Petitioner was one of four men arrested after the auto in which
they were riding was stopped by police shortly after an armed
robbery of a service station. The arrests resulted from information
supplied by the service station attendant and bystanders. The car
was driven to a police station, where a search disclosed two
revolvers, one loaded with dumdum bullets, and cards bearing the
name of an attendant at another service station who had been robbed
at gunpoint a week earlier. In a warrant-authorized search of
petitioner's home the next day, police found and seized ammunition,
including dumdum bullets similar to those found in one of the guns
in the car. At his first trial, which ended in a mistrial,
petitioner was represented by a Legal Aid Society attorney. Another
Legal Aid Society attorney, who represented him at the second
trial, did not confer with petitioner until a few minutes before
that trial began. The materials taken from the car and the bullets
seized from petitioner's home were introduced in evidence, and
petitioner was convicted of robbery of both service stations.
Petitioner did not take a direct appeal, but sought,
unsuccessfully, a writ of habeas corpus in the Pennsylvania courts
and in the federal courts, challenging the admissibility of the
materials taken from the car and the ammunition seized in his home,
and claiming that he was denied the effective assistance of
counsel. The Court of Appeals dealt with the claim that the
attorney's lack of preparation resulted in the failure to exclude
the guns and ammunition by finding harmless error in the admission
of the bullets and ruling that the materials seized from the car
were admissible in evidence, and concluded that the claim of
prejudice from substitution of counsel was without substantial
basis.
Held:
1. The warrantless search of the automobile was valid, and the
materials seized therefrom were properly introduced in evidence.
Pp.
399 U. S.
46-52.
(a) The search, made at the police station some time after the
arrest, cannot be justified as incident to the arrest. Pp.
399 U. S.
46-47.
Page 399 U. S. 43
(b) Just as there was probable cause to arrest the occupants of
the car, there was probable cause to search the car for guns and
stolen money. Pp.
399 U. S.
47-48.
(c) If there is probable cause, an automobile, because of its
mobility, may be searched without a warrant in circumstances that
would not justify a warrantless search of a house or office.
Carroll v. United States, 267 U.
S. 132. Pp.
399 U. S.
48-51.
(d) Given probable cause, there is no difference under the
Fourth Amendment between (1) seizing and holding a car before
presenting the issue of probable cause to a magistrate, and (2)
carrying out an immediate warrantless search. Pp.
399 U. S.
51-52.
2. The findings of the District Court and the Court of Appeals
that, if there was error in admitting in evidence the ammunition
seized from petitioner's house, it was harmless error beyond a
reasonable doubt, are affirmed on the basis of the Court's review
of the record. Pp.
399 U. S.
52-53.
3. Based on a careful examination of the state court record, the
Court of Appeals' judgment denying a hearing a to the adequacy of
representation by counsel, is not disturbed. Pp.
399 U. S.
53-54.
408 F.2d 1186, affirmed.
MR. JUSTICE WHITE delivered the opinion of the Court.
The principal question in this case concerns the admissibility
of evidence seized from an automobile, in which petitioner was
riding at the time of his arrest, after the automobile was taken to
a police station and was there thoroughly searched without a
warrant. The Court of Appeals for the Third Circuit found no
violation of petitioner's Fourth Amendment rights. We affirm.
Page 399 U. S. 44
I
During the night of May 20, 1963, a Gulf service station in
North Braddock, Pennsylvania, was robbed by two men, each of whom
carried and displayed a gun. The robbers took the currency from the
cash register; the service station attendant, one Stephen Kovacich,
was directed to place the coins in his right-hand glove, which was
then taken by the robbers. Two teenagers, who had earlier noticed a
blue compact station wagon circling the block in the vicinity of
the Gulf station, then saw the station wagon speed away from a
parking lot close to the Gulf station. About the same time, they
learned that the Gulf station had been robbed. They reported to
police, who arrived immediately, that four men were in the station
wagon and one was wearing a green sweater. Kovacich told the police
that one of the men who robbed him was wearing a green sweater and
the other was wearing a trench coat. A description of the car and
the two robbers was broadcast over the police radio. Within an
hour, a light blue compact station wagon answering the description
and carrying four men was stopped by the police about two miles
from the Gulf station. Petitioner was one of the men in the station
wagon. He was wearing a green sweater, and there was a trench coat
in the car. The occupants were arrested, and the car was driven to
the police station. In the course of a thorough search of the car
at the station, the police found concealed in a compartment under
the dashboard two .38-caliber revolvers (one loaded with dumdum
bullets), a right-hand glove containing small change, and certain
cards bearing the name of Raymond Havicon, the attendant at a Boron
service station in McKeesport, Pennsylvania, who had been robbed at
gunpoint on May 13, 1963. In the course of a warrant-authorized
search of petitioner's home the day after petitioner's arrest,
police found and
Page 399 U. S. 45
seized certain .38-caliber ammunition, including some dumdum
bullets similar to those found in one of the guns taken from the
station wagon.
Petitioner was indicted for both robberies. [
Footnote 1] His first trial ended in a mistrial,
but he was convicted of both robberies at the second trial. Both
Kovacich and Havicon identified petitioner as one of the robbers.
