U.S. Supreme Court Carroll v. United States, 267 U.S. 132 (1925) Carroll v. United States No.

15 Ar ued !e"em#er $, 1923 %estored to do"&et 'or rear ument (anuar) 2*, 192$ %ear ued +ar", 1$, 192$ !e"ided +ar", 2, 1925 267 U.S. 132 ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN Syllabus 1. The legislative history of 6 of the act supplemental to the National Prohibition Act, November 23, 1921, c. 13 , 2

!tat. 223, "hich ma#es it a mis$emeanor for any officer of the %nite$ !tates to search a private $"elling "ithout a search "arrant or to search any other buil$ing or property "ithout a search "arrant, maliciously an$ "ithout reasonable cause, sho"s clearly the intent of &ongress to ma#e a $istinction as to the necessity for a search "arrant in the searching of private $"ellings an$ in the searching of automobiles or other roa$ vehicles, in the enforcement of the Prohibition Act. P. 26' %. !. 1 .

2. The (ourth Amen$ment $enounces only such searches or sei)ures as are unreasonable, an$ it is to be construe$ in the light of "hat "as $eeme$ an unreasonable search an$ sei)ure "hen it "as a$opte$, an$ in a manner "hich "ill conserve public interests as "ell as the interests an$ rights of in$ivi$ual citi)ens. P. 26' %. !. 1 '. 3. !earch "ithout a "arrant of an automobile, an$ sei)ure therein of li*uor sub+ect to sei)ure an$ $estruction un$er the Prohibition Act, $o not violate the Amen$ment, if ma$e upon probable cause, i.e., upon a belief, reasonably arising out of circumstances #no"n to the officer, that the vehicle contains such contraban$ li*uor. P. 26' %. !. 1 9. . ,arious acts of &ongress are cite$ to sho" that, practically since the beginning of the -overnment, the (ourth Amen$ment has been construe$ as recogni)ing a necessary $ifference bet"een a search for contraban$ in a store, $"elling.house, or other structure Page 26' %. !. 133 for the search of "hich a "arrant may rea$ily be obtaine$, an$ a search of a ship, "agon, automobile, or other vehicle "hich may be *uic#ly move$ out of the locality or +uris$iction in "hich the "arrant must be sought. P. 26' %. !. 1/0. /. !ection 26, Title 11, of the National Prohibition Act, provi$es that, "hen an officer 2shall $iscover any person in the act2 of transporting into3icating li*uor in any automobile, or other vehicle, in violation of la", it shall be his $uty to sei)e the li*uor an$ thereupon to ta#e possession of the vehicle an$ arrest the person in charge of it, an$ that, upon conviction of such person, the court shall or$er the li*uor $estroye$, an$, e3cept for goo$ cause sho"n, shall or$er a public sale, etc. of the other property sei)e$. Held: 4a5 That the primary purpose is the sei)ure an$ $estruction of the contraban$ li*uor, an$ the provisions for forfeiture of the vehicle an$ arrest of the transporter are merely inci$ental. P. 26' %. !. 1/3.

4b5 6ence, the right to search an automobile for illicit li*uor an$ to sei)e the li*uor, if foun$, an$ thereupon to sei)e the vehicle also an$ to arrest the offen$er, $oes not $epen$ upon the right to arrest the offen$er in the first instance, an$ therefore it is not $etermine$ by the $egree of his offence .. "hether a mis$emeanor un$er 7 29, Title 11 of the Act, because of being his first or secon$ offence, or a felony because it is his thir$, an$ the rule allo"ing arrest "ithout "arrant for mis$emeanor only "hen the offence is committe$ in the officer8s presence, but for a felony "hen the officer has reasonable cause to believe that the person arreste$ has committe$ a felony, is not the test of the vali$ity of such search an$ sei)ure. Pp. 26' %. !. 1//, 26' %. !. 1/6. 4c5 The sei)ure is legal if the officer, in stopping an$ searching the vehicle, has reasonable or probable cause for believing that contraban$ li*uor is being illegally transporte$ in it. P. 26' %. !. 1//. 4$5 The language of 7 26 .. "hen an officer shall 2$iscover 2 any person in the act of transporting, etc. .. $oes not limit him to "hat he learns of the contents of a passing automobile by the use of his senses at the time. P. 26' %. !. 1/9. 4e5 The section thus construe$ is consistent "ith the (ourth Amen$ment. P. 26' %. !. 1/9. 6. Probable cause hel$ to e3ist "here prohibition officers, "hile patrolling a high"ay much use$ in illegal transportation of li*uor, stoppe$ an$ searche$ an automobile upon the faith of information previously obtaine$ by them that the car an$ its occupants, i$entifie$ by the officers, "ere engage$ in the illegal business of 2bootlegging.2 P. 26' %. !. 1/9. Page 26' %. !. 13 '. :hen contraban$ li*uor, sei)e$ from an automobile an$ use$ in the conviction of those in charge of the transportation, "as sho"n at the trial to have been ta#en in a search +ustifie$ by probable cause, held that the &ourt8s refusal to return he li*uor on $efen$ants8 motion before trial, even if erroneous because probable cause "as not then proven, "as not a substantial reason for . reversing the conviction. P. 26' %. !. 162. 9. The &ourt notices +u$icially that -ran$ ;api$s is about 1/2 miles from <etroit, an$ that <etroit, an$ its neighborhoo$ along the <etroit ;iver, "hich is the international boun$ary, is one of the most active centers for intro$ucing illegally into this country spirituous li*uors for $istribution into the interior. P. 26' %. !. 160. Affi !ed. This is a "rit of error to the <istrict &ourt un$er !ection 239 of the =u$icial &o$e. The plaintiffs in error, hereafter to be calle$ the $efen$ants, -eorge &arroll an$ =ohn >iro, "ere in$icte$ an$ convicte$ for transporting in an automobile into3icating spirituous li*uor, to."it? 69 *uarts of so.calle$ bon$e$ "his#ey an$ gin, in violation of the National Prohibition Act. The groun$ on "hich they assail the conviction is that the trial court a$mitte$ in evi$ence t"o of the 69 bottles, one of "his#ey an$ one of gin, foun$ by searching the automobile. 1t is conten$e$ that the search an$ sei)ure "ere in violation of the (ourth Amen$ment, an$ therefore that use of the li*uor as evi$ence "as not proper. @efore the trial, a motion "as ma$e by the $efen$ants that all the li*uor sei)e$ be returne$ to the $efen$ant &arroll, "ho o"ne$ the automobile. This motion "as $enie$. The search an$ sei)ure "ere ma$e by &ronen"ett, !cully an$ Thayer, fe$eral prohibition agents, an$ one Peterson, a state officer, in <ecember, 1921, as the car "as going "est"ar$ on the high"ay bet"een <etroit an$ -ran$ ;api$s at

