Petitioner waived trial by jury and was convicted in a
Connecticut State Court of willfully injuring a public building by
painting swastikas on a synagogue. At his trial, a can of paint and
a paint brush were admitted in evidence over his objection. On
appeal, the Supreme Court of Errors held that the paint and brush
had been obtained by means of an illegal search and seizure, and
that, therefore, the trial court erred in admitting them in
evidence, but that their admission was a harmless error, and it
affirmed the conviction.
Held: On the record in this case, the erroneous
admission of this illegally obtained evidence was prejudicial to
petitioner; it cannot be called harmless error; and the conviction
is reversed. Pp.
375 U. S.
85-92.
149 Conn. 577, 183 A.2d 256, reversed.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioner waived trial by jury and was convicted in a
Connecticut state court of willfully injuring a public building in
violation of Connecticut General Statutes § 53-45(a). Specifically,
petitioner and his codefendant Arnold [
Footnote 1] were found guilty of having painted
swastikas
Page 375 U. S. 86
on a Norwalk, Connecticut, synagogue. The trial took place
before our decision in
Mapp v. Ohio, 367 U.
S. 643, but the conviction was affirmed on appeal after
that decision.
Connecticut v. Fahy, 149 Conn. 577, 183
A.2d 256 (1962). At the trial of the case, a can of black paint and
a paint brush were admitted into evidence over petitioner's
objection. On appeal, the Connecticut Supreme Court of Errors held
that the paint and brush had been obtained by means of an illegal
search and seizure. It further held that the
Mapp decision
applies to cases pending on appeal in Connecticut courts at the
time that decision was rendered, and, therefore, the trial court
erred in admitting the paint and brush into evidence. However, the
court affirmed petitioner's conviction because it found the
admission of the unconstitutionally obtained evidence to have been
harmless error. [
Footnote 2] We
granted certiorari, 372 U.S. 928 (1963).
On the facts of this case, it is not now necessary for us to
decide whether the erroneous admission of evidence obtained by an
illegal search and seizure can ever be subject to the normal rules
of "harmless error" under the federal standard of what constitutes
harmless error.
Compare Ker v. California, 374 U. S.
23. We find that the erroneous admission of this
unconstitutionally obtained evidence at this petitioner's trial was
prejudicial; therefore, the error was not harmless, and the
conviction must be reversed. We are not concerned here with whether
there was sufficient evidence on which the petitioner could have
been convicted without the evidence complained of. The question is
whether there is a reasonable possibility that the evidence
complained of might have contributed
Page 375 U. S. 87
to the conviction. To decide this question, it is necessary to
review the facts of the case and the evidence adduced at trial.
On February 1, 1960, between the hours of 4 and 5 a.m.,
swastikas were painted with black paint on the steps and walls of a
Norwalk synagogue. At about 4:40 a.m., Officer Lindwall of the
Norwalk police saw an automobile being operated without lights
about a block from the synagogue. Upon stopping the car, Lindwall
found that Fahy was driving and Arnold was a passenger. Lindwall
questioned Fahy and Arnold about their reason for being out at that
hour, and they told him they had been to a diner for coffee and
were going home. Lindwall also checked the car and found a can of
black paint and a paint brush under the front seat. Having no
reason to do otherwise, Lindwall released Fahy and Arnold. He
followed the car to Fahy's home. Later the same morning, Lindwall
learned of the painting of the swastikas. Thereupon, he went to
Fahy's home and -- without having applied for or obtained an arrest
or search warrant -- entered the garage under the house and removed
from Fahy's car the can of paint and the brush. About two hours
later, Lindwall returned to the Fahy home, this time in the company
of two other Norwalk policemen. Pursuant to a valid arrest warrant,
the officers arrested Fahy and Arnold.
At trial, the court admitted the paint and brush into evidence
over petitioner's objection. We assume, as did the Connecticut
Supreme Court of Errors, that doing so was error because this
evidence was obtained by an illegal search and seizure, and was
thus inadmissible under the rule of
Mapp v. Ohio.