[
Footnote 2] The materials
taken from the station wagon were introduced into evidence,
Kovacich identifying his glove and Havicon the cards taken in the
May 13 robbery. The bullets seized at petitioner's house were also
introduced over objections of petitioner's counsel. [
Footnote 3] Petitioner was sentenced to a
term of four to eight years' imprisonment for the May 13 robbery
and to a term of two to seven years' imprisonment for the May 20
robbery, the sentences to run consecutively. [
Footnote 4] Petitioner did not take a direct
appeal from these convictions. In 1965, petitioner sought a writ of
habeas corpus in the state court, which denied the writ after a
brief evidentiary hearing; the denial of
Page 399 U. S. 46
the writ was affirmed on appeal in the Pennsylvania appellate
courts. Habeas corpus proceedings were then commenced in the United
States District Court for the Western District of Pennsylvania. An
order to show cause was issued. Based on the State's response and
the state court record, the petition for habeas corpus was denied
without a hearing. The Court of Appeals for the Third Circuit
affirmed, 408 F.2d 1186, and we granted certiorari, 396 U.S. 900
(1969). [
Footnote 5]
II
We pass quickly the claim that the search of the automobile was
the fruit of an unlawful arrest. Both the courts below thought the
arresting officers had probable cause to make the arrest. We agree.
Having talked to the teen-age observers and to the victim Kovacich,
the police had ample cause to stop a light blue compact station
wagon carrying four men and to arrest the occupants, one of whom
was wearing a green sweater
Page 399 U. S. 47
and one of whom had a trench coat with him in the car. [
Footnote 6]
Even so, the search that produced the incriminating evidence was
made at the police station some time after the arrest, and cannot
be justified as a search incident to an arrest:
"Once 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."
Preston v. United States, 376 U.
S. 364,
376 U. S. 367
(1964).
Dyke v. Taylor Implement Mfg. Co., 391 U.
S. 216 (1968), is to the same effect; the reasons that
have been thought sufficient to justify warrantless searches
carried out in connection with an. arrest no longer obtain when the
accused is safely in custody at the station house.
There are, however, alternative grounds arguably justifying the
search of the car in this case. In
Preston, supra, the
arrest was for vagrancy; it was apparent that the officers had no
cause to believe that evidence of crime was concealed in the auto.
In
Dyke, supra, the Court expressly rejected the
suggestion that there was probable cause to search the car, 391
U.S. at
391 U. S.
221-222. Here, the situation is different, for the
police had probable cause to believe that the robbers, carrying
guns and the fruits of the crime, had fled the scene in a light
blue compact station wagon which would be carrying four men, one
wearing a green sweater and another wearing a trench coat. As the
state courts correctly held, there was probable cause to arrest the
occupants of the station wagon that the officers stopped; just as
obviously was
Page 399 U. S. 48
there probable cause to search the car for guns and stolen
money.
In terms of the circumstances justifying a warrantless search,
the Court has long distinguished between an automobile and a home
or office. In
Carroll v. United States, 267 U.
S. 132 (1925), the issue was the admissibility in
evidence of contraband liquor seized in a warrantless search of a
car on the highway. After surveying the law from the time of the
adoption of the Fourth Amendment onward, the Court held that
automobiles and other conveyances may be searched without a warrant
in circumstances that would not justify the search without a
warrant of a house or an office, provided that there is probable
cause to believe that the car contains articles that the officers
are entitled to seize. The Court expressed its holding as
follows:
"We have made a somewhat extended reference to these statutes to
show that the guaranty of freedom from unreasonable searches and
seizures by the Fourth Amendment has been construed, practically
since the beginning of the Government, as recognizing a necessary
difference between a search of a store, dwelling house or other
structure in respect of which a proper official warrant readily may
be obtained, and a search of a ship, motor boat, wagon or
automobile, for contraband goods, where it is not practicable to
secure a warrant because the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant must be
sought."
"Having thus established that contraband goods concealed and
illegally transported in an automobile or other vehicle may be
searched for without a warrant, we come now to consider under what
circumstances such search may be made. . . . [T]hose lawfully
within the country, entitled to use
Page 399 U. S. 49
the public highways, have a right to free passage without
interruption or search unless there is known to a competent
official authorized to search, probable cause for believing that
their vehicles are carrying contraband or illegal merchandise. . .
."
"
* * * *"
"The measure of legality of such a seizure is, therefore, that
the seizing officer shall have reasonable or probable cause for
believing that the automobile which he stops and seizes has
contraband liquor therein which is being illegally
transported."
267 U.S. at
267 U. S.
153-154,
267 U. S.
155-156. The Court also noted that the search of an auto
on probable cause proceeds on a theory wholly different from that
justifying the search incident to an arrest:
"The right to search and the validity of the seizure are not
dependent on the right to arrest. They are dependent on the
reasonable cause the seizing officer has for belief that the
contents of the automobile offend against the law."
267 U.S. at
267 U. S.
158-159. Finding that there was probable cause for the
search and seizure at issue before it, the Court affirmed the
convictions.