a point 16 miles outsi$e of -ran$ ;api$s. The facts lea$ing to the search an$ sei)ure "ere as follo"s? on !eptember 29th, &ronen"ett an$ !cully "ere in an apartment in -ran$ ;api$s. Three men came to that apartment, a man name$ >rus#a an$ the t"o $efen$ants, Page 26' %. !. 13/ &arroll an$ >iro. &ronen"ett "as intro$uce$ to them as one !taffor$, "or#ing in the Aichigan &hair &ompany in -ran$ ;api$s, "ho "ishe$ to buy three cases of "his#ey. The price "as fi3e$ at B13 a case. The three men sai$ they ha$ to go to the east en$ of -ran$ ;api$s to get the li*uor an$ that they "oul$ be bac# in half or three.*uarters of an hour. They "ent a"ay, an$ in a short time >rus#a came bac# an$ sai$ they coul$ not get it that night, that the man "ho ha$ it "as not in, but that they "oul$ $eliver it the ne3t $ay. They ha$ come to the apartment in an automobile #no"n as an Cl$smobile ;oa$ster, the number of "hich &ronen"ett then i$entifie$, a $i$ !cully. The propose$ ven$ors $i$ not return the ne3t $ay, an$ the evi$ence $isclose$ no e3planation of their failure to $o so. Cne may surmise that it "as suspicion of the real character of the propose$ purchaser, "hom &arroll subse*uently calle$ by his first name "hen arreste$ in <ecember follo"ing. &ronen"ett an$ his subor$inates "ere engage$ in patrolling the roa$ lea$ing from <etroit to -ran$ ;api$s, loo#ing for violations of the Prohibition Act. This seems to have been their regular tour of $uty. Cn the 6th of Cctober, &arroll an$ >iro, going east"ar$ from -ran$ ;api$s in the same Cl$smobile ;oa$ster, passe$ &ronen"ett an$ !cully some $istance out from -ran$ ;api$s. &ronen"ett calle$ to !cully, "ho "as ta#ing lunch, that the &arroll boys ha$ passe$ them going to"ar$ <etroit, an$ sought "ith !cully to catch up "ith them to see "here they "ere going. The officers follo"e$ as far as Dast Eansing, half "ay to <etroit, but there lost trace of them. Cn the 1/th of <ecember, some t"o months later, !cully an$ &ronen"ett, on their regular tour of $uty, "ith Peterson, the !tate officer, "ere going from -ran$ ;api$s to 1onia, on the roa$ to <etroit, "hen >iro an$ &arroll met an$ passe$ them in the same automobile, coming from the $irection of <etroit to -ran$ ;api$s. The government agents turne$ Page 26' %. !. 136 their car an$ follo"e$ the $efen$ants to a point some si3teen miles east of -ran$ ;api$s, "here they stoppe$ them an$ searche$ the car. They foun$ behin$ the upholstering of the seats, the filling of "hich ha$ been remove$, 69 bottles. These ha$ labels on them, part purporting to be certificates of Dnglish chemists that the contents "ere blen$e$ !cotch "his#eys, an$ the rest that the contents "ere -or$on gin ma$e in Eon$on. :hen an e3pert "itness "as calle$ to prove the contents, $efen$ants a$mitte$ the nature of them to be "his#ey an$ gin. :hen the $efen$ants "ere arreste$, &arroll sai$ to &ronen"ett, 2Ta#e the li*uor an$ give us one more chance an$ 1 "ill ma#e it right "ith you,2 an$ he pulle$ out a roll of bills, of "hich one "as for B10. Peterson an$ another too# the t"o $efen$ants an$ the li*uor an$ the car to -ran$ ;api$s, "hile &ronen"ett, Thayer an$ !cully remaine$ on the roa$ loo#ing for other cars of "hose coming they ha$ information. The officers "ere not anticipating that the $efen$ants "oul$ be coming through on the high"ay at that particular time, but "hen they met them there, they believe$ they "ere carrying li*uor, an$ hence the search, sei)ure an$ arrest. Page 26' %. !. 1 3 A;. &61D( =%!T1&D TA(T, after stating the case as above, $elivere$ the opinion of the &ourt.

The constitutional an$ statutory provisions involve$ in this case inclu$e the (ourth Amen$ment an$ the National Prohibition Act. The (ourth Amen$ment is in part as follo"s? 2The right of the people to be secure in their persons, houses, papers, an$ effects, against unreasonable searches an$ sei)ures, shall not be violate$, an$ no :arrants shall issue, but upon probable cause, supporte$ by Cath or affirmation, an$ particularly $escribing the place to be searche$, an$ the person, or things to be sei)e$.2 !ection 2/, Title 11, of the National Prohibition Act, c. 9/, 1 !tat. 30/, 31/, passe$ to enforce the Dighteenth

Amen$ment, ma#es it unla"ful to have or possess any li*uor inten$e$ for use in violating the Act, or "hich has been so use$, an$ provi$es that no property rights shall e3ist in such li*uor. A search "arrant may issue an$ such li*uor, "ith the containers thereof, may be sei)e$ un$er the "arrant an$ be ultimately $estroye$. The section further provi$es? 2No search "arrant shall issue to search any private $"elling occupie$ as such unless it is being use$ for the unla"ful sale of into3icating li*uor, or unless it is in part use$ for some business purpose such as a store, shop, saloon, restaurant, hotel, or boar$ing house. The term 8private $"elling8 shall be construe$ to inclu$e the room or rooms use$ an$ occupie$ not transiently but solely as Page 26' %. !. 1 a resi$ence in an apartment house, hotel, or boar$ing house.2 !ection 26, Title 11, un$er "hich the sei)ure herein "as ma$e, provi$es in part as follo"s? 2:hen the commissioner, his assistants, inspectors, or any officer of the la" shall $iscover any person in the act of transporting in violation of the la", into3icating li*uors in any "agon, buggy, automobile, "ater or air craft, or other vehicle, it shall be his $uty to sei)e any an$ all into3icating li*uors foun$ therein being transporte$ contrary to la". :henever into3icating li*uors transporte$ or possesse$ illegally shall be sei)e$ by an officer he shall ta#e possession of the vehicle an$ team or automobile, boat, air or "ater craft, or any other conveyance, an$ shall arrest any person in charge thereof.2 The section then provi$es that the court, upon conviction of the person so arreste$, shall or$er the li*uor $estroye$, an$, e3cept for goo$ cause sho"n, shall or$er a sale by public auction of the other property sei)e$, an$ that the procee$s shall be pai$ into the Treasury of the %nite$ !tates. @y !ection 6 of an Act supplemental to the National Prohibition Act, c. 13 , 2 !tat. 222, 223, it is provi$e$ that, if any officer or agent or employee of the %nite$ !tates engage$ in the enforcement of the Prohibition Act or this Amen$ment, 2shall search any private $"elling,2 as $efine$ in that Act, 2"ithout a "arrant $irecting such search,2 or 2shall "ithout a search "arrant maliciously an$ "ithout reasonable cause search any other buil$ing or property,2 he shall be guilty of a mis$emeanor an$ sub+ect to fine or imprisonment or both. 1n the passage of the supplemental Act through the !enate, Amen$ment No. 32, #no"n as the !tanley Amen$ment, "as a$opte$, the relevant part of "hich "as as follo"s? 2!ection 6. That any officer, agent or employee of the %nite$ !tates engage$ in the enforcement of this Act or

Page 26' %. !. 1 / the National Prohibition Act, or any other la" of the %nite$ !tates, "ho shall search or attempt to search the property or premises of any person "ithout previously securing a search "arrant, as provi$e$ by la", shall be guilty of a mis$emeanor an$ upon conviction thereof shall be fine$ not to e3cee$ B1000, or imprisone$ not to e3cee$ one year, or both so fine$ an$ imprisone$ in the $iscretion of the &ourt.2 This Amen$ment "as ob+ecte$ to in the 6ouse, an$ the =u$iciary &ommittee, to "hom it "as referre$, reporte$ to the 6ouse of ;epresentatives the follo"ing as a substitute. 2!ec. 6. That no officer, agent or employee of the %nite$ !tates, "hile engage$ in the enforcement of this Act, the National Prohibition Act, or any la" in reference to the manufacture or ta3ation of, or traffic in, into3icating li*uor, shall search any private $"elling "ithout a "arrant $irecting such search, an$ no such "arrant shall issue unless there is reason to believe such $"elling is use$ as a place in "hich li*uor is manufacture$ for sale or sol$. The term 8private $"elling8 shall be construe$ to inclu$e the room or rooms occupie$ not transiently, but solely as a resi$ence in an apartment house, hotel, or boar$ing house. Any violation of any provision of this paragraph shall be punishe$ by a fine of not to e3cee$ B1000 or imprisonment not to e3cee$ one year, or both such fine an$ imprisonment, in the $iscretion of the court.2 1n its report, the &ommittee spo#e in part as follo"s? 21t appeare$ to the committee that the effect of the !enate amen$ment No. 32, if agree$ to by the 6ouse, "oul$ greatly cripple the enforcement of the national prohibition act an$ "oul$ other"ise seriously interfere "ith the -overnment in the enforcement of many other la"s, as its scope is not limite$ to the prohibition la", Page 26' %. !. 1 6 but applies e*ually to all la"s "here prompt action is necessary. There are on the statute boo#s of the %nite$ !tates a number of la"s authori)ing search "ithout a search "arrant. %n$er the common la" an$ agreeably to the &onstitution, search may in many cases be legally ma$e "ithout a "arrant. The &onstitution $oes not forbi$ search, as some parties conten$, but it $oes forbi$ unreasonable search. This provision in regar$ to search is, as a rule, containe$ in the various !tate constitutions, but not"ithstan$ing that fact, search "ithout a "arrant is permitte$ in many cases, an$ especially is that true in the enforcement of li*uor legislation.2 2The !enate amen$ment prohibits all search or attempt to search any property or premises "ithout a search "arrant. The effect of that "oul$ necessarily be to prohibit all search, as no search can ta#e place if it is not on some property or premises.2 2Not only $oes this amen$ment prohibit search of any lan$s, but it prohibits the search of all property. 1t "ill prevent the search of the common bootlegger an$ his stoc# in tra$e, though caught an$ arreste$ in the act of violating the la". @ut "hat is perhaps more serious, it "ill ma#e it impossible to stop the rum running automobiles engage$ in li#e illegal traffic. 1t "oul$ ta#e from the officers the po"er that they absolutely must have to be of any service, for if they cannot search for li*uor "ithout a "arrant, they might as "ell be $ischarge$. 1t is impossible to get a "arrant to stop an automobile. @efore a "arrant coul$ be secure$, the automobile "oul$ be beyon$ the reach of the officer, "ith its loa$ of illegal li*uor $ispose$ of.2

