Court ruled in
Weeks v. United States,
232 U. S. 383,
that the fruits of governmental violation of this guarantee could
not be used in a criminal prosecution. The Amendment's protection
is thus made effective for everyone only by upholding it when
invoked by the worst of men.
The opinion of the Court makes it plain that the seizure of
certain of the items of petitioner taken from his room at the Hotel
Latham and used in evidence against him must depend upon the
existence of a broad power, without a warrant, to search the
premises of one arrested, in connection with and "incidental" to
his arrest. This power is of the sort recognized by
Harris v.
United States, 331 U. S. 145, and
later asserted even where the arresting officers, as here, had
ample time and opportunity to secure a search warrant.
United
States v. Rabinowitz, 339 U. S. 56,
overruling Trupiano v. United States,
334 U.
S. 699. The leading early cases do not recognize any
such power to make a search generally through premises attendant
upon an arrest.
See Go-Bart Importing Co.
v.
Page 362 U. S. 249
United States, 282 U. S. 344;
United States v. Lefkowitz, 285 U.
S. 452. [
Footnote
2/1]
The general question has been extensively canvassed here, in the
general context of an arrest for crime, in the
Harris,
Trupiano, and
Rabinowitz cases. Whether
Harris and
Rabinowitz should now be followed on
their own facts is a question with which the Court is not now
faced. Rather, the question is whether the doctrine of those cases
should be extended to a new and different set of facts -- facts
which present a search made under circumstances much less
consistent with the Fourth Amendment's prohibition against
unreasonable searches than any which this Court has hitherto
approved. Factual differences weigh heavily in this area: "There is
no formula for the determination of reasonableness. Each case is to
be decided on its own facts and circumstances."
Go-Bart
Importing Co. v. United States, supra, at
282 U. S. 357.
In
Harris and
Rabinowitz, the broad search was
performed as an incident to an arrest for crime under warrants
lawfully issued. 331 U.S. at
331 U. S. 148;
339 U.S. at
339 U. S. 58.
The issuance of these warrants is by no means automatic -- it is
controlled by a constitutionally prescribed standard. It thus could
be held that sufficient protection was given the individual without
the execution of a second warrant for the search.
Cf.
Clark, J., dissenting in
United States v. Rabinowitz, 176
F.2d 732, 736,
reversed, 339 U. S. 339 U.S.
56. And while a search generally through premises "incident" to an
arrest for crime without a warrant has been sanctioned only
inferentially here, [
Footnote 2/2]
even if such a search be deemed permissible under the Fourth
Amendment, it would not go so far as the result here. Such an
arrest may
Page 362 U. S. 250
constitutionally be made only upon probable cause, the existence
of which is subject to judicial examination,
see Henry v.
United States, 361 U. S. 98,
361 U. S. 100,
and such an arrest demands the prompt bringing of the person
arrested before a judicial officer, where the existence of probable
cause is to be inquired into. Fed.Rules Crim.Proc., 5(a) and (c).
This Court has been astute to fashion methods of ensuring the due
observance of these safeguards.
Henry v. United States, supra;
Mallory v. United States, 354 U. S. 449;
McNabb v. United States, 318 U. S. 332.
Even assuming that the power of Congress over aliens may be as
great as was said in
Galvan v. Press, 347 U.
S. 522, and that deportation may be styled "civil,"
Harisiades v. Shaughnessy, 342 U.
S. 580,
342 U. S. 594,
it does not follow that Congress may strip aliens of the
protections of the Fourth Amendment and authorize unreasonable
searches of their premises, books and papers. Even if Congress
could make the exclusionary sanction of the Amendment inapplicable
in deportation proceedings, the fruits of the search here were used
in a prosecution whose criminal character no dialectic can conceal.
Clearly the consequence of the Fourth Amendment in such a trial is
that the fruits of such a search may not be given in evidence,
under the rule declared in
Weeks v. United States, supra.
We need not, in my view, inquire as to whether the sort of
"administrative" arrest made here is constitutionally valid as to
permit the officers to hold petitioner's person for deportation
proceedings. With the Court, this issue may be treated as not
properly before us for our consideration, and the arrest may be
treated for the purposes of this case as lawful in itself. But even
with
Harris and
Rabinowitz, that does not
conclude the matter as to the search. It is patent that the sort of
search permitted by those cases, and necessary to sustain the
seizures here, goes beyond what is reasonably related
Page 362 U. S. 251
to the mechanics of the arrest itself -- ensuring the safety of
the arresting officers and the security of the arrest against the
prisoner's escape. Since it does, I think it plain that, before it
can be concluded here that the search was not an unreasonable one,
there must be some inquiry into the over-all protection given the
individual by the totality of the processes necessary to the arrest
and the seizure. Here, the arrest, while had on what is called a
warrant, was made totally without the intervention of an
independent magistrate; it was made on the authorization of one
administrative official to another. And, after the petitioner was
taken into custody, there was no obligation upon the administrative
officials who arrested him to take him before any independent
officer, sitting under the conditions of publicity that
characterize our judicial institutions, and justify what had been
done. [
Footnote 2/3] Concretely,
what happened instead was this: petitioner, upon his arrest, was
taken to a local administrative headquarters and then flown in a
special aircraft to a special detention camp over 1,000 miles away.