Carroll was followed and applied in
Husty v. United
States, 282 U. S. 694
(1931), and
Scher v. United States, 305 U.
S. 251 (1938). It was reaffirmed and followed in
Brinegar v. United States, 338 U.
S. 160 (1949). In 1964, the opinion in
Preston,
supra, cited both
Brinegar and
Carroll with
approval, 376 U.S. at
376 U. S.
366-367. In
Cooper v. California, 386 U. S.
58 (1967), [
Footnote
7]
Page 399 U. S. 50
the Court read
Preston as dealing primarily with a
search incident to arrest, and cited that case for the proposition
that the mobility of a car may make the search of a car without a
warrant reasonable "although the result might be the opposite in a
search of a home, a store, or other fixed piece of property." 386
U.S. at
386 U. S. 59.
The Court's opinion in
Dyke, 391 U.S. at
391 U. S. 221,
recognized that
"[a]utomobiles, because of their mobility, may be searched
without a warrant upon facts not justifying a warrantless search of
a residence or office,"
citing
Brinegar and
Carroll, supra. However,
because there was insufficient reason to search the car involved in
the
Dyke case, the Court did not reach the question of
whether those cases
"extend to a warrantless search, based upon probable cause, of
an automobile which, having been stopped originally on a highway,
is parked outside a courthouse."
391 U.S. at
391 U. S. 222.
[
Footnote 8] Neither
Carroll, supra, nor other cases in this Court require or
suggest that, in every conceivable circumstance, the search of an
auto even with probable cause may be made without the extra
protection for privacy that a warrant affords. But the
circumstances that
Page 399 U. S. 51
furnish probable cause to search a particular auto for
particular articles are most often unforeseeable; moreover, the
opportunity to search is fleeting, since a car is readily movable.
Where this is true, as in
Carroll and the case before us
now, if an effective search is to be made at any time, either the
search must be made immediately without a warrant or the car itself
must be seized and held without a warrant for whatever period is
necessary to obtain a warrant for the search. [
Footnote 9]
In enforcing the Fourth Amendment's prohibition against
unreasonable searches and seizures, the Court has insisted upon
probable cause as a minimum requirement for a reasonable search
permitted by the Constitution. As a general rule, it has also
required the judgment of a magistrate on the probable cause issue
and the issuance of a warrant before a search is made. Only in
exigent circumstances will the judgment of the police as to
probable cause serve as a sufficient authorization for a search.
Carroll, supra, holds a search warrant unnecessary where
there is probable cause to search an automobile stopped on the
highway; the car is movable, the occupants are alerted, and the
car's contents may never be found again if a warrant must be
obtained. Hence, an immediate search is constitutionally
permissible. Arguably, because of the preference for a magistrate's
judgment, only the immobilization of the car should be permitted
until a search warrant is obtained; arguably, only the "lesser"
intrusion is permissible until the magistrate authorizes the
"greater." But which is the "greater" and which the "lesser"
intrusion is itself a debatable question, and the answer may depend
on a variety
Page 399 U. S. 52
of circumstances. For constitutional purposes, we see no
difference between, on the one hand, seizing and holding a car
before presenting the probable cause issue to a magistrate and, on
the other hand, carrying out an immediate search without a warrant.
Given probable cause to search, either course is reasonable under
the Fourth Amendment.
On the facts before us, the blue station wagon could have been
searched on the spot when it was stopped, since there was probable
cause to search and it was a fleeting target for a search. The
probable cause factor still obtained at the station house, and so
did the mobility of the car, unless the Fourth Amendment permits a
warrantless seizure of the car and the denial of its use to anyone
until a warrant is secured. In that event, there is little to
choose in terms of practical consequences between an immediate
search without a warrant and the car's immobilization until a
warrant is obtained. [
Footnote
10] The same consequences may not follow where there is
unforeseeable cause to search a house.
Compare Vale v.
Louisiana, ante, p.
399 U. S. 30. But,
as
Carroll, supra, held, for the purposes of the Fourth
Amendment, there is a constitutional difference between houses and
cars.
III
Neither of petitioner's remaining contentions warrants reversal
of the judgment of the Court of Appeals. One of them challenges the
admissibility at trial of the .38 caliber ammunition seized in the
course of a search of petitioner's house. The circumstances
relevant to this
Page 399 U. S. 53
issue are somewhat confused, involving as they do questions of
probable cause, a lost search warrant, and the Pennsylvania
procedure for challenging the admissibility of evidence seized.
Both the District Court and the Court of Appeals, however, after
careful examination of the record, found that, if there was error
in admitting the ammunition, the error was harmless beyond a
reasonable doubt. Having ourselves studied this record, we are not
prepared to differ with the two courts below.
See Harrington v.
California, 395 U. S. 250
(1969).
The final claim is that petitioner was not afforded the
effective assistance of counsel. The facts pertinent to this claim
are these: the Legal Aid Society of Allegheny County was appointed
to represent petitioner prior to his first trial. A representative
of the society conferred with petitioner, and a member of its
staff, Mr. Middleman, appeared for petitioner at the first trial.