The conference report resulte$, so far as the $ifference bet"een the t"o 6ouses "as concerne$, in provi$ing for the punishment of any officer, agent or employee of the -overnment "ho searches a 2private $"elling2 "ithout a "arrant, an$ for the punishment of any such officer, Page 26' %. !. 1 ' etc., "ho searches any 2other buil$ing or property2 "here, an$ only "here, he ma#es the search "ithout a "arrant 2maliciously an$ "ithout probable cause.2 1n other "or$s, it left the "ay open for searching an automobile, or vehicle of transportation, "ithout a "arrant, if the search "as not malicious or "ithout probable cause. The intent of &ongress to ma#e a $istinction bet"een the necessity for a search "arrant in the searching of private $"ellings an$ in that of automobiles an$ other roa$ vehicles is the enforcement of the Prohibition Act is thus clearly establishe$ by the legislative history of the !tanley Amen$ment. 1s such a $istinction consistent "ith the (ourth Amen$mentF :e thin# that it is. The (ourth Amen$ment $oes not $enounce all searches or sei)ures, but only such as are unreasonable. The lea$ing case on the sub+ect of search an$ sei)ure is "#yd $. U%i&ed S&a&es, 116 %. !. 616. An Act of &ongress of =une 22, 19' , authori)e$ a court of the %nite$ !tates, in revenue cases, on motion of the government attorney, to re*uire the $efen$ant to pro$uce in court his private boo#s, invoices an$ papers on pain in case of refusal of having the allegations of the attorney in his motion ta#en as confesse$. This "as hel$ to be unconstitutional an$ voi$ as applie$ to suits for penalties or to establish a forfeiture of goo$s, on the groun$ that, un$er the (ourth Amen$ment, the compulsory pro$uction of invoices to furnish evi$ence for forfeiture of goo$s constitute$ an unreasonable search even "here ma$e upon a search "arrant, an$ that it "as also a violation of the (ifth Amen$ment, in that it compelle$ the $efen$ant in a criminal case to pro$uce evi$ence against himself or be in the attitu$e of confessing his guilt. 1n Wee's $. U%i&ed S&a&es, 232 %. !. 393, it "as hel$ that a court in a criminal prosecution coul$ not retain letters of the accuse$ sei)e$ in his house, in his absence an$ "ithout his authority, by a %nite$ !tates marshal Page 26' %. !. 1 9 hol$ing no "arrant for his arrest an$ none for the search of his premises, to be use$ as evi$ence against him, the accuse$ having ma$e timely application to the court for an or$er for the return of the letters. 1n Sil$e &h# %e (u!be C#!)a%y $. U%i&ed S&a&es, 2/1 %. !. 39/, a "rit of error "as brought to reverse a +u$gment of contempt of the <istrict &ourt, fining the company an$ imprisoning one !ilverthorne, its presi$ent, until he shoul$ purge himself of contempt in not pro$ucing boo#s an$ $ocuments of the company before the gran$ +ury to prove violation of the statutes of the %nite$ !tates by the company an$ !ilverthorne. !ilverthorne ha$ been arreste$, an$, "hile un$er arrest, the marshal ha$ gone to the office of the company "ithout a "arrant an$ ma$e a clean s"eep of all boo#s, papers an$ $ocuments foun$ there, an$ ha$ ta#en copies an$ photographs of the papers. The <istrict &ourt or$ere$ the return of the originals, but impoun$e$ the photographs an$ copies. This "as hel$ to be an unreasonable search of the property an$ possessions of the corporation an$ a violation of the (ourth Amen$ment, an$ the +u$gment for contempt "as reverse$. 1n G#uled $. U%i&ed S&a&es, 2// %. !. 299, the obtaining through stealth by a representative of the -overnment, from the office of one suspecte$ of $efrau$ing the -overnment, of a paper "hich ha$ no pecuniary value in itself, but "as

only to be use$ as evi$ence against its o"ner, "as hel$ to be a violation of the (ourth Amen$ment. 1t "as further hel$ that, "hen the paper "as offere$ in evi$ence an$ $uly ob+ecte$ to, it must be rule$ ina$missible because obtaine$ through an unreasonable search an$ sei)ure, an$ also in violation of the (ifth Amen$ment because "or#ing compulsory incrimination. 1n A!#s $. U%i&ed S&a&es, 2// %. !. 313, it "as hel$ that, "here conceale$ li*uor "as foun$ by government officers "ithout a search "arrant in the home of the $efen$ant, Page 26' %. !. 1 9 in his absence, an$ after a $eman$ ma$e upon his "ife, it "as ina$missible as evi$ence against the $efen$ant because ac*uire$ by an unreasonable sei)ure. 1n none of the cases cite$ is there any ruling as to the vali$ity un$er the (ourth Amen$ment of a sei)ure "ithout a "arrant of contraban$ goo$s in the course of transportation an$ sub+ect to forfeiture or $estruction. Cn reason an$ authority, the true rule is that, if the search an$ sei)ure "ithout a "arrant are ma$e upon probable cause, that is, upon a belief, reasonably arising out of circumstances #no"n to the sei)ing officer, that an automobile or other vehicle contains that "hich by la" is sub+ect to sei)ure an$ $estruction, the search an$ sei)ure are vali$. The (ourth Amen$ment is to be construe$ in the light of "hat "as $eeme$ an unreasonable search an$ sei)ure "hen it "as a$opte$, an$ in a manner "hich "ill conserve public interests as "ell as the interests an$ rights of in$ivi$ual citi)ens. 1n "#yd $. U%i&ed S&a&es, 116 %. !. 616, as alrea$y sai$, the $ecision $i$ not turn on "hether a reasonable search might be ma$e "ithout a "arrantG but for the purpose of sho"ing the principle on "hich the (ourth Amen$ment procee$s, an$ to avoi$ any misapprehension of "hat "as $eci$e$, the &ourt, spea#ing through Ar. =ustice @ra$ley, use$ language "hich is of particular significance an$ applicability here. 1t "as there sai$ 4page 116 %. !. 6235? 2The search for an$ sei)ure of stolen or forfeite$ goo$s, or goo$s liable to $uties an$ conceale$ to avoi$ the payment thereof, are totally $ifferent things from a search for an$ sei)ure of a man8s private boo#s an$ papers for the purpose of obtaining information therein containe$, or of using them as evi$ence against him. The t"o things $iffer &#&# *#el#. 1n the one case, the government is entitle$ to the possession of the propertyG in the other, it is not. The sei)ure of stolen goo$s is authori)e$ by the Page 26' %. !. 1/0 common la", an$ the sei)ure of goo$s forfeite$ for a breach of the revenue la"s, or conceale$ to avoi$ the $uties payable on them, has been authori)e$ by Dnglish statutes for at least t"o centuries past, an$ the li#e sei)ures have been authori)e$ by our o"n revenue acts from the commencement of the government. The first statute passe$ by &ongress to regulate the collection of $uties, the act of =uly 31, 1'99, 1 !tat. 29, 3, contains provisions to this effect. As this act "as passe$ by the same &ongress "hich propose$ for a$option the original amen$ments to the &onstitution, it is clear that the members of that bo$y $i$ not regar$ searches an$ sei)ures of this #in$ as 8unreasonable,8 an$ they are not embrace$ "ithin the prohibition of the amen$ment. !o, also, the supervision authori)e$ to be e3ercise$ by officers of the revenue over the manufacture or custo$y of e3cisable articles, an$ the entries thereof in boo#s re*uire$ by la" to be #ept for their inspection, are necessarily e3cepte$ out of the category of