He was incarcerated in solitary confinement there. As far as the
world knew, he had vanished. He was questioned daily at the place
of incarceration for over three weeks. An executive procedure as to
his deportability was had at the camp after a few days, but there
was never any independent inquiry or judicial control over the
circumstances of the arrest and the seizure till over five weeks
after his arrest, when, at the detention camp, he was served with a
bench warrant for his arrest on criminal charges, upon an
indictment.
The Fourth Amendment imposes substantive standards for searches
and seizures, but, with them, one of the important safeguards it
establishes is a procedure; and
Page 362 U. S. 252
central to this procedure is an independent control over the
actions of officers effecting searches of private premises.
"Indeed, the informed and deliberate determinations of
magistrates empowered to issue warrants as to what searches and
seizures are permissible under the Constitution are to be preferred
over the hurried action of officers and others who may happen to
make arrests."
United State v. Lefkowitz, supra, at
285 U. S. 464.
"Absent some grave emergency, the Fourth Amendment has interposed a
magistrate between the citizen and the police."
McDonald v.
United States, 335 U. S. 451,
335 U. S. 455.
It is one thing to say that an adequate substitute for this sort of
intervention by a magistrate can be found in the strict protections
with which federal criminal procedure surrounds the making of a
criminal arrest -- where the action of the officers must receive an
antecedent or immediately subsequent independent scrutiny. It goes
much further to say that such a substitute can be found in the
executive processes employed here. The question is not whether they
are constitutionally adequate in their own terms -- whether they
are a proper means of taking into custody one not charged with
crime. The question is, rather, whether they furnish a context in
which a search generally through premises can be said to be a
reasonable one under the Fourth Amendment. These arrest procedures,
as exemplified here, differ as night from day from the processes of
an arrest for crime. When the power to make a broad, warrantless
search is added to them, we create a complete concentration of
power in executive officers over the person and effects of the
individual. We completely remove any independent control over the
powers of executive officers to make searches. They may take any
man they think to be a deportable alien into their own custody,
hold him without arraignment or bond, and, having been careful to
apprehend him at home, make a search generally through his
premises. I cannot see
Page 362 U. S. 253
how this can be said to be consistent with the Fourth
Amendment's command; it was, rather, against such a concentration
of executive power over the privacy of the individual that the
Fourth Amendment was raised. I do not think the
Harris and
Rabinowitz cases have taken us to this point.
If the search here were of the sort the Fourth Amendment
contemplated, there would be no need for the elaborate, if somewhat
pointless, inquiry the Court makes into the "good faith" of the
arrest. Once it is established that a simple executive arrest of
one as a deportable alien gives the arresting offices the power to
search his premises, what precise state of mind on the part of the
officers will make the arrest a "subterfuge" for the start of
criminal proceedings, and render the search unreasonable? We are
not, I fear, given any workable answer, and, of course, the
practical problems relative to the trial of such a matter hardly
need elaboration; but the Court verbalizes the issue as
"whether the decision to proceed administratively toward
deportation was influenced by, and was carried out for, a purpose
of amassing evidence in the prosecution for crime."
But, under today's ruling, every administrative arrest offers
this possibility of a facile search, theoretically for things
connected with unlawful presence in the country, that may turn up
evidence of crime; and this possibility will be well known to
arresting officers. Perhaps the question is how much basis the
officers had to suspect the person of crime; but it would appear a
strange test as to whether a search which turns up criminal
evidence is unreasonable, that the search is the more justifiable
the less there was antecedent probable cause to suspect the
defendant of crime. If the search were made on a valid warrant,
there would be no such issue even if it turned up matter relevant
to another crime.
See Gouled v. United States,
255 U. S. 298,
255 U. S.
311-312. External procedural control in accord with
the
Page 362 U. S. 254
basic demands of the Fourth Amendment removes the grounds for
abuse; but the Court's attitude here must be based on a recognition
of the great possibilities of abuse its decision leaves in the
present situation. These possibilities have been recognized before,
in a case posing less danger:
"Arrest under a warrant for a minor or a trumped-up charge has
been familiar practice in the past, is a commonplace in the police
state of today, and too well known in this country. . . . The
progress is too easy from police action unscrutinized by judicial
authorization to the police state."