There is no claim that petitioner was not then adequately
represented by fully prepared counsel. The difficulty arises out of
the second trial. Apparently, no one from the Legal Aid Society
again conferred with petitioner until a few minutes before the
second trial began. The attorney who then appeared to represent
petitioner was not Mr. Middleman, but Mr. Tamburo, another Legal
Aid Society attorney. No charge is made that Mr. Tamburo was
incompetent or inexperienced; rather, the claim is that his
appearance for petitioner was so belated that he could not have
furnished effective legal assistance at the second trial. Without
granting an evidentiary hearing, the District Court rejected
petitioner's claim. The Court of Appeals dealt with the matter in
an extensive opinion. After carefully examining the state court
record, which it had before it, the court found ample grounds for
holding that the appearance of a different attorney at the second
trial had not resulted in prejudice to petitioner. The claim that
Mr. Tamburo
Page 399 U. S. 54
was unprepared centered around his allegedly inadequate efforts
to have the guns and ammunition excluded from evidence. But the
Court of Appeals found harmless any error in the admission of the
bullets, and ruled that the guns and other materials seized from
the car were admissible evidence. Hence, the claim of prejudice
from the substitution of counsel was without substantial basis.
[
Footnote 11] In this
posture of the case, we are not inclined to disturb the judgment of
the Court of Appeals as to what the state record shows with respect
to the adequacy of counsel. Unquestionably, the courts should make
every effort to effect early appointments of counsel in all cases.
But we are not disposed to fashion a
per se rule requiring
reversal of every conviction following tardy appointment of counsel
or to hold that, whenever a habeas corpus petition alleges a
belated appointment, an evidentiary hearing must be held to
determine whether the defendant has been denied his constitutional
right to counsel. The Court of Appeals reached the right result in
denying a hearing in this case.
Affirmed.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
[
Footnote 1]
Petitioner was indicted separately for each robbery. One of the
other three men was similarly indicted, and the other two were
indicted only for the Gulf robbery. All indictments and all
defendants were tried together. In a second trial following a
mistrial, the jury found all defendants guilty as charged.
[
Footnote 2]
Kovacich identified petitioner at a pretrial stage of the
proceedings, and so testified, but could not identify him at the
trial. Havicon identified petitioner both before trial and at
trial.
[
Footnote 3]
The bullets were apparently excluded at the first trial. The
grounds for the exclusion do not clearly appear from the record now
before us.
[
Footnote 4]
The four-to-eight-year sentence was to be served concurrently
with another sentence, for an unrelated armed robbery offense,
imposed earlier but vacated subsequent to imposition of sentence in
this case. The two-to-seven-year term was to be consecutive to the
other sentences. It appears that the offenses here at issue caused
revocation of petitioner's parole in connection with a prior
conviction. Apparently petitioner has now begun to serve the first
of the two sentences imposed for the convictions here
challenged.
[
Footnote 5]
Since
Mapp v. Ohio, 367 U. S. 643
(1961), the federal courts have regularly entertained and ruled on
petitions for habeas corpus filed by state prisoners alleging that
unconstitutionally seized evidence was admitted at their trials.
See, e.g., Mancusi v. DeForte, 392 U.
S. 364 (1968);
Carafas v. LaVallee,
391 U. S. 234
(1968);
Warden v. Hayden, 387 U.
S. 294 (1967). As for federal prisoners, a divided Court
held that relief under 28 U.S.C. § 2255 was available to vindicate
Fourth Amendment rights.
Kaufman v. United States,
394 U. S. 217
(1969). Right-to-counsel claims, of course, have regularly been
pressed and entertained in federal habeas corpus proceedings.
It is relevant to note here that petitioner Chambers, at trial,
made no objection to the introduction of the items seized from the
car; however, his Fourth Amendment claims with respect to the auto
search were raised and passed on by the Pennsylvania courts in the
state habeas corpus proceeding. His objection to the search of his
house was raised at his trial and rejected both on the merits and
because he had not filed a motion to suppress; similar treatment
was given the point in the state collateral proceedings, which took
place before the same judge who had tried the criminal case. The
counsel claim was not presented at trial, but was raised and
rejected in the state collateral proceedings.
[
Footnote 6]
In any event, as we point out below, the validity of an arrest
is not necessarily determinative of the right to search a car if
there is probable cause to make the search. Here, as will be true
in many cases, the circumstances justifying the arrest are also
those furnishing probable cause for the search.
[
Footnote 7]
Cooper involved the warrantless search of a car held
for forfeiture under state law. Evidence seized from the car in
that search was held admissible. In the case before us, no claim is
made that state law authorized that the station wagon be held as
evidence or as an instrumentality of the crime; nor was the station
wagon an abandoned or stolen vehicle. The question here is whether
probable cause justifies a warrantless search in the circumstances
presented.
[
Footnote 8]
Nothing said last term in
Chimel v. California,
395 U. S. 752
(1969), purported to modify or affect the rationale of
Carroll. As the Court noted:
"Our holding today is of course entirely consistent with the
recognized principle that, assuming the existence of probable
cause, automobiles and other vehicles may be searched without
warrants"
"where it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought."
"
Carroll v. United States, 267 U. S.
132,
267 U. S. 153;
see
Brinegar v. United States, 338 U. S. 160."