unreasonable searches an$ sei)ures. !o, also, the la"s "hich provi$e for the search an$ sei)ure of articles an$ things "hich it is unla"ful for a person to have in his possession for the purpose of issue or $isposition, such as counterfeit coin, lottery tic#ets, implements of gambling, Hc., are not "ithin this category. C#!!#%+eal&h $. Da%a, 2 Aet. 4Aass.5 329. Aany other things of this character might be enumerate$.2 1t is note"orthy that the t"enty.fourth section of the Act of 1'99, to "hich the &ourt there refers, provi$es? 2That every collector, naval officer an$ surveyor, or other person specially appointe$ by either of them for that purpose, shall have full po"er an$ authority, to enter any ship or vessel, in "hich they shall have reason to suspect any goo$s, "ares or merchan$ise sub+ect to $uty shall be conceale$, an$ therein to search for, sei)e, an$ secure any such goo$s, "ares or merchan$ise, an$ if they shall have cause to suspect a concealment thereof, in any Page 26' %. !. 1/1 particular $"elling.house, store, buil$ing, or other place, they or either of them shall, upon application on oath or affirmation to any +ustice of the peace, be entitle$ to a "arrant to enter such house, store, or other place 4in the $ay time only5 an$ there to search for such goo$s, an$ if any shall be foun$, to sei)e an$ secure the same for trial, an$ all such goo$s, "ares, an$ merchan$ise, on "hich the $uties shall not have been pai$ or secure$, shall be forfeite$.2 Ei#e provisions "ere containe$ in the Act of August , 1'90, c. 3/, !ections /1, 1 !tat. 1 /, 1'0G in !ection 2' of the

Act of (ebruary 19, 1'93, c. 9, 1 !tat. 30/, 31/, an$ in !ections 69.'1 of the Act of Aarch 2, 1'99, c. 22, 1 !tat. 62', 6'', 6'9. Thus, contemporaneously "ith the a$option of the (ourth Amen$ment, "e fin$ in the first &ongress, an$ in the follo"ing !econ$ an$ (ourth &ongresses, a $ifference ma$e as to the necessity for a search "arrant bet"een goo$s sub+ect to forfeiture, "hen conceale$ in a $"elling house or similar place, an$ li#e goo$s in course of transportation an$ conceale$ in a movable vessel "here they rea$ily coul$ be put out of reach of a search "arrant. C#!)a e Hes&e $. U%i&ed S&a&es, 26/ %. !. /'. Again, by the secon$ section of the Act of Aarch 3, 191/, 3 !tat. 231, 232, it "as ma$e la"ful for customs officers not only to boar$ an$ search vessels "ithin their o"n an$ a$+oining $istricts, but also to stop, search an$ e3amine any vehicle, beast or person on "hich or "hom they shoul$ suspect there "as merchan$ise "hich "as sub+ect to $uty or ha$ been intro$uce$ into the %nite$ !tates in any manner contrary to la", "hether by the person in charge of the vehicle or beast or other"ise, an$ if they shoul$ fin$ any goo$s, "ares or merchan$ise thereon, "hich they ha$ probable cause to believe ha$ been so unla"fully brought into the country, to sei)e an$ secure the same, an$ the vehicle or beast as "ell, for trial Page 26' %. !. 1/2 an$ forfeiture. This Act "as rene"e$ April 2', 1916, 3 !tat. 31/, for a year an$ e3pire$. The Act of (ebruary 29, 196/, revive$ !ection 2 of the Act of 191/, above $escribe$, c. 6', 13 !tat. in the thir$ section of the Act of =uly 19, 1966, c. 201, 1 1. The substance of this section "as reenacte$

!tat. 1'9, an$ "as thereafter embo$ie$ in the ;evise$

!tatutes as !ection 3061. Neither !ection 3061 nor any of its earlier counterparts has ever been attac#e$ as unconstitutional. 1n$ee$, that section "as referre$ to an$ treate$ a operative by this &ourt in C#&,hause% $. Na, #, 10' %. !. 21/, 10' %. !. 219. See als# U%i&ed S&a&es $. O%e "la*' H# se, 129 (e$. 16'.

Again, by !ection 21 0 of the ;evise$ !tatutes, any 1n$ian agent, sub.agent or comman$er of a military post in the 1n$ian &ountry, having reason to suspect or being informe$ that any "hite person or 1n$ian is about to intro$uce, or has intro$uce$, any spirituous li*uor or "ine into the 1n$ian &ountry, in violation of la", may cause the boats, stores, pac#ages, "agons, sle$s an$ places of $eposit of such person to be searche$, an$ if any li*uor is foun$ therein, then it, together "ith the vehicles, shall be sei)e$ an$ procee$e$ against by libel in the proper court an$ forfeite$. !ection 21 0 "as the outgro"th of the Act of Aay 6, 1922, c. /9, 3 !tat. 692, authori)ing 1n$ian agents to cause the goo$s of tra$ers in the 1n$ian &ountry to be searche$ upon suspicion or information that ar$ent spirits "ere being intro$uce$ into the 1n$ian &ountry, to be sei)e$ an$ forfeite$ if foun$, an$ of the Act of =une 30, 193 , !ection 20, c. 161, !tat.

'29, '32, enabling an 1n$ian agent having reason to suspect any person of having intro$uce$ or being about to intro$uce li*uors into the 1n$ian &ountry to cause the boats, stores or places of $eposit of such person to be searche$ an$ the li*uor foun$ forfeite$. This &ourt recogni)e$ the statute of 1922 as +ustifying such a search an$ sei)ure in A!e i*a% Fu C#. $. U%i&ed S&a&es, 2 Pet. 3/9. @y the 1n$ian Page 26' %. !. 1/3 Appropriation Act of Aarch 2, 191', c. 1 6, 39 !tat. 969, 9'0, automobiles use$ in intro$ucing or attempting to intro$uce into3icants into the 1n$ian Territory may be sei)e$, libele$ an$ forfeite$ as provi$e$ in the ;evise$ !tatutes, !ection 21 0. An$ again, in Alas#a, by !ection 1' of the Act of Aarch 3, 1999, c. 29, 30 !tat. 12/3, 1290, it is provi$e$ that

collectors an$ $eputy collectors, or any person authori)e$ by them in "riting, shall be given po"er to arrest persons an$ sei)e vessels an$ merchan$ise in Alas#a liable to fine, penalties or forfeiture un$er the Act an$ to #eep an$ $eliver the same, an$ the Attorney -eneral, in construing the Act, a$vise$ the -overnment? 21f your agents reasonably suspect that a violation of la" has occurre$, in my opinion they have po"er to search any vessel "ithin the 3.mile limit accor$ing to the practice of customs officers "hen acting un$er !ection 30/9 of the ;evise$ !tatutes, an$ to sei)e such vessels.2 26 Cpinions Attorneys -eneral 2 3. :e have ma$e a some"hat e3ten$e$ reference to these statutes to sho" that the guaranty of free$om from unreasonable searches an$ sei)ures by the (ourth Amen$ment has been construe$, practically since the beginning of the -overnment, as recogni)ing a necessary $ifference bet"een a search of a store, $"elling house or other structure in respect of "hich a proper official "arrant rea$ily may be obtaine$, an$ a search of a ship, motor boat, "agon or automobile, for contraban$ goo$s, "here it is not practicable to secure a "arrant because the vehicle can be *uic#ly move$ out of the locality or +uris$iction in "hich the "arrant must be sought. 6aving thus establishe$ that contraban$ goo$s conceale$ an$ illegally transporte$ in an automobile or other vehicle may be searche$ for "ithout a "arrant, "e come no" to consi$er un$er "hat circumstances such search may be ma$e. 1t "oul$ be intolerable an$ unreasonable Page 26' %. !. 1/ if a prohibition agent "ere authori)e$ to stop every automobile on the chance of fin$ing li*uor, an$ thus sub+ect all persons la"fully using the high"ays to the inconvenience an$ in$ignity of such a search. Travelers may be so stoppe$

in crossing an international boun$ary because of national self protection reasonably re*uiring one entering the country to i$entify himself as entitle$ to come in, an$ his belongings as effects "hich may be la"fully brought in. @ut those la"fully "ithin the country, entitle$ to use the public high"ays, have a right to free passage "ithout interruption or search unless there is #no"n to a competent official authori)e$ to search, probable cause for believing that their vehicles are carrying contraban$ or illegal merchan$ise. !ection 26, Title 11, of the National Prohibition Act, li#e the secon$ section of the Act of 1'99, for the searching of vessels, li#e the provisions of the Act of 191/, an$ !ection 3061, ;evise$ !tatutes, for searching vehicles for smuggle$ goo$s, an$ li#e the Act of 1922, an$ that of 193 an$

