Petitioner was convicted of a narcotics violation in a
California state court partly through evidence which the police
seized in a warrantless search of his car a week after his arrest.
Pending forfeiture proceedings, the car had been impounded "as
evidence" pursuant to a statutory provision for the seizure and
forfeiture of vehicles used in violation of the narcotics laws. The
state appellate court, in a decision which the supreme court
declined to review, held the search and seizure unconstitutional
under
Preston v. United States, 376 U.
S. 364, but held the evidentiary error harmless under
the State Constitution's harmless error provision.
Held: Under the circumstances of this case, the police
did not violate the Fourth Amendment by making a search, closely
related to the reason petitioner was arrested, of a car which they
validly held for use as evidence in a forfeiture proceeding.
Preston, supra, distinguished. Pp.
386 U. S.
59-62.
234 Cal. App.
2d 587, 44 Cal. Rptr. 483, affirmed.
MR. JUSTICE BLACK delivered the opinion of the Court.
Petitioner was convicted in a California state court of selling
heroin to a police informer. The conviction rested in part on the
introduction in evidence of a small piece of a brown paper sack
seized by police without a warrant from the glove compartment of an
automobile which police, upon petitioner's arrest, had impounded
and were holding in a garage. The search occurred a week after the
arrest of petitioner. Petitioner appealed his conviction
Page 386 U. S. 59
to the California District Court of Appeal, which, considering
itself bound by our holding and opinion in
Preston v. United
States, 376 U. S. 364,
held that the search and seizure violated the Fourth Amendment's
ban of unreasonable searches and seizures. That court went on,
however, to determine that this was harmless error under Art. VI, §
4 1/2 of California's Constitution, which provides that judgments
should not be set aside or reversed unless the court is of the
opinion that the error "resulted in a miscarriage of justice."
234 Cal. App.
2d 587, 44 Cal. Rptr. 483. The California Supreme Court
declined to hear the case. We granted certiorari along with
Chapman v. California, ante, p.
386 U. S. 18, to
consider whether the California harmless error constitutional
provision could be used in this way to ignore the alleged federal
constitutional error. 384 U.S. 904. We have today passed upon the
question in
Chapman, but do not reach it in this case,
because we are satisfied that the lower court erroneously decided
that our
Preston case required that this search be held an
unreasonable one within the meaning of the Fourth Amendment.
We made it clear in
Preston that whether a search and
seizure is unreasonable within the meaning of the Fourth Amendment
depends upon the facts and circumstances of each case, and pointed
out, in particular, that searches of cars that are constantly
movable may make the search of a car without a warrant a reasonable
one although the result might be the opposite in a search of a
home, a store, or other fixed piece of property. 376 U.S. at
376 U. S.
366-367. In
Preston, the search was sought to
be justified primarily on the ground that it was incidental to and
part of a lawful arrest. There we said that, "[o]nce an accused is
under arrest and in custody, then a search made at another place,
without a warrant, is simply not incident to the arrest."
Id. at
376 U. S. 367.
In the
Preston case, it was alternatively argued that the
warrantless
Page 386 U. S. 60
search, after the arrest was over and while Preston's car was
being held for him by the police, was justified because the
officers had probable cause to believe the car was stolen. But the
police arrested Preston for vagrancy, not theft, and no claim was
made that the police had authority to hold his car on that charge.
The search was therefore to be treated as though his car was in his
own or his agent's possession, safe from intrusions by the police
or anyone else. The situation involving petitioner's car is quite
different.
Here, California's Attorney General concedes that the search was
not incident to an arrest. It is argued, however, that the search
was reasonable on other grounds. Section 11611 of the California
Health & Safety Code provides that any officer making an arrest
for a narcotics violation shall seize and deliver to the State
Division of Narcotic Enforcement any vehicle used to store,
conceal, transport, sell or facilitate the possession of narcotics,
such vehicle "to be
held as evidence until a forfeiture
has been declared or a release ordered." [
Footnote 1] (Emphasis supplied.) Petitioner's vehicle,
which evidence showed had been used to carry on his narcotics
possession and transportation, was impounded by the officers, and
their duty required that it be kept "as evidence" until forfeiture
proceedings were carried to a conclusion. The lower court
concluded, as a matter of state law, that the state forfeiture
statute did not, by "clear and express language,"
Page 386 U. S. 61
authorize the officers to search petitioner's car. 234 Cal. App.
