Hill, W. P.

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Journal of Criminal Law and CriminologyVolume 38 | Issue 6 Article 81948Recent Decisions on the Right of Federal LawEnforcement Officers to Search without WarrantW. P. HillFollow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclcPart of the Criminal Law Commons, Criminology Commons, and the Criminology and CriminalJustice CommonsThis Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted forinclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons.Recommended CitationW. P. Hill, Recent Decisions on the Right of Federal Law Enforcement Officers to Search without Warrant, 38 J. Crim. L. &Criminology 629 (1947-1948)CRIMINAL LAWI CMMI.\ENT'court which in the Mitchell case had interpreted the McNabh case deci-sion of the Supreme Court as requiring a nullification of an otherwisevoluntary confession whenever illegal detention was involved. In theBoone case. the defendant was arrested about 9 o'clock on a Saturdaymorning, placed in a police showup about 11 oclock. at which time hewas identified by his robbery victim, and then for about twenty minuteshe -was questioned by the arresting officer. He was also again questionedabout 5 o'clock that afternoon for twenty or twenty-five minutes, andlater, between 9 and 10 p.m. the defendant requested to talk to the ar-resting officer and confessed his guilt on that occasion. The next day(Sunday), at about 1 p.m.. the defendant surrendered to the same of-ficer the money proceeds of the robbery. which the defendant had con-cealed in his shoe. Defendant was not arraigned until Tuesday morning.At his trial he denied making the confession. He was convicted andupon appeal his counsel contended that the illegal detention renderedthe otherwise voluntary confession inadmissible in evidence. The Courtof Appeals. in sustaining the trial court's ruling in admitting the con-fession, said: "Counsel's interpretation of the McNabb case accords withthe view taken by us of that case in our later decision in the Mitchellcase. But on appeal to the Supreme Court our view was rejected andthe Supreme Court itself interpreted its language in the 3McNabb casewholly contrary to the position now taken by counsel for appellant inthis case. In the Mitchell case the Supreme Court said, as it had saidin the McNabb case, that inexcusable detention for the purpose of ex-tracting evidence from the accused is both wrong and unlawful, butpointed out that while this is true, detention, standing alone, does not-affect the admissibilty of the confession except- where it appears that4.he disclosure is induced by it. In short, that unlawful detention, with-out more, does not require rejection of a confession otherwise admissibleand that is this ease. ' IsPrE A. -DAMMAN NRecent Decisions on the Right of Federal Law EnforcementOfficers to Search without WarrantSearch of a Fixed ResidenceOn the crucial question of what latitude to allow federal agents insearching private living quarters or places of business without havingobtained beforehand a search warrant with all its attendant constitu-tional safeguards, 1 the United States Supreme Court seems irreconcil-ably divided. In the last few years the Court, led by the justices whofavor a narrower construction of the demands of the Fourth Amend-ment, has rendered several important decisions which look toward a con-traction of the broad scope of constitutional immunity which had beenhewn out by an earlier Court during the two decades following the First'For a detailed discussion of the delayed arraignment (McNabb case) rule, seeInbau, op. cit. supra note 3 at pp. 162-169.'U.S. Coast. Amend. IV: "The right of the people to be secure in their persons,houses, papers, and effects against unreasonable searches and seizures, shall not beviolated, and no warrants shall issue, but upon probable cause, supported by oathor affirmation. and particularly describing the place to be searched and the personsor things to be sei:ed." 1 Emphasis supplied by the author.)19481CRIMINAL LAW COMMENTSWorld War. The gist of these decisions was that if an arrest was validlymade on, or closely by, the premises to be searched, the officers, if ingood faith seeking the "fruits or instrumentalities" of the crimecharged, could search among the papers and effects of the accused andseize any matter which would have been the proper object of a searchwarrant.2 The vigorous objections of the then minority justices to thealleged inroads being made on the citizen's right of privacy rose to ahigh pitch in the Harris