!ection 21 0, ;.!., an$ the Act of 191' for the search of vehicles an$ automobiles for li*uor smuggle$ into the 1n$ian &ountry, "as enacte$ primarily to accomplish the sei)ure an$ $estruction of contraban$ goo$sG secon$ly, the automobile "as to be forfeite$, an$ thir$ly, the $river "as to be arreste$. %n$er !ection 29, Title 11, of the Act the latter might be punishe$ by not more than B/00 fine for the first offense, not more than B1,000 fine or 90 $ays8 imprisonment for the secon$ offense, an$ by a fine of B/00 or more an$ by not more than 2 years8 imprisonment for the thir$ offense. Thus, he is to be arreste$ for a mis$emeanor for his first an$ secon$ offenses an$ for a felony if he offen$s the thir$ time. The main purpose of the Act obviously "as to $eal "ith the li*uor an$ its transportation an$ to $estroy it. The mere manufacture of li*uor can $o little to $efeat the policy of the Dighteenth Amen$ment an$ the Prohibition Act, unless the forbi$$en Page 26' %. !. 1// pro$uct can be $istribute$ for illegal sale an$ use. !ection 26 "as inten$e$ to reach an$ $estroy the forbi$$en li*uor in transportation, an$ the provisions for forfeiture of the vehicle an$ the arrest of the transporter "ere inci$ental. The rule for $etermining "hat may be re*uire$ before a sei)ure may be ma$e by a competent sei)ing official is not to be $etermine$ by the character of the penalty to "hich the transporter may be sub+ecte$. %n$er !ection 29, Title 11, of the Prohibition Act, the &ommissioner of 1nternal ;evenue, his assistants, agents an$ inspectors are to have the po"er an$ protection in the enforcement of the Act conferre$ by the e3isting la"s relating to the manufacture or sale of into3icating li*uors. Cfficers "ho sei)e un$er !ection 26 of the Prohibition Act are therefore protecte$ by !ection 9'0 of the ;evise$ !tatutes, provi$ing that? 2:hen, in any prosecution commence$ on account of the sei)ure of any vessel, goo$s, "ares, or merchan$ise, ma$e by any collector or other officer, un$er any Act of &ongress authori)ing such sei)ure, +u$gment is ren$ere$ for the claimant, but it appears to the court that there "as reasonable cause of sei)ure, the court shall cause a proper certificate thereof to be entere$, an$ the claimant shall not, in such case, be entitle$ to costs, nor shall the person "ho ma$e the sei)ure, nor the prosecutor, be liable to suit or +u$gment on account of such suit or

prosecution? - #$ided, That the vessel, goo$s, "ares, or merchan$ise be, after +u$gment, forth"ith returne$ to such claimant or his agent.2 1t follo"s from this that, if an officer sei)es an automobile or the li*uor in it "ithout a "arrant an$ the facts as subse*uently $evelope$ $o not +ustify a +u$gment of con$emnation an$ forfeiture, the officer may escape costs or a suit for $amages by a sho"ing that he ha$ reasonable or probable cause for the sei)ure. S&a*ey $. E!e y, 9' %. !. 6 2. The measure of legality of such a sei)ure is, Page 26' %. !. 1/6

therefore, that the sei)ing officer shall have reasonable or probable cause for believing that the automobile "hich he stops an$ sei)es has contraban$ li*uor therein "hich is being illegally transporte$. :e here fin$ the line of $istinction bet"een legal an$ illegal sei)ures of li*uor in transport in vehicles. 1t is certainly a reasonable $istinction. 1t gives the o"ner of an automobile or other vehicle sei)e$ un$er !ection 26, in absence of probable cause, a right to have restore$ to him the automobile, it protects him un$er the Wee's an$A!#s cases from use of the li*uor as evi$ence against him, an$ it sub+ects the officer ma#ing the sei)ures to $amages. Cn the other han$, in a case sho"ing probable cause, the -overnment an$ its officials are given the opportunity "hich they shoul$ have, to ma#e the investigation necessary to trace reasonably suspecte$ contraban$ goo$s an$ to sei)e them. !uch a rule fulfills the guaranty of the (ourth Amen$ment. 1n cases "here the securing of a "arrant is reasonably practicable, it must be use$, an$ "hen properly supporte$ by affi$avit an$ issue$ after +u$icial approval, protects the sei)ing officer against a suit for $amages. 1n cases "here sei)ure is impossible e3cept "ithout "arrant, the sei)ing officer acts unla"fully an$ at his peril unless he can sho" the court probable cause. U%i&ed S&a&es $. .a)la%, 296 (e$. 963, 9'2. @ut "e are presse$ "ith the argument that, if the search of the automobile $iscloses the presence of li*uor an$ lea$s un$er the statute to the arrest of the person in charge of the automobile, the right of sei)ure shoul$ be limite$ by the common la" rule as to the circumstances +ustifying an arrest "ithout "arrant for a mis$emeanor. The usual rule is that a police officer may arrest "ithout "arrant one believe$ by the officer upon reasonable cause to have been guilty of a felony, an$ that he may only arrest "ithout a "arrant one guilty of mis$emeanor if committe$ Page 26' %. !. 1/' in his presence. .u &, $. M#ffi&&, 11/ %. !. 9'G El' $. U%i&ed S&a&es, 1'' %. !. /29. The rule is sometimes e3presse$ as follo"s? 21n cases of mis$emeanor, a peace officer, li#e a private person, has at common la" no po"er of arresting "ithout a "arrant e3cept "hen a breach of the peace has been committe$ in his presence or there is reasonable groun$ for supposing that a breach of peace is about to be committe$ or rene"e$ in his presence.2 6alsbury8s Ea"s of Dnglan$, ,ol. 9, part 111, 612. The reason for arrest for mis$emeanors "ithout "arrant at common la" "as promptly to suppress breaches of the peace, 1 !tephen, 6istory of &riminal Ea", 193, "hile the reason for arrest "ithout "arrant on a reliable report of a felony "as because the public safety an$ the $ue apprehension of criminals charge$ "ith heinous offenses re*uire$ that such arrests shoul$ be ma$e at once "ithout "arrant. R#ha% $. Sa+a%, / &ush. 291. The argument for $efen$ants is that, as the mis$emeanor to +ustify arrest "ithout "arrant must be committe$ in the presence of the police officer, the offense is not committe$ in his presence unless he can by his senses $etect that the li*uor is being transporte$, no matter ho" reliable his previous information by "hich he can i$entify the automobile as loa$e$ "ith it. El #d $. M#ss, 2'9 (e$. 123G Hu/hes $. S&a&e, 1 / Tenn. / .

!o it is that, un$er the rule conten$e$ for by $efen$ants, the li*uor, if carrie$ by one "ho has been alrea$y t"ice convicte$ of the same offense, may be sei)e$ on information other than the senses, "hile, if he has been only once convicte$, it may not be sei)e$ unless the presence of the li*uor is $etecte$ by the senses as the automobile