2d at 598, 44 Cal. Rptr. at 491. But the question here is not
whether the search was authorized by state law. The question is,
rather, whether the search was reasonable under the Fourth
Amendment. Just as a search authorized by state law may be an
unreasonable one under that amendment, so may a search not
expressly authorized by state law be justified as a
constitutionally reasonable one. While it is true, as the lower
court said, that "lawful custody of an automobile does not, of
itself, dispense with constitutional requirements of searches
thereafter made of it,"
ibid., the reason for and nature
of the custody may constitutionally justify the search. Preston was
arrested for vagrancy. An arresting officer took his car to the
station, rather than just leaving it on the street. It was not
suggested that this was done other than for Preston's convenience,
or that the police had any right to impound the car and keep it
from Preston or whomever he might send for it. The fact that the
police had custody of Preston's car was totally unrelated to the
vagrancy charge for which they arrested him. So was their
subsequent search of the car. This case is not
Preston,
nor is it controlled by it. Here, the officers seized petitioner's
car because they were required to do so by state law. They seized
it because of the crime for which they arrested petitioner. They
seized it to impound it, and they had to keep it until forfeiture
proceedings were concluded. Their subsequent search of the car --
whether the State had "legal title" to it or not -- was closely
related to the reason petitioner was arrested, the reason his car
had been impounded, and the reason it was being retained. The
forfeiture of petitioner's car did not take place until over four
months after it was lawfully seized. It would be unreasonable to
hold that the police, having to retain the car in their custody for
such a length of time, had no right, even for their own
Page 386 U. S. 62
protection, to search it. It is no answer to say that the police
could have obtained a search warrant, for "[t]he relevant test is
not whether it is reasonable to procure a search warrant, but
whether the search was reasonable."
United States v.
Rabinowitz, 339 U. S. 56,
339 U. S. 66.
Under the circumstances of this case, we cannot hold unreasonable
under the Fourth Amendment the examination or search of a car
validly held by officers for use as evidence in a forfeiture
proceeding.
Our holding, of course, does not affect the State's power to
impose higher standards on searches and seizures than required by
the Federal Constitution if it chooses to do so. And when such
state standards alone have been violated, the State is free,
without review by us, to apply its own state harmless error rule to
such errors of state law. There being no federal constitutional
error here, there is no need for us to determine whether the lower
court properly applied its state harmless error rule. [
Footnote 2]
Affirmed.
[
Footnote 1]
Cal.Health & Safety Code § 11610 provides:
"The interest of any registered owner of a vehicle used to
unlawfully transport or facilitate the unlawful transportation of
any narcotic, or in which any narcotic is unlawfully kept,
deposited, or concealed or which is used to facilitate the unlawful
keeping, depositing or concealment of any narcotic, or in which any
narcotic is unlawfully possessed by an occupant thereof or which is
used to facilitate the unlawful possession of any narcotic by an
occupant thereof, shall be forfeited to the State."
[
Footnote 2]
Petitioner also presents the contention here that he was
unconstitutionally deprived of the right to confront a witness
against him, because the State did not produce the informant to
testify against him. This contention we consider absolutely devoid
of merit.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN and MR. JUSTICE FORTAS concur, dissenting.
When petitioner was arrested, his auto was seized by officers,
pursuant to the California Health & Safety Code, § 11611. That
section authorizes a state officer making an arrest for violation
of the narcotics laws to seize a
"vehicle used to unlawfully transport any narcotic or to
facilitate the unlawful transportation of any narcotic, or in which
any narcotic is unlawfully kept,"
and directs the officer to deliver the vehicle to the Division
of Narcotic Enforcement "to be held as evidence until
Page 386 U. S. 63
a forfeiture has been declared or a release ordered." About a
week after petitioner's arrest, a state agent searched the car,
which was stored at a towing service, and discovered a piece of
brown paper which appeared to have been torn from a grocery bag.
This piece of paper was introduced at the trial, along with two
bundles of heroin, which petitioner allegedly sold an informer, and
the brown paper in which the heroin had been wrapped. [
Footnote 2/1] Petitioner was indicted and
convicted of selling heroin. A judgment of forfeiture of
petitioner's car was entered the day after the termination of his
trial.