Examining the effect of this evidence upon the other evidence
adduced at trial and upon the conduct of the defense, we find
inescapable the conclusion that the trial court's error was
prejudicial, and cannot be called harmless.
Page 375 U. S. 88
Obviously, the tangible evidence of the paint and brush was
itself incriminating. In addition, it was used to corroborate the
testimony of Officer Lindwall as to the presence of petitioner near
the scene of the crime at about the time it was committed and as to
the presence of a can of paint and a brush in petitioner's car at
that time. When Officer Lindwall testified at trial concerning that
incident, the following transpired:
"Q. Will you tell the court what you found in the car?"
"
* * * *"
"A. Checking on the passengers' side, under the front seat I
found a small jar of paint and a paint brush."
"Q. Are you able to identify this object I show you?"
"A. Yes."
"Q. What is it?"
"A. A jar of paint I found in the motor vehicle."
"
* * * *"
"Q. I show you this object and ask you if you can identify
that."
"A. Yes, sir."
"Q. What is it?"
"A. A paint brush."
"Q. Where did you first see this paint brush?"
"A. Under the front seat of Mr. Fahy's car."
The brush and paint were offered in evidence, and were received
over petitioner's objection. The trial court found:
"13. The police found the same can of black paint and the brush
in the car which the defendants had been operating when stopped by
Officer Lindwall earlier in the morning."
It can be inferred from this that the admission of the illegally
seized evidence made Lindwall's testimony
Page 375 U. S. 89
far more damaging than it would otherwise have been.
In addition, the illegally obtained evidence was used as the
basis of opinion testimony to the effect that the paint and brush
matched the markings on the synagogue, thus forging another link
between the accused and the crime charged. At trial, Norwalk Police
Officer Tigano testified that he had examined the markings on the
synagogue and had determined that they were put on with black
paint. He further testified that he had examined the contents of
the can illegally seized from Fahy's car, and had determined that
it contained black paint. Even more damaging was Tigano's testimony
that he had taken the illegally seized brush to the synagogue "to
measure the width of the brush with the width of the paintings of
the swastikas." Over objection, Tigano then testified that the
brush "fitted the same as the paint brush in some drawings of the
lines, and some it did not, due to the fact the paint dripped."
Thus, the trial court found:
"14. The two-inch paint brush matched the markings made with
black paint upon the synagogue."
In relation to this testimony, the prejudicial effect of
admitting the illegally obtained evidence is obvious.
Other incriminating evidence admitted at trial concerned
admissions petitioner made when he was arrested and a full
confession made at the police station later. Testifying at trial,
Norwalk Police Lieutenant Virgulak recounted what took place when
Fahy, who was just waking up at the time, was arrested:
"I told him I [sic, he] was under arrest for painting swastikas
on the synagogue. He said, 'Oh, that?', and he appeared to lay back
in bed."
"
* * * *"
"Q. Did you have any further conversation with Fahy before you
reached the police station that you remember? "
Page 375 U. S. 90
"A. I asked him what the reason was for painting the swastikas,
and he said it was only a prank, and I asked him why, and he said
for kicks."
At the police station, there was further questioning, and Fahy
told Lieutenant Virgulak that he, Fahy, would take the
responsibility for painting the swastikas. In addition, some hours
after the arrest, Arnold was asked to give a statement of the
events, and he complied, dictating a complete confession of two
typewritten pages. After this confession was admitted against
Arnold at trial, Lieutenant Virgulak testified that he had read the
confession to Fahy and:
"Q. After you finished reading it, will you tell us whether or
not he [Fahy] made any comment?"
"A. I asked him what his version was, and he said the story was
as I had it from Mr. Arnold. I asked him if he would like to give a
written statement, and he declined."