concealing it rushes by. This is certainly a very unsatisfactory line of $ifference "hen the main ob+ect of the section is to forfeit an$ suppress the li*uor, the arrest of the in$ivi$ual being only inci$ental, as sho"n by the lightness Page 26' %. !. 1/9 of the penalty. See C#!!#%+eal&h $. S& ee&, 3 Pa.<ist. H &o. ;eports, '93. 1n Dnglan$ at the common la", the $ifference in punishment bet"een felonies an$ mis$emeanors "as very great. %n$er our present fe$eral statutes, it is much less important, an$ &ongress may e3ercise a relatively "i$e $iscretion in classing particular offenses as felonies or mis$emeanors. As the main purpose of !ection 26 "as sei)ure an$ forfeiture, it is not so much the o"ner as the property that offen$s. A/%e+ $. Hay!es,1 1 (e$. 631, 6 1. The language of the section provi$es for sei)ure "hen the officer of the la" 2$iscovers2 anyone in the act of transporting the li*uor by automobile or other vehicle. &ertainly it is a very narro" an$ technical construction of this "or$ "hich "oul$ limit it to "hat the officer sees, hears or smells as the automobile rolls by, an$ e3clu$e therefrom, "hen he i$entifies the car, the convincing information that he may previously have receive$ as to the use being ma$e of it. :e $o not thin# such a nice $istinction is applicable in the present case. :hen a man is legally arreste$ for an offense, "hatever is foun$ upon his person or in his control "hich it is unla"ful for him to have an$ "hich may be use$ to prove the offense may be sei)e$ an$ hel$ as evi$ence in the prosecution. Wee's $. U%i&ed S&a&es, 232 %. !. 393,232 %. !. 392G Dill#% $. O0" ie% a%d Da$is, 16 &o3. &.&. 2 /G Ge&*hell $. -a/e, 103 Ae. 39'G .%eela%d $. C#%%ally, '0 -a. 2 G 1 @ishop, &riminal Proce$ure, !ec. 211G 1 :harton, &riminal Proce$ure 410th e$ition5, !ec. 9'. The argument of $efen$ants is base$ on the theory that the sei)ure in this case can only be thus +ustifie$. 1f their theory "ere soun$, their conclusion "oul$ be. The vali$ity of the sei)ure then "oul$ turn "holly on the vali$ity of the arrest "ithout a sei)ure. @ut the theory is unsoun$. The right to search an$ the vali$ity of the sei)ure are not $epen$ent on the right to arrest. They are $epen$ent on the reasonable cause the sei)ing officer Page 26' %. !. 1/9 has for belief that the contents of the automobile offen$ against the la". The sei)ure in such a procee$ing comes before the arrest, as !ection 26 in$icates. 1t is true that !ection 26, Title 11, provi$es for imme$iate procee$ings against the person arreste$, an$ that, upon conviction, the li*uor is to be $estroye$ an$ the automobile or other vehicle is to be sol$, "ith the saving of the interest of a lienor "ho $oes not #no" of its unla"ful useG but it is evi$ent that, if the person arreste$ is ignorant of the contents of the vehicle, or if he escapes, procee$ings can be ha$ against the li*uor for $estruction or other $isposition un$er !ection 2/ of the same title. The character of the offense for "hich, after the contraban$ li*uor is foun$ an$ sei)e$, the $river can be prosecute$ $oes not affect the vali$ity of the sei)ure. This conclusion is in #eeping "ith the re*uirements of the (ourth Amen$ment an$ the principles of search an$ sei)ure of contraban$ forfeitable property, an$ it is a "ise one, because it leaves the rule one "hich is easily applie$ an$ un$erstoo$ an$ is uniform.H#lb*' $. S&a&e, 106 Chio !t.19/, accor$s "ith this conclusion. Ash $. U%i&ed S&a&es,299 (e$. 2'' an$ Mila! $. U%i&ed S&a&es, 296 (e$. 629, $ecisions by the &ircuit &ourt of Appeals for the fourth circuit, ta#e the same vie". The Ash case is very similar in its facts to the case at bar, an$ both "ere by the same court "hich $eci$e$ S%yde $. U%i&ed S&a&es, 29/ (e$. 1, cite$ for the $efen$ants. See als# -a ' $. U%i&ed S&a&es 41st &.&.A.5 29 (e$. ''6, '93, an$ (a!be & $. U%i&ed S&a&es, 49th &.&.A.5 292 (e$. 13.

(inally, "as there probable causeF 1n The A)#ll#%, 9 :heat. 362, the *uestion "as "hether the sei)ure of a (rench vessel at a particular place "as upon probable cause that she "as there for the purpose of smuggling. 1n this $iscussion, Ar. =ustice !tory, "ho $elivere$ the +u$gment of the &ourt, sai$ 4page 22 %. !. 3' 5? 21t has been very +ustly observe$ at the bar that the &ourt is boun$ to ta#e notice of public facts an$ geographical Page 26' %. !. 160 positions, an$ that this remote part of the country has been infeste$, at $ifferent perio$s, by smugglers, is a matter of general notoriety, an$ may be gathere$ from the public $ocuments of the government.2 :e #no" in this "ay that -ran$ ;api$s is about 1/2 miles from <etroit, an$ that <etroit an$ its neighborhoo$ along the <etroit ;iver, "hich is the 1nternational @oun$ary, is one of the most active centers for intro$ucing illegally into this country spirituous li*uors for $istribution into the interior. 1t is obvious from the evi$ence that the prohibition agents "ere engage$ in a regular patrol along the important high"ays from <etroit to -ran$ ;api$s to stop an$ sei)e li*uor carrie$ in automobiles. They #ne" or ha$ convincing evi$ence to ma#e them believe that the &arroll boys, as they calle$ them, "ere so.calle$ 2bootleggers2 in -ran$ ;api$s, i.e., that they "ere engage$ in plying the unla"ful tra$e of selling such li*uor in that city. The officers ha$ soon after note$ their going from -ran$ ;api$s half "ay to <etroit, an$ attempte$ to follo" them to that city to see "here they "ent, but they escape$ observation. T"o months later, these officers su$$enly met the same men on their "ay "est"ar$, presumably from <etroit. The partners in the original combination to sell li*uor in -ran$ ;api$s "ere together in the same automobile they ha$ been in the night "hen they trie$ to furnish the "his#y to the officers "hich "as thus i$entifie$ as part of the firm e*uipment. They "ere coming from the $irection of the great source of supply for their stoc# to -ran$ ;api$s, "here they plie$ their tra$e. That the officers, "hen they sa" the $efen$ants, believe$ that they "ere carrying li*uor "e can have no $oubt, an$ "e thin# it is e*ually clear that they ha$ reasonable cause for thin#ing so. Dmphasis is put by $efen$ants8 counsel on the statement ma$e by one of the officers that they "ere not loo#ing for $efen$ants at the particular time "hen they appeare$. :e $o not perceive that it has any "eight. As soon as they $i$ appear, Page 26' %. !. 161 the officers "ere entitle$ to use their reasoning faculties upon all the facts of "hich they ha$ previous #no"le$ge in respect to the $efen$ants. The necessity for probable cause in +ustifying sei)ures on lan$ or sea, in ma#ing arrests "ithout "arrant for past felonies, an$ in malicious prosecution an$ false imprisonment cases has le$ to fre*uent $efinition of the phrase. 1n S&a*ey $. E!e y, 9' %. !. 6 2, 9' %. !. 6 /, a suit for $amages for sei)ure by a collector, this &ourt $efine$ probable cause as follo"s? 21f the facts an$ circumstances before the officer are such as to "arrant a man of pru$ence an$ caution in believing that the offense has been committe$, it is sufficient.2 (#*'e $. U%i&ed S&a&es, ' &ranch 339G The Ge# /e, 1 Aason, 2 G The Th#!)s#%, 3 :all. 1//. 1t "as lai$ $o"n by &hief =ustice !ha", in C#!!#%+eal&h $. Ca ey, 12 &ush. 2 6, 2/1 that

2if a constable or other peace officer arrest a person "ithout a "arrant, he is not boun$ to sho" in his +ustification a felony actually committe$, to ren$er the arrest la"fulG but if he suspects one on his o"n #no"le$ge of facts, or on facts communicate$ to him by others, an$ thereupon he has reasonable groun$ to believe that the accuse$ has been guilty of felony, the arrest is not unla"ful.2 C#!!#%+eal&h $. -hel)s, 209 Aass. 396G R#ha% $. Sa+i%, / &ush. 291, 29/. 1nM*Ca &hy $. De A !i&, 99 Pa. !t. 63, the !upreme &ourt of Pennsylvania sums up the $efinition of probable cause in this "ay 4page 695? 2The substance of all the $efinitions is a reasonable groun$ for belief in guilt.2 1n the case of the Di e*&# Ge%e al $. .as&e%bau!, 263 %. !. 2/, "hich "as a suit for false imprisonment, it "as sai$ by this &ourt 4page 263 %. !. 295? 2@ut, as "e have seen, goo$ faith is not enough to constitute probable cause. That faith must be groun$e$ on facts "ithin #no"le$ge of the <irector -eneral8s agent, Page 26' %. !. 162 "hich in the +u$gment of the court "oul$ ma#e his faith reasonable.2 See als# Mu%% $. e Ne!#u s, 3 :ash.&.&. 3'. 1n the light of these authorities, an$ "hat is sho"n by this recor$, it is clear the officers here ha$ +ustification for the search an$ sei)ure. This is to say that the facts an$ circumstances "ithin their #no"le$ge an$ of "hich they ha$ reasonably trust"orthy information "ere sufficient, in themselves, to "arrant a man of reasonable caution in the belief that into3icating li*uor "as being transporte$ in the automobile "hich they stoppe$ an$ searche$. &ounsel finally argue that the $efen$ants shoul$ be permitte$ to escape the effect of the conviction because the court refuse$ on motion to $eliver them the li*uor "hen, as they say, the evi$ence a$$uce$ on the motion "as much less than that sho"n on the trial, an$ $i$ not sho" probable cause. The recor$ $oes not ma#e it clear "hat evi$ence "as pro$uce$ in support of or against the motion. @ut, apart from this, "e thin# the point is "ithout substance here. 1f the evi$ence given on the trial "as sufficient, as "e thin# it "as, to sustain the intro$uction of the li*uor as evi$ence, it is immaterial that there "as an ina$e*uacy of evi$ence "hen application "as ma$e for its return. A conviction on a$e*uate an$ a$missible evi$ence shoul$ not be set ai$e on such a groun$. The "hole matter "as gone into at the trial, so no right of the $efen$ants "as infringe$. &ounsel for the -overnment conten$ that >iro, the $efen$ant "ho $i$ not o"n the automobile, coul$ not complain of the violation of the (ourth Amen$ment in the use of the li*uor as evi$ence against him, "hatever the vie" ta#en as to &arroll8s rights. Cur conclusion as to the "hole case ma#es it unnecessary for us to $iscuss this aspect of it. The +u$gment is Affi !ed. Page 26' %. !. 163 A;. =%!T1&D A&>DNNA, before his retirement, concurre$ in this opinion.