395 U.S. at
395 U. S. 764
n. 9.
[
Footnote 9]
Following the car until a warrant can be obtained seem an
impractical alternative since, among other things, the car may be
taken out of the jurisdiction. Tracing the car and searching it
hours or days later would, of course, permit instruments or fruits
of crime to be removed from the car before the search.
[
Footnote 10]
It was not unreasonable in this case to take the car to the
station house. All occupants in the car were arrested in a dark
parking lot in the middle of the night. A careful search at that
point was impractical, and perhaps not safe for the officers, and
it would serve the owner's convenience and the safety of his car to
have the vehicle and the keys together at the station house.
[
Footnote 11]
It is pertinent to note that each of the four defendants was
represented by separate counsel. The attorney for Lawson, who was
the car owner and who was the only defendant to take the stand,
appears to have been the lead counsel. As far the record before us
reveals, no counsel made any objection at the trial to the
admission of the items taken from the car. Petitioner's counsel
objected to the introduction of the bullets seized from
petitioner's house.
MR. JUSTICE STEWART, concurring.
I adhere to the view that the admission at trial of evidence
acquired in alleged violation of Fourth Amendment
Page 399 U. S. 55
standards is not, of itself, sufficient ground for a collateral
attack upon an otherwise valid criminal conviction, state or
federal.
See Harris v. Nelson, 394 U.
S. 286,
394 U. S. 307
(dissenting opinion);
Kaufman v. United States,
394 U. S. 217,
394 U. S. 242
(dissenting opinion). But until the Court adopts that view, I
regard myself as obligated to consider the merits of the Fourth and
Fourteenth Amendment claims in a case of this kind. Upon that
premise, I join the opinion and judgment of the Court.
MR. JUSTICE HARLAN, concurring in part and dissenting in
part.
I find myself in disagreement with the Court's disposition of
this case in two respects.
I
I cannot join the Court's casual treatment of the issue that has
been presented by both parties as the major issue in this case:
petitioner's claim that he received ineffective assistance of
counsel at his trial. As the Court acknowledges, petitioner met Mr.
Tamburo, his trial counsel, for the first time en route to the
courtroom on the morning of trial. Although a different Legal Aid
Society attorney had represented petitioner at his first trial,
apparently neither he nor anyone else from the society had
conferred with petitioner in the interval between trials. Because
the District Court did not hold an evidentiary hearing on the
habeas petition, there is no indication in the record of the extent
to which Mr. Tamburo may have consulted petitioner's previous
attorney, the attorneys for the other defendants, or the files of
the Legal Aid Society. What the record does disclose on this claim
is essentially a combination of two factors: the entry of counsel
into the case immediately
Page 399 U. S. 56
before trial, and his handling of the issues that arose during
the trial. [
Footnote 2/1]
As respondent must concede, counsel's last-minute entry into the
case precluded his compliance with the state rule requiring that
motions to suppress evidence be made before trial, even assuming
that he had sufficient acquaintance with the case to know what
arguments were worth making. Furthermore, the record suggests that
he may have had virtually no such acquaintance.
In the first place, he made no objection to the admission in
evidence of the objects found during the search of the car at the
station house after the arrest of its occupants, although that
search was of questionable validity under Fourth Amendment
standards,
see infra.
Second, when the prosecution offered in evidence the bullets
found in the search of petitioner's home, which had been excluded
on defense objection at the first trial, Mr. Tamburo objected to
their admission, but in a manner that suggested that he was a
stranger to the facts of the case. While he indicated that he did
know of the earlier exclusion, he apparently did not know on what
ground the bullets had been excluded, and based his
Page 399 U. S. 57
objection only on their asserted irrelevance. [
Footnote 2/2] Later in the trial, he renewed his
objection on the basis of the inadequacy of the warrant, stating,
"I didn't know a thing about the search Warrant until this
morning." App. 130. [
Footnote
2/3]
Third, when prosecution witness Havicon made an in-court
identification of petitioner as the man who had
Page 399 U. S. 58
threatened him with a gun during one of the robberies, Mr.
Tamburo asked questions in cross-examination that suggested that he
had not had time to settle upon a trial strategy or even to
consider whether petitioner would take the stand. Mr. Tamburo asked
whether, at a pretrial lineup, a detective had not told Havicon
that petitioner "was the man with the gun." After Havicon's
negative answer, this colloquy ensued:
"THE COURT: I take it you will be able to disprove that, will
you?"
"MR. TAMBURO: What?"
"THE COURT: You shouldn't ask that question unless you are
prepared to disprove that, contradict him."
"MR. TAMBURO: I have the defendant's testimony."
"THE COURT: Disprove it in any way at all."
"MR. MEANS [the prosecutor]: I don't understand how the
defendant would know what the detectives told him."
"THE COURT: He said he is going to disprove it by the defendant,
that's all right, go ahead."
App. 34. The next witness was a police officer who had been
present at the lineup, and who testified that no one had told
Havicon whom to pick out. Petitioner's counsel did not
cross-examine, and petitioner never took the stand.