United States v. Rabinowitz, supra, at
339 U. S. 82
(dissenting opinion). Where a species of arrest is available that
is subject to no judicial control, the possibilities become more
and more serious. The remedy is not to invite fruitless litigation
into the purity of official motives, or the specific direction of
official purposes. One may always assume that the officers are
zealous to perform their duty. The remedy is, rather, to recognize
that the power to perform a search generally throughout premises
upon a purely executive arrest is so unconfined by any safeguards
that it cannot be countenanced as consistent with the Fourth
Amendment.
One more word. We are told that the governmental power to make a
warrantless search might be greater where the object of the search
is not related to crime, but to some other "civil" proceeding --
such as matter bearing on the issue whether a man should forcibly
be sent from the country. The distinction is rather hollow here,
where the proofs that turn up are in fact given in evidence in a
criminal prosecution. And the distinction, again, invites a trial
of the officers' purposes. But, in any event, I think it perverts
the Amendment to make this distinction. The Amendment states its
own purpose, the protection of the privacy of the individual and of
his property against the incursions of officials: the "right of the
people to be secure in their persons, houses, papers, and effects."
See
Page 362 U. S. 255
Boyd v. United States, 116 U.
S. 616,
116 U. S. 627.
Like most of the Bill of Rights, it was not designed to be a
shelter for criminals, but a basic protection for everyone; to be
sure, it must be upheld when asserted by criminals, in order that
it may be at all effective, but it "reaches all alike, whether
accused of crime or not."
Weeks v. United States, supra,
at
232 U. S. 392.
It is the individual's interest in privacy which the Amendment
protects, and that would not appear to fluctuate with the "intent"
of the invading officers. It is true that the greatest and most
effective preventive against unlawful searches that has been
devised is the exclusion of their fruits from criminal evidence,
see Weeks v. United States, supra; Boyd v. United States,
supra; but it is strange reasoning to infer from this that the
central thrust of the guarantee is to protect against a search for
such evidence. The argument that it is seems no more convincing to
me now than when it was made by the Court in
Frank v.
Maryland, 359 U. S. 360. To
be sure, the Court in
Boyd v. United States, supra, and in
subsequent cases [
Footnote 2/4] has
commented upon the intimate relationship between the privilege
against unlawful searches and seizures and that against
self-incrimination. This has been said to be erroneous history;
[
Footnote 2/5] if it was, it was
even less than a harmless error; it was part of the process through
which the Fourth Amendment, by means of the exclusionary rule, has
become more than a dead letter in the federal courts. Certainly
this putative relationship between the guarantees is not to be used
as a
Page 362 U. S. 256
basis of a stinting construction of either -- it was the
Boyd case itself [
Footnote
2/6] which set what might have been hoped to be the spirit of
later construction of these Amendments by declaring that the start
of abuse can "only be obviated by adhering to the rule that
constitutional provisions for the security of person and property
should be liberally construed." 116 U.S. at
116 U. S.
635.
Since evidence was introduced against petitioner which had been
obtained in violation of his constitutional guarantees as embodied
in the Fourth Amendment, I would reverse his conviction for a new
trial on the evidence not subject to this objection.
[
Footnote 2/1]
Earlier expressions looking the other way,
Agnello v. United
States, 269 U. S. 20,
269 U. S. 30;
Marron v. United States, 275 U. S. 192,
275 U. S.
198-199, were put in proper perspective by their author
in
Go-Bart and
Lefkowitz. See 282 U.S.
at
282 U. S. 358;
285 U.S. at
285 U. S.
465.
[
Footnote 2/2]
See United States v. Rabinowitz, supra, at
339 U. S.
60.
[
Footnote 2/3]
This procedure is statutorily based on § 242(a) of the
Immigration and Nationality Act of 1952, 66 Stat. 208, 8 U.S.C. §
1252(a).
[
Footnote 2/4]
See, e.g., Gouled v. United States, supra, at
255 U. S. 306;
United States v. Lefkowitz, supra, at
285 U. S.
466-467. The
Weeks case itself, though drawing
great support from
Boyd, appears to rest most heavily on
the Fourth Amendment itself.
[
Footnote 2/5]
The famous attack on the
Boyd case's historical basis
is, of course, to be found in 8 Wigmore, Evidence (3d ed. 1940), §§
2184, 2264. The attack is incident to Wigmore's strictures on the
exclusionary rule.
Id., §§ 2183-2184.
[
Footnote 2/6]
It is not without interest to note, too, that the
Boyd
case itself involved a search not in connection with a prosecution
to impose fine or imprisonment, but simply with an action to
forfeit 35 cases of plate glass said to have been imported into the
country under a false customs declaration.