The separate opinion of A;. =%!T1&D Ac;DINCE<! concurre$ in by A;. =%!T1&D !%T6D;EAN<. 1. The $amnable character of the 2bootlegger8s2 business shoul$ not close our eyes to the mischief "hich "ill surely follo" any attempt to $estroy it by un"arrante$ metho$s. 2To press for"ar$ to a great principle by brea#ing through every other great principle that stan$s in the "ay of its establishmentG . . . in short, to procure an imminent goo$ by means that are unla"ful, is as little consonant to private morality as to public +ustice.2 !ir :illiam !cott, The (#uis, 2 <olson 210, 2/'. :hile *uietly $riving an or$inary automobile along a much fre*uente$ public roa$, plaintiffs in error "ere arreste$ by (e$eral officers "ithout a "arrant an$ upon mere suspicion .. ill.foun$e$, as 1 thin#. The officers then searche$ the machine an$ $iscovere$ carefully secrete$ "his#y, "hich "as sei)e$ an$ thereafter use$ as evi$ence against plaintiffs in error "hen on trial for transporting into3icating li*uor contrary to the ,olstea$ Act 4c. 9/, 1 !tat. 30/5. They

maintain that both arrest an$ sei)ure "ere unla"ful, an$ that use of the li*uor as evi$ence violate$ their constitutional rights. This is not a procee$ing to forfeit sei)e$ goo$sG nor is it an action against the sei)ing officer for a tort. &ases li#e the follo"ing are not controlling? C #+ell $. M0Fad#%, 9 &ranch 9 , 12 %. !. 99G U%i&ed S&a&es $. 1234 "a/s #f C#ffee, 9 &ranch 399, 03 Jargument of counsel .. omitte$K, 12 %. !. 0/G O&is $. Wa&'i%s, 9 &ranch 339G Gels&#% $. H#y&, 3 %.

:heat. 2 6, 16 %. !. 310, 16 %. !. 319G W##d $. U%i&ed S&a&es, 16 Pet. 3 2G Tayl# $. U%i&ed S&a&es, 3 6o". 19',

!. 20/. They turne$ upon e3press provisions of applicable Acts of &ongressG they $i$ not involve the point no" presente$, an$ affor$ little, if any, assistance to"ar$ its proper solution. The ,olstea$ Act $oes not, in terms, authori)e arrest or sei)ure upon mere suspicion. Page 26' %. !. 16 :hether the officers are shiel$e$ from prosecution or action by ;ev.!tat. !ec. 9'0 is not important. That section $oes not un$erta#e to $eprive the citi)en of any constitutional right, or to permit the use of evi$ence unla"fully obtaine$. 1t $oes, ho"ever, in$icate the clear un$erstan$ing of &ongress that probable cause is not al"ays enough to +ustify a sei)ure. Nor are "e no" concerne$ "ith the *uestion "hether, by apt "or$s, &ongress might have authori)e$ the arrest "ithout a "arrant. 1t has not attempte$ to $o this. Cn the contrary, the "hole history of the legislation in$icates a fi3e$ purpose not so to $o. (irst an$ secon$ violations are $eclare$ to be mis$emeanors .. nothing more .. an$ &ongress, of course, un$erstoo$ the rule concerning arrests for such offenses. :hether $ifferent penalties shoul$ have been prescribe$ or other provisions a$$e$ is not for us to in*uireG nor $o $ifficulties atten$ing enforcement give us po"er to supplement the legislation. 2. As the ,olstea$ Act contains no $efinite grant of authority to arrest upon suspicion an$ "ithout "arrant for a first offense, "e come to in*uire "hether such authority can be inferre$ from its provisions. %nless the statute "hich creates a mis$emeanor contains some clear provision to the contrary, suspicion that it is being violate$ "ill not +ustify an arrest. &riminal statutes must be strictly construe$ an$ applie$, in harmony "ith rules

of the common la".U%i&ed S&a&es $. Ha is, 1'' %. !. 30/, 1'' %. !. 310. An$ the "ell settle$ $octrine is that an arrest for a mis$emeanor may not be ma$e "ithout a "arrant unless the offense is committe$ in the officer8s presence. .u &, $. M#ffi&&, 11/ %. !. 9', 11/ %. !. 99 .. 2@y the common la" of Dnglan$, neither a civil officer nor a private citi)en ha$ the right "ithout a "arrant to ma#e an arrest for a crime not committe$ in his presence e3cept in the case Page 26' %. !. 16/ of felony, an$ then only for the purpose of bringing the offen$er before a civil magistrate.2 El' $. U%i&ed S&a&es, 1'' %. !. /29, 1'' %. !. /31 .. 2An officer, at common la", "as not authori)e$ to ma#e an arrest "ithout a "arrant, for a mere mis$emeanor not committe$ in his presence.2 C#!!#%+eal&h $. W i/h&, 1/9 Aass. 1 9, 1/9 .. 21t is suggeste$ that the statutory mis$emeanor of having in one8s possession short lobsters "ith intent to sell them is a continuing offence, "hich is being committe$ "hile such possession continues, an$ that, therefore, an officer "ho sees any person in possession of such lobsters "ith intent to sell them can arrest such person "ithout a "arrant, as for a mis$emeanor committe$ in his presence. :e are of opinion, ho"ever, that for statutory mis$emeanors of this #in$, not amounting to a breach of the peace, there is no authority in an officer to arrest "ithout a "arrant unless it is given by statute. . . . The Eegislature has often empo"ere$ officers to arrest "ithout "arrant for similar offenses, "hich perhaps ten$s to sho" that, in its opinion, no such right e3ists at common la".2 -i%'e &#% $. 5e be /, '9 Aich. /'3, /9 .. 2Any la" "hich "oul$ place the #eeping an$ safe con$uct of another in the han$s of even a conservator of the peace, unless for some breach of the peace committe$ in his presence, or upon suspicion of felony, "oul$ be most oppressive an$ un+ust, an$ $estroy all the rights "hich our &onstitution guarantees. These are rights "hich e3iste$ long before our &onstitution, an$ "e have ta#en +ust pri$e in their maintenance, ma#ing them a part of the fun$amental la" of the lan$. . . . 1f persons can be restraine$ of their liberty, an$ assaulte$ an$ imprisone$, un$er such circumstances, "ithout complaint or "arrant, then there is no limit to the po"er of a police officer.2 3. The ,olstea$ Act contains no provision "hich annuls the accepte$ common la" rule or $iscloses $efinite intent Page 26' %. !. 166 to authori)e arrests "ithout "arrant for mis$emeanors not committe$ in the officer8s presence. To support the contrary vie", !ection 26 is relie$ upon .. 2:hen . . . any officer of the la" shall $iscover any person in the act of transporting in violation of the la", into3icating li*uors in any "agon, buggy, automobile, "ater or aircraft, or other vehicle, it shall be his $uty to sei)e any an$ all into3icating li*uors foun$ therein being transporte$ contrary to la". :henever into3icating li*uors transporte$ or