On this state of the record, the Court of Appeals ruled that,
although the late appointment of counsel necessitated close
scrutiny into the effectiveness of his representation, petitioner
"was not prejudiced by the late appointment of counsel" because
neither of the Fourth Amendment claims belatedly raised justified
reversal of
Page 399 U. S. 59
the conviction. 408 F.2d 1186, 1196. I agree that the strength
of the search and seizure claims is an element to be considered in
the assessment of whether counsel was adequately prepared to make
an effective defense, but I cannot agree that the relevance of
those claims in this regard disappears upon a conclusion by an
appellate court that they do not invalidate the conviction.
This Court recognized long ago that the duty to provide
counsel
"is not discharged by an assignment at such a time or under such
circumstances as to preclude the giving of effective aid in the
preparation and trial of the case."
Powell v. Alabama, 287 U. S. 45,
287 U. S. 71
(1932);
Hawk v. Olson, 326 U. S. 271,
326 U. S. 278
(1945). While "the Constitution nowhere specifies any period which
must intervene between the required appointment of counsel and
trial," the Court has recognized that
"the denial of opportunity for appointed counsel to confer, to
consult with the accused, and to prepare his defense could convert
the appointment of counsel into a sham, and nothing more than a
formal compliance with the Constitution's requirement that an
accused be given the assistance of counsel."
Avery v. Alabama, 308 U. S. 444,
308 U. S. 446
(1940). Where counsel has no acquaintance with the facts of the
case and no opportunity to plan a defense, the result is that the
defendant is effectively denied his constitutional right to
assistance of counsel.
It seems to me that what this record reveals about counsel's
handling of the search and seizure claims and about the tenor of
his cross-examination of the government witness Havicon, when
coupled with his late entry into the case, called for more
exploration by the District Court before petitioner's ineffective
assistance of counsel claim could be dismissed. Such an exploration
should
Page 399 U. S. 60
have been directed to ascertaining whether the circumstances
under which Mr. Tamburo was required to undertake petitioner's
defense at the second trial were such as to send him into the
courtroom with so little knowledge of the case as to render him
incapable of affording his client adequate representation. The
event of that exploration would turn, not on a mere assessment of
particular missteps or omissions of counsel, whether or not caused
by negligence,
cf. McMann v. Richardson, 397 U.
S. 759 (1970), but on the District Court's evaluation of
the total picture, with the objective of determining whether
petitioner was deprived of rudimentary legal assistance.
See
Williams v. Beto, 354 F.2d 698 (C.A. 5th Cir.1965). And, of
course, such an exploration would not be confined to the three
episodes that, in my opinion, triggered the necessity for a
hearing.
It is not an answer to petitioner's claim for a reviewing court
simply to conclude that he has failed after the fact to show that,
with adequate assistance, he would have prevailed at trial.
Glasser v. United States, 315 U. S.
60,
315 U. S. 75-76
(1942);
cf. White v. Maryland, 373 U. S.
59 (1963);
Reynolds v. Cochran, 365 U.
S. 525,
365 U. S.
530-533 (1961). Further inquiry might show, of course,
that counsel's opportunity for preparation was adequate to protect
petitioner's interests, [
Footnote
2/4] but petitioner did, in my view, raise a sufficient doubt
on that score to be entitled to an evidentiary hearing. [
Footnote 2/5]
Page 399 U. S. 61
II
In sustaining the search of the automobile, I believe the Court
ignores the framework of our past decisions circumscribing the
scope of permissible search without a warrant. The Court has long
read the Fourth Amendment's proscription of "unreasonable" searches
as imposing a general principle that a search without a warrant is
not justified by the mere knowledge by the searching officers of
facts showing probable cause. The "general requirement that a
search warrant be obtained" is basic to the Amendment's protection
of privacy, and "
the burden is on those seeking [an] exemption
. . . to show the need for it.'" E.g., Chimel v.
California, 395 U. S. 752,
395 U. S. 762
(1969); Katz v. United States, 389 U.
S. 347, 389 U. S.
356-358 (1967); Warden v. Hayden, 387 U.
S. 294, 387 U. S. 299
(1967); Preston v. United States, 376 U.
S. 364, 376 U. S. 367
(1964); United States v. Jeffers, 342 U. S.
48, 342 U. S. 51
(1951); McDonald v. United States, 335 U.
S. 451, 335 U. S.
455-456 (1948); Agnello v. United States,
269 U. S. 20,
269 U. S. 33
(1925).
Fidelity to this established principle requires that, where
exceptions are made to accommodate the exigencies of particular
situations, those exceptions be no broader than necessitated by the
circumstances presented. For example, the Court has recognized that
an arrest creates an emergency situation justifying a warrantless
search of the arrestee's person and of "the area from within which
he might gain possession of a weapon or destructible evidence";
however, because the exigency giving rise to this exception extends
only that far, the search may go no further.
Chimel v.
California, 395 U.S. at
395 U. S. 763;
Trupiano v. United States, 334 U.
S. 699,
334 U. S. 705,
708 (1948). Similarly, we held in
Terry v. Ohio,
392 U. S. 1 (1968),
that a warrantless search in a "stop and frisk" situation must "be
strictly circumscribed
Page 399 U. S. 62
by the exigencies which justify its initiation."