case, where a divided Court approved the sei-zure of altered draft cards as "reasonably incident" to an arrest forcheck forgery after a five hour search of the defendant's apartment.3The opinion in the Johnson case, handed down in February of thisyear, appears to reflect a marked return to the philosophy of the pre-World War II decisions, and it is to be noted that the dissenting justicesof the decisions alluded to above are now on the majority side.4 Super-ficially the case is distinguishable from those involving the scope andnature of a search incident to an arrest, for the Court holds that a validarrest never took place and thus is not constrained to discuss these de-cisions. The facts briefly were these: Narcotic agents, on the basis ofopium fumes issuing from a transom of a hotel room and without havingpreviously acquired a search warrant, forced their way into the roomunder color of authority, arrested the defendant, and subsequently un-covered and seized a quantity of opium and a pipe. On the basis of thisevidence the Government obtained a conviction and an affirmance in theCircuit Court of Appeals. 5 The Supreme Court in an opinion by Mr.Justice Jackson reversed, holding both the arrest and search unlawful.The rule of police conduct to be gained from the opinion is strikinglylike that which was imposed on federal officials in the Prohibition Eradecisions 6 and is broad enough if liberally interpreted to have invali-dated the searches condoned by the other faction of the Court in the pre-ceding search and seizure cases in'which they held the upper hand.7It is simply that unless there is a reasonable probability of materialchange in the situation of the suspect during the time necessary to se-cure a search warrant, the federal officers must present their evidenceto a "disinterested magistrate" and have him resolve the conflictinginterests involved. Though the evidence of criminal activity which waspossessed by the officers prior to search was sufficient "probable cause"2 Davis v. United States, 328 U.S. 582 (1945) (search of gas station for illegallyheld ration coupons after arrest of owper without warrant; upheld in five to threedecision); Zap v. United States, 328 U.S. 624 (1945) (seizure of cancelled checkin office of war contractor by F.B.I. men auditing the books of defendant; no war-rant; conviction affirmed). Note (1947) 37 J. Crim. L. & Criminology 413.' Harris v. United States, 331 U.S. 145 (1947); t tensively discussed in a recentissue of this journal, note (1947) 38 J. Crim. L. & Criminology 244.' Johnson v. United States, - U.S. -, 68 S. Ct. 367 (1948). Chief Justice Vinsonand Justices Black, Reed, and Burton registered their dissents without filing a dis.senting opinion.5162 F. (2d) 562 (C. C. A. 9th, 1947). The Circuit Court of Appeals held thatthe tracing of the smell of opium to defendant's room by the three officers gave themprobable cause for the arrest, and that the search was a reasonable incident chereto."We venture to say that the smell of opium fumes may in some circumstances besecond only to the well-known maxim that 'Seeing is believing.' " Id. at 563.'Taylor v. United States, 286 U.S. 1 (1932) (search of defendant's garage onthe basis of alcoholic odors issuing therefrom; held illegal); see United States v.Leftkowitz, 285 U.S. 452, 464 (1932).7It is precisely the same rule that Mr. Justice Jackson urged unsuccessfully inHarris v. United States, 331 U.S. 145, 195 (1947), supra note 3.[Vol. 38CRIMINAL LAW COMMENTSto support a warrant, it was not, and presumably no amount could be,sufficient to justify the invasion of individual privacy without a war-rant. Although the four dissenting justices wrote no opinions it seemsplain that they disagreed with the majority over the legality of the ar-rest. Their contention would doubtless he that after the defendantopened the door under command, "reasonable cause". existed for be-lieving the occupant guilty of a felony.8 But according to the majorityof the Court it will not do "to justify the arrest by the search (whichbegan with the initial intrusion) and at the same time justify the searchby the arrest.9 "Search of an AutomobileThe search without warrant of an automobile has always been thoughtto stand on a different footing from that of a fixed residence or place ofbusiness. Because of the mobile nature of the vehicle it was consideredunreasonable to require enforcement officers to bother going to themagistrate first. If probable cause existed that the vehicle to be searchedcontained contraband, the officers were generally allowed by the courtsto stop the vehicle, search it, and if forbidden matter were in fact un-covered, the vehicle could be lawfully seized and the driver arrested onthe basis of the discovery. 