The record does not show whether Fahy knew that the police had
seized the paint and brush before he made his admissions at the
time of arrest and en route to the police station. In oral
argument, however, counsel for the State told the Court that Fahy
"probably" had been told of the search and seizure by then. Of
course, the full confession was more damaging to the defendants,
and unquestionably the defendants knew the police had obtained the
paint and brush by the time they confessed. But the defendants were
not allowed to pursue the illegal search and seizure inquiry at
trial, because, at the time of trial, the exclusionary rule was not
applied in Connecticut state courts. Thus, petitioner was unable to
claim at trial that the illegally seized evidence induced his
admissions and confession. Petitioner has told the Court that he
would so claim were he allowed to challenge the search and seizure
as illegal at a new trial. And we think that such
Page 375 U. S. 91
a line of inquiry is permissible. As the Court has noted in the
past:
"The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so acquired
shall not be used before the Court, but that it shall not be used
at all."
See Silverthorne Lumber Co. v. United States,
251 U. S. 385,
251 U. S. 392;
see also Nardone v. United States, 308 U.
S. 338;
Wong Sun v. United States, 371 U.
S. 471. Thus, petitioner should have had a chance to
show that his admissions were induced by being confronted with the
illegally seized evidence.
Nor can we ignore the cumulative prejudicial effect of this
evidence upon the conduct of the defense at trial. It was only
after admission of the paint and brush and only after their
subsequent use to corroborate other state's evidence and only after
introduction of the confession that the defendants took the stand,
admitted their acts, and tried to establish that the nature of
those acts was not within the scope of the felony statute under
which the defendants had been charged. [
Footnote 3] We do not mean to suggest that petitioner has
presented any valid claim based on the privilege against
self-incrimination. We merely note this course of events as another
indication of the prejudicial effect of the erroneously admitted
evidence.
From the foregoing, it clearly appears that the erroneous
admission of this illegally obtained evidence was prejudicial to
petitioner, and hence it cannot be called
Page 375 U. S. 92
harmless error. Therefore, the conviction is reversed, and the
cause is remanded for proceedings not inconsistent with this
opinion.
It is so ordered.
[
Footnote 1]
Arnold was tried and convicted with petitioner Fahy, and their
appeals were heard and decided together. Arnold also filed a
petition for certiorari; however, that petition was dismissed on
Arnold's motion before we granted Fahy's petition.
[
Footnote 2]
Connecticut's statutory harmless error rule states that the
Supreme Court of Errors need not reverse a judgment below if it
finds the errors complained of "have not materially injured the
appellant." Connecticut General Statutes § 52-265 (1958).
[
Footnote 3]
The Connecticut Supreme Court of Errors rejected petitioner's
argument that painting swastikas on a synagogue was "defacement,"
not "injury," to a public building. The statute involved was passed
in 1832, and made it illegal to "injure or deface" a public
building. In 1875, the words "or deface" were omitted, and the
statute remained essentially unchanged thereafter. The Connecticut
Supreme Court of Errors held that "injure" includes defacement, and
thus includes petitioner's acts.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK, MR. JUSTICE STEWART
and MR. JUSTICE WHITE join, dissenting.
The only question in this case which merits consideration by
this Court, and which alone accounts for the case's being here at
all, is that which the majority does not reach: does the Fourteenth
Amendment prevent a State from applying its harmless error rule in
a criminal trial with respect to the erroneous admission of
evidence obtained through an unconstitutional search and seizure?
The majority avoids this issue only by disregarding the finding of
the Connecticut Supreme Court of Errors that the erroneously
admitted evidence was without prejudicial effect on the outcome of
petitioner's trial.
Evidentiary questions of this sort are not a proper part of this
Court's business, particularly in cases coming here from state
courts over which this Court possesses no supervisory power. This
is not the rare instance of a state conviction which rests upon a
record that is devoid of any evidence to support the charge against
the defendant,
see Thompson v. Louisville, 362 U.
S. 199;
Garner v. Louisiana, 368 U.
S. 157. The most that can be said is that the record
leaves the issue of harmless error open to differing conclusions.
That, however, furnishes no ground for this Court's intervention,
even in the name of avoiding the constitutional question which
brought the case here.
Furthermore, taking the Court's opinion on its own bottom, I
feel compelled to say, with due respect, that I am unable to
understand its evaluation of the record.