Id. at
392 U. S. 26. Any
intrusion beyond what is necessary for the personal safety of the
officer or others nearby is forbidden.
Where officers have probable cause to search a vehicle on a
public way, a further limited exception to the warrant requirement
is reasonable because "the vehicle can be quickly moved out of the
locality or jurisdiction in which the warrant must be sought."
Carroll v. United States, 267 U.
S. 132,
267 U. S. 153
(1925). Because the officers might be deprived of valuable evidence
if required to obtain a warrant before effecting any search or
seizure, I agree with the Court that they should be permitted to
take the steps necessary to preserve evidence and to make a search
possible. [
Footnote 2/6]
Cf. ALI, Model Code of Pre-Arraignment Procedure § 6.03
(Tent.Draft No. 3, 1970). The Court holds that those steps include
making a warrantless search of the entire vehicle on the highway --
a conclusion reached by the Court in
Carroll without
discussion -- and indeed appears to go further and to condone the
removal of the car to the police station for a warrantless search
there at the convenience of the police. [
Footnote 2/7] I cannot agree that this result is
consistent
Page 399 U. S. 63
with our insistence in other areas that departures from the
warrant requirement strictly conform to the exigency presented.
The Court concedes that the police could prevent removal of the
evidence by temporarily seizing the car for the time necessary to
obtain a warrant. It does not dispute that such a course would
fully protect the interests of effective law enforcement; rather,
it states that whether temporary seizure is a "lesser" intrusion
than warrantless search "is itself a debatable question, and the
answer may depend on a variety of circumstances."
Ante at
399 U. S. 51-52.
[
Footnote 2/8] I believe it clear
that a warrantless search involves the greater sacrifice of Fourth
Amendment values.
The Fourth Amendment proscribes, to be sure, unreasonable
"seizures," as well as "searches." However, in the circumstances in
which this problem is likely to occur, the lesser intrusion will
almost always be the simple seizure of the car for the period --
perhaps a day -- necessary to enable the officers to obtain a
search warrant. In the first place, as this case shows, the very
facts establishing probable cause to search will often
Page 399 U. S. 64
also justify arrest of the occupants of the vehicle. Since the
occupants themselves are to be taken into custody, they will suffer
minimal further inconvenience from the temporary immobilization of
their vehicle. Even where no arrests are made, persons who wish to
avoid a search -- either to protect their privacy or to conceal
incriminating evidence -- will almost certainly prefer a brief loss
of the use of the vehicle in exchange for the opportunity to have a
magistrate pass upon the justification for the search. To be sure,
one can conceive of instances in which the occupant, having nothing
to hide and lacking concern for the privacy of the automobile,
would be more deeply offended by a temporary immobilization of his
vehicle than by a prompt search of it. However, such a person
always remains free to consent to an immediate search, thus
avoiding any delay. Where consent is not forthcoming, the occupants
of the car have an interest in privacy that is protected by the
Fourth Amendment even where the circumstances justify a temporary
seizure.
Terry v. Ohio, supra. The Court's endorsement of
a warrantless invasion of that privacy where another course would
suffice is simply inconsistent with our repeated stress on the
Fourth Amendment's mandate of "
adherence to judicial
processes.'" E.g., Katz v. United States, 389 U.S. at
389 U. S. 357.
[Footnote 2/9]
Indeed, I believe this conclusion is implicit in the opinion of
the unanimous Court in
Preston v.
United
Page 399 U. S. 65
States, 376 U. S. 364
(1964). The Court there purported to decide whether a factual
situation virtually identical to the one now before us was "such as
to fall within
any of the exceptions to the constitutional
rule that a search warrant must be had before a search may be
made."
Id. at
376 U. S. 367
(emphasis added). The Court concluded that no exception was
available, stating that,
"since 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."
Id. at
376 U. S. 368.
The Court's reliance on the police custody of the car as its reason
for holding "that the search of the car without a warrant failed to
meet the test of reasonableness under the Fourth Amendment,"
ibid., can only have been based on the premise that the
more reasonable course was for the police to retain custody of the
car for the short time necessary to obtain a warrant. The Court
expressly did not rely, as suggested today, on the fact that an
arrest for vagrancy provided "no cause to believe that evidence of
crime was concealed in the auto."
Ante at
399 U. S. 47;
see 376 U.S. at
376 U. S. 368;
Wood v. Crouse, 417 F.2d 394, 397-398 (C.A. 10th
Cir.1969). The Court now discards the approach taken in
Preston, and creates a special rule for automobile
searches that is seriously at odds with generally applied Fourth
Amendment principles.
III
The Court accepts the conclusion of the two courts below that
the introduction of the bullets found in petitioner's home, if
error, was harmless. Although, as explained above, I do not agree
that this destroys the relevance of the issue to the
ineffectiveness of counsel claim, I agree that the record supports
the lower courts' conclusion that this item of evidence, taken
alone, was harmless beyond a reasonable doubt.