10 This rule of necessity was ushered in duringthe Prohibition Era when the automobile was the chief instrumentalityfor wholesale violations of the Liquor Law, and Congress had given thissummary form of search its express sanction in the Stanley Amend-ment.'1 The recent case of United States v. Di Re.' 2 however, cast somedoubt on the power of federal officers to search an automobile withoutexpress Congressional authorization. Di Re was prosecuted for the pos-session of counterfeit gasoline coupons in violation of emergency pricecontrol legislation, which, unlike the prohibition statutes, contained noauthorization for search of a vehicle without a warrant. Remarking thatthe power to search an automobile without a warrant was held to beconstitutionally permissible in the earlier cases under the prohibition actsbecause of the strong presumption of validity which attaches to Con-gressional legislation, Mr. Justice Jackson in the Di Re case pointed outthat Congress in no other statutes had recognized this poier in enforce-ment officials. Whether an officer would have power to stop and searchan automobile in absence of statutory authority -was not, however, de-cided in the Di Re case; for the Court held that even if the officers hadgrounds for searching the automobile in which Di Re was riding, they8 This is the law of the state (Washington) where the arrest took place. State v.Robbins, 25 Wash. (2d) 110, 169 P. (2d) 246 (1946). State law determines thevalidity of arrests without warrant. United States v. Di Re, - U.S. -, 68 S. Ct.222 (1948), infra note 12."But of. McDonald v. United States, No. 9524 (App. D.C., 1948) (officers ob-served defendant engaging in a misdemeanor by peering through transom of hisroom; sight held not to be a "search" within meaning of the constitution; courtsdid that while conduct of officers was "not gentlemanly" it did not constitute adenial of defendant's constitutional rights)."0Carroll v. United States, 267 U.S. 132 (1925); Husty v. United States, 282U.S. 694 (1930). But of. state cases collected in note (1947) 38 J. Crn. L. &Criminology 239.1141 Stat. 315 (1919), 27 U.S.C.A. §40 (1927).-- U.S. -, 68 S. Ct. 222 (1948), Chief Justice Vinson and Justice Black dis-senting.1948]CRIMINAL LAW COMMENTScould not incidentally search the persons of the passengers in the car 13A subsidiary point decided in the case is the re-affirmation of the rulethat state law is determinative of the validity of the arrest by federalofficers.The point mooted but not decided in the Di Re case-whether an au-tomobile may be stopped and searched without a warrant where thereis a suspected violation of a federal statute which does not expresslyauthorize this practice-was the precise point in issue in a case recentlydetermined in the Seventh Circuit Court of Appeals.'4 The seizuretherein was of liquor being transported in violation of the Internal Reve-nue Code, which likewise contains no express provisions covering thesearch of automobiles, and the action was one for forfeiture of the "of-fending" automobile. 15 The court, while aware of the shadow which theSupreme Court had cast upon the constitutionality of the practice, up-held the search and seizure without warrant after it had ascertainedthat probable cause existed prior to the search. The decision is basedlargely on dicta in the prohibition cases l and a 1938 decision of doubt-ful authority where elements of waiver were present.'1 It seems likelythat the case will be appealed to the Supreme Court.W. P. HILL1 This upon the analogy that one executing a warrant to search a house maynot incidentally search the persons of the occupants if they are not under arrest.Cf. Marron v. United States, 275 U.S. 192 (1927)." United States v. One 1946 Plymouth Sedan Automobile, Etc., No. 9352 (C.C.A.7th, 1948)."-53 Stat. 410 (1939), 26 U.S.C.A. §3321 (b) (1) (3) (1940)."Case cited supra note 10." Scher v. United States, 305 U.S. 251 (1938). (driver of automobile not onlyadmitted probable guilt but invited the officer to examine contents of the trunk).[Vol. 38

Recent Decisions on the Right of Federal Law Enforcement Officers to Search without Warrant

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Recent Decisions on the Right of Federal Law Enforcement Officers to Search without Warrant

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