The California District Court of Appeal held that the piece of
paper bag was the product of an illegal search,
234 Cal. App.
2d 587, 44 Cal. Rptr. 483. First, the state court held that the
State could not rely on the subsequent forfeiture to justify the
search. It realistically noted that the State's title could not
relate back to the time of the seizure until after a judicial
declaration of forfeiture. Since the forfeiture judgment was not
entered until after petitioner's trial, the State could not rely on
it to justify the search.
Id. at 596-597, 44 Cal. Rptr. at
489-490. Second, the court held that, although the automobile was
in the lawful custody of the officers at the time of the search, §
11611 of the Health & Safety Code did not authorize the
officers to search the car.
Id. at 597, 44 Cal. Rptr. at
490. Since the search was not pursuant to a warrant, and since it
was not incidental to petitioner's arrest, it was illegal.
Hence, the fact that the car was being held "as evidence" did
not, as a matter of state law, give the officers more dominion over
it than the officers in
Preston
v.
Page 386 U. S. 64
United States, 376 U. S. 364, had
over the car in their custody.
In
Preston, petitioner and others were arrested for
vagrancy after they failed to give an acceptable explanation of
their presence in a parked car late at night. They were taken to
the police station, and the car was taken first to the station and
then to a garage. After the men were booked, police officers went
to the garage, searched the car without a warrant, and found
evidence incriminating petitioner and the others of conspiracy to
rob a federally insured bank.
In the instant case, petitioner was arrested, his car taken to a
garage and searched a week after his arrest, likewise without a
warrant. As in
Preston, the search cannot be justified as
incidental to a lawful arrest. Nor can this case be distinguished
from
Preston on the ground that one car was lawfully in
police custody and the other not. In
Preston, the fact
that the car was in lawful police custody did not legalize the
search without a warrant. Since the California court held that the
Health & Safety Code did not authorize a search of a car
impounded under its provisions, the case is on all fours with
Preston so far as police custody is concerned. If custody
of the car is relevant at all, it militates against the
reasonableness of the search. As the Court said in
Preston:
"[S]ince the men were under arrest at the police station and the
car was in police custody at a garage, [there was no] danger that
the car would be moved out of the locality or jurisdiction."
376 U.S. at
376 U. S. 368.
Moreover, the claim that the search was not illegal because the car
had been forfeited to the State is foreclosed by the state court's
holding that, under the circumstances, the forfeiture could not
relate back to the date of the seizure. The state court's
interpretation of its own statute will not be upset by this Court.
Guaranty Trust Co. v. Blodgett, 287 U.
S. 509.
Page 386 U. S. 65
To repeat, this case is on all fours with
Preston. For,
in each, the search was of a car "validly" held by officers, to use
the Court's expression.
Preston, of course, was a federal
case, while this is a state case. But the Fourth Amendment, with
all its sanctions, applies to the States as well as to the Federal
Government.
Mapp v. Ohio, 367 U.
S. 643.
I see only two ways to explain the Court's opinion. One is that
it overrules
Preston sub silentio. There are those who do
not like
Preston. I think, however, it states a healthy
rule, protecting the zone of privacy of the individual as
prescribed by the Fourth Amendment. These days, police often take
possession of cars, towing them away when improperly parked. Those
cars are "validly" held by the police. Yet if they can be searched
without a warrant, the precincts of the individual are invaded and
the barriers to privacy breached. Unless the search is incident to
an arrest, I would insist that the police obtain a warrant to
search a man's car just as they must do when they search his
home.
If the present decision does not overrule
Preston, it
can perhaps be rationalized on one other ground. There is the view
that, when the Bill of Rights is applied to the States by reason of
the Fourteenth Amendment, a watered-down version is used. In that
view, "due process" qualifies all provisions of the Bill of Rights.
Today's decision is perhaps explicable in those terms. But I also
reject that view. "Unreasonable searches and seizures," as used in
the Fourth Amendment, "self-incrimination," as used with reference
to the Fifth, "freedom of speech," as used in the First, and the
like, mean the same in a state as in a federal case. [
Footnote 2/2]
[
Footnote 2/1]
About four months after the arrest, another agent searched the
car and found a marijuana seed, which was introduced at trial.
There is no objection to this evidence, since there was no jury and
the trial judge indicated that the marijuana seed was irrelevant to
the charge for which petitioner was being tried.
[
Footnote 2/2]
That view was expressly approved by the Court in
Malloy v.
Hogan, 378 U. S. 1,
378 U. S.
10-11.