Page 375 U. S. 93
The opinion below provides the full answer to the petitioner's
claim that the admission into evidence of the can of paint and
paint brush prejudiced him:
". . . The defendants do not claim, nor, as the transcript
shows, could they claim, that the illegal search and seizure
induced their admissions or confessions. Their claim is that,
'[h]ad they been able to preclude the admission of the illegally
seized evidence, [their] confessions would not have been
admissible,' under the rule of
State v. Doucette, 147
Conn. 95, 98, 157 A.2d 487, because there was, apart from the
confessions, insufficient evidence of the
corpus delicti,
that is, that the crime charged had been committed by someone. In
other words, their claim is that the State, in order to prove that
a crime had been committed, had to rely solely on the admission in
evidence of the paint jar and the brush. The answer to that claim
is that there was ample evidence besides the defendants'
confessions and the jar of paint and the brush to prove that
swastikas had been painted on the synagogue between the hours of 4
and 5 o'clock on the morning of February 1, 1960. This was
sufficient to establish that the crime charged had been committed
by someone. The confessions were not inadmissible on the ground
claimed, and no other ground of inadmissibility is advanced."
"The paint jar and the brush, which were exhibits, were, at
most, cumulative. The transcript of the evidence of the State's
case in chief discloses overwhelming evidence of the guilt of the
defendants. They were observed a block from the scene of the crime
at approximately the time when it was committed, riding in an
automobile without lights, and were brought to a stop only after a
police officer had pursued them for upwards of a mile. When the
Page 375 U. S. 94
police later in the morning came with warrants to arrest them,
they admitted their guilt at once and attempted to excuse their
conduct as a 'prank.' Both later freely confessed. . . ."
149 Conn. 577, 587-588, 183 A.2d 256, 261-262. The Court's
discussion of corroborative and cumulative evidence and its effect
on the conduct of the defense is surely beside the point in a case
in which, both before and during trial, it was not disputed that
the petitioner had committed the acts in question, and the only
defense raised was that the acts were not criminal as charged.
[
Footnote 2/1]
This brings me to the question which the Court does not reach:
was it constitutionally permissible for Connecticut to apply its
harmless error rule to save this conviction from the otherwise
vitiating effect of the admission of the unconstitutionally seized
evidence? I see no reason why not. It is obvious that there is no
necessary connection between the fact that evidence was
unconstitutionally seized and the degree of harm caused by its
admission. The question of harmless error turns not on the reasons
for inadmissibility, but on the effect of the evidence in the
context of a particular case. Erroneously admitted "constitutional"
evidence may often be more prejudicial than erroneously admitted
"unconstitutional" evidence. Since the harmless error rule plainly
affords no shield under which prosecutors might use damaging
evidence, unconstitutionally obtained, to secure a conviction,
there is no danger that application of the rule will undermine the
prophylactic function of the rule of inadmissibility.
Page 375 U. S. 95
Cases in which this Court has held that the sufficiency of other
evidence will not validate a conviction if an unconstitutionally
obtained confession is introduced at trial,
e.g., Malinski v.
New York, 324 U. S. 401, are
inapposite. It may well be that a confession is never to be
considered as nonprejudicial. In any event, the standard applied
here required a determination that exclusion of the
unconstitutional evidence could not have changed the outcome of the
trial. That is a much stricter standard than that of independently
sufficient evidence, which leaves open the possibility that the
trier of fact did rely on the unconstitutional evidence and,
therefore, would have reached a different conclusion if the
evidence had been excluded. [
Footnote
2/2]
I would affirm.
[
Footnote 2/1]
As the quoted portion of the opinion below shows, our Court, by
relying on the petitioner's statement that he would claim at a new
trial that the unlawfully seized evidence induced his admissions
and confession, accepts a claim which, apart from its lack of
foundation in the record, is made for the first time here.
[
Footnote 2/2]
There is no need to consider whether a state or federal standard
of harmless error governs, since the state standard applied here is
as strict as any possible federal standard.