[
Footnote 2/1]
Respondent concedes in this Court that
"no other facts are available to determine the amount and the
quality of the preparation for trial pursued by Mr. Tamburo or the
amount of evidentiary material known by and available to him in
determining what, if any, evidentiary objection were mandated or
what, if any, defenses were available to petitioner."
Brief for Respondent 13. The Court of Appeals stated:
"We do not know what preparation, if any, counsel was able to
accomplish prior to the date of the trial as he did not testify in
the state habeas corpus proceeding and there was no evidentiary
hearing in the district court. From the lower court opinion, as
will appear later, we are led to believe that counsel was not
wholly familiar with all aspects of the case before trial."
408 F.2d 1186, 1191.
[
Footnote 2/2]
Mr. Tamburo stated to the trial court:
"Your Honor, at the first trial, the District Attorney attempted
to introduce into evidence some .38 calibre bullets that were found
at the Chambers' home after his arrest. . . . At that trial, it was
objected to, and the objection was sustained, and I would also like
to object to it now -- I don't think it is good for the Jury to
hear it. I don't feel there is any relevancy or connection between
the fact there were .38 calibre bullets at his home and the fact
that a .38 calibre gun was found, not on the person of Chambers,
but in the group."
App. 82. This was the only instance in which Mr. Tamburo
expressed any knowledge of what had transpired at the first trial,
and it does not appear whether he learned of the exclusion from his
brief talk with petitioner en route to the courtroom or from
sources within the Legal Aid Society. The record does not disclose
the reason for the exclusion of the bullets at the first trial.
[
Footnote 2/3]
This colloquy followed the renewed objection:
"THE COURT: Well, of course, you have known about this from the
other trial three weeks ago."
"MR. TAMBURO: I wasn't the attorney at the other trial."
"THE COURT: But, you knew about it?"
"MR. TAMBURO: I didn't know a thing about the search Warrant
until this morning."
"THE COURT: You knew about the evidence about to be introduced,
you told me about it."
"MR. TAMBURO: It wasn't admitted."
"THE COURT: That doesn't mean I have to exclude it now."
Id. at 130.
The court proceeded to overrule the objection on the ground that
it had not been made in a pretrial motion, adding that "I think
there is reasonable ground for making a search here, even without a
Warrant."
Id. at 130-131.
[
Footnote 2/4]
In
Avery, this Court concluded on the basis of a
hearing:
"That the examination and preparation of the case, in the time
permitted by the trial judge, had been adequate for counsel to
exhaust its every angle is illuminated by the absence of any
indication, on the motion and hearing for new trial, that they
could have done more had additional time been granted."
308 U.S. at
308 U. S.
452.
[
Footnote 2/5]
The absence of any request by counsel for a continuance of the
trial should not, in my opinion, serve to vitiate petitioner's
claim at this juncture.
[
Footnote 2/6]
Where a suspect is lawfully arrested in the automobile, the
officers may, of course, perform a search within the limits
prescribed by
Chimel as an incident to the lawful arrest.
However, as the Court recognizes, the search here exceeded those
limits. Nor was the search here within the limits imposed by
pre-
Chimel law for searches incident to arrest; therefore,
the retroactivity of
Chimel is not drawn into question in
this case.
See Preston v. United States, 376 U.
S. 364 (1964).
[
Footnote 2/7]
The Court disregards the fact that
Carroll, and each of
this Court's decisions upholding a warrantless vehicle search on
its authority, involved a search for contraband.
Brinegar v.
United States, 338 U. S. 160
(1949);
Scher v. United States, 305 U.
S. 251 (1938);
Husty v. United States,
282 U. S. 694
(1931);
see United States v. Di Re, 332 U.
S. 581,
332 U. S.
584-586 (1948). Although subsequent dicta have omitted
this limitation,
see Dyke v. Taylor Implement Mfg. Co.,
391 U. S. 216,
391 U. S. 221
(1968);
United States v. Ventresca, 380 U.
S. 102,
380 U. S. 107
n. 2 (1965);
United States v. Rabinowitz, 339 U. S.
56,
339 U. S. 61
(1950),
id. at
339 U. S. 73
(Frankfurter, J., dissenting), the
Carroll decision has
not until today been held to authorize a general search of a
vehicle for evidence of crime, without a warrant, in every case
where probable cause exists.
[
Footnote 2/8]
The Court, unable to decide whether search or temporary seizure
is the "lesser" intrusion, in this case authorizes both. The Court
concludes that it was reasonable for the police to take the car to
the station, where they searched it once to no avail. The searching
officers then entered the station, interrogated petitioner and the
car's owner, and returned later for another search of the car --
this one successful. At all times, the car and its contents were
secure against removal or destruction. Nevertheless, the Court
approves the searches without even an inquiry into the officers'
ability promptly to take their case before a magistrate.
[
Footnote 2/9]
Circumstances might arise in which it would be impracticable to
immobilize the car for the time required to obtain a warrant -- for
example, where a single police officer must take arrested suspects
to the station, and has no way of protecting the suspects' car
during his absence. In such situations, it might be wholly
reasonable to perform an on-the-spot search based on probable
cause. However, where nothing in the situation makes impracticable
the obtaining of a warrant, I cannot join the Court in shunting
aside that vital Fourth Amendment safeguard.