possesse$ illegally shall be sei)e$ by an officer, he shall ta#e possession of the vehicle an$ team or automobile, boat, air or "ater craft, or any other conveyance, an$ shall arrest any person in charge thereof.2 Eet it be observe$ that this section has no special application to automobilesG it inclu$es any vehicle .. buggy, "agon, boat or air craft. &ertainly, in a criminal statute, al"ays to be strictly construe$, the "or$s 2shall $iscover. . . in the act of transporting in violation of the la"2 cannot mean shall have reasonable cause to suspect or believe that such transportation is being carrie$ on. To $iscover an$ to suspect are "holly $ifferent things. !ince the beginning, apt "or$s have been use$ "hen &ongress inten$e$ that arrests for mis$emeanors or sei)ures might be ma$e upon suspicion. 1t has stu$iously refraine$ from ma#ing a felony of the offense here charge$, an$ it $i$ not un$erta#e by any apt "or$s to enlarge the po"er to arrest. 1t "as not ignorant of the establishe$ rule on the sub+ect, an$ "ell un$erstoo$ ho" this coul$ be abrogate$, as plainly appears from statutes li#e the follo"ing? 2An Act to regulate the collection of $uties on imports an$ tonnage,2 approve$ Aarch 2, 1'99, c. 22, 1 !tat. 62', 6'', 6'9G 2An Act to provi$e more effectually for the collection of the $uties impose$ by la" on goo$s, "ares an$ merchan$ise importe$ Page 26' %. !. 16' into the %nite$ !tates, an$ on the tonnage of ships or vessels,2 approve$ August , 1'90, c. 3/, 1 !tat. 1 /, 1'0G 2An Act further to provi$e for the collection of $uties on imports an$ tonnage,2 approve$ Aarch 3, 191/, c. 9 , 3 !tat. 231, 232. These an$ similar Acts $efinitely empo"ere$ officers to sei)e upon suspicion an$ therein ra$ically $iffer from the ,olstea$ Act, "hich authori)e$ no such thing. 2An Act supplemental to the National Prohibition Act,2 approve$ November 23, 1921, c. 13 , provi$es .. 2That any officer, agent, or employee of the %nite$ !tates engage$ in the enforcement of this Act, or the National Prohibition Act, or any other la" of the %nite$ !tates, "ho shall search any private $"elling as $efine$ in the National Prohibition Act, an$ occupie$ as such $"elling, "ithout a "arrant $irecting such search, or "ho "hile so engage$ shall "ithout a search "arrant maliciously an$ "ithout reasonable cause search any other buil$ing or property, shall be guilty of a mis$emeanor an$ upon conviction thereof shall be fine$ for a first offense not more than B1,000, an$ for a subse*uent offense not more than B1,000 or imprisone$ not more than one year, or both such fine an$ imprisonment.2 An$ it is argue$ that the "or$s an$ history of this section in$icate the intent of &ongress to $istinguish bet"een the necessity for "arrants in or$er to search private $"ellings an$ the right to search automobiles "ithout one. Dvi$ently &ongress regar$e$ the searching of private $"ellings as matter of much graver conse*uence than some other searches, an$ $istinguishe$ bet"een them by $eclaring the former criminal. @ut the connection bet"een this $istinction an$ the legality of plaintiffs in error8s arrest is not apparent. Nor can 1 fin$ reason for in*uiring concerning the vali$ity of the $istinction un$er the (ourth Amen$ment. Cf course, the $istinction is Page 26' %. !. 169 2 !tat. 222, 223,

vali$, an$ so are some sei)ures. @ut "hat of itF The Act ma$e nothing legal "hich theretofore "as unla"ful, an$ to conclu$e that, by $eclaring the unauthori)e$ search of a private $"elling criminal, &ongress inten$e$ to remove ancient restrictions from other searches an$ from arrests as "ell "oul$ seem impossible. :hile the (ourth Amen$ment $enounces only unreasonable sei)ures, unreasonableness often $epen$s upon the means a$opte$. 6ere, the sei)ure follo"e$ an unla"ful arrest, an$ therefore became itself unla"ful .. as plainly unla"ful as the sei)ure "ithin the home so vigorously $enounce$ in Wee's $. U%i&ed S&a&es, 232 %. !. 393, 232 %. !. 391, 232 %. !. 392, 232 %. !. 393. 1n S%yde $. U%i&ed S&a&es, 29/ (e$. 1, 2, the &ourt of Appeals, (ourth &ircuit, re+ecte$ evi$ence obtaine$ by an un"arrante$ arrest, an$ clearly announce$ some very "holesome $octrine? 2That an officer may not ma#e an arrest for a mis$emeanor not committe$ in his presence, "ithout a "arrant, has been so fre*uently $eci$e$ as not to re*uire citation of authority. 1t is e*ually fun$amental that a citi)en may not be arreste$ on suspicion of having committe$ a mis$emeanor an$ have his person searche$ by force, "ithout a "arrant of arrest. 1f, therefore, the arresting officer in this case ha$ no other +ustification for the arrest than the mere suspicion that a bottle, only the nec# of "hich he coul$ see protru$ing from the poc#et of $efen$ant8s coat, containe$ into3icating li*uor, then it "oul$ seem to follo" "ithout much *uestion that the arrest an$ search, "ithout first having secure$ a "arrant, "ere illegal. An$ that his only +ustification "as his suspicion is a$mitte$ by the evi$ence of the arresting officer himself. 1f the bottle ha$ been empty, or if it ha$ containe$ anyone of a $o)en inno3ious li*ui$s, the act of the officer "oul$, a$mitte$ly, have been an unla"ful invasion of the personal liberty of the $efen$ant. That it happene$ in this instance to contain "his#y, "e thin#, Page 26' %. !. 169 neither +ustifies the assault nor con$emns the principle "hich ma#es such an act unla"ful.2 The vali$ity of the sei)ure un$er consi$eration $epen$s on the legality of the arrest. This $i$ not follo" the sei)ure, but the reverse is true. Plaintiffs in error "ere first brought "ithin the officers8 po"er, an$, "hile therein, the sei)ure too# place. 1f an officer, upon mere suspicion of a mis$emeanor, may stop one on the public high"ay, ta#e articles a"ay from him, an$ thereafter use them as evi$ence to convict him of crime, "hat becomes of the (ourth an$ (ifth Amen$mentsF 1n Wee's $. U%i&ed S&a&es, su) a, through Ar. =ustice <ay, this court sai$? 2The effect of the (ourth Amen$ment is to put the courts of the %nite$ !tates an$ (e$eral officials, in the e3ercise of their po"er an$ authority, un$er limitations an$ restraints as to the e3ercise of such po"er an$ authority, an$ to forever secure the people, their persons, houses, papers an$ effects against all unreasonable searches an$ sei)ures un$er the guise of la". This protection reaches all ali#e, "hether accuse$ of crime or not, an$ the $uty of giving to it force an$ effect is obligatory upon all entruste$ un$er our (e$eral system "ith the enforcement of the la"s. The ten$ency of those "ho e3ecute the criminal la"s of the country to obtain conviction by means of unla"ful sei)ures an$ enforce$ confessions, the latter often obtaine$ after sub+ecting accuse$ persons to un"arrante$ practices $estructive of rights secure$ by the (e$eral &onstitution, shoul$ fin$ no sanction in the +u$gments of the courts "hich are charge$ at all times "ith the support of the &onstitution an$ to "hich people of all con$itions have a right to appeal for the

maintenance of such fun$amental rights. . . . The efforts of the courts an$ their officials to bring the guilty to punishment, praise"orthy as they are, are not to be ai$e$ by the sacrifice of those great principles establishe$ by years of en$eavor an$ suffering "hich have Page 26' %. !. 1'0 resulte$ in their embo$iment in the fun$amental la" of the lan$.2 Sil$e &h# %e (u!be C#. $. U%i&ed S&a&es, 2/1 %. !. 39/, 2/1 %. !. 391? 2The proposition coul$ not be presente$ more na#e$ly. 1t is that, although, of course, its sei)ure "as an outrage "hich the -overnment no" regrets, it may stu$y the papers before it returns them, copy them, an$ then may use the #no"le$ge that it has gaine$ to call upon the o"ners in a more regular form to pro$uce themG that the protection of the &onstitution covers the physical possession, but not any a$vantages that the -overnment can gain over the ob+ect of its pursuit by $oing the forbi$$en act. Wee's $. U%i&ed S&a&es, 232 %. !. 393, to be sure, ha$ establishe$ that laying the papers $irectly before the gran$ +ury "as un"arrante$, but it is ta#en to mean only that t"o steps are re*uire$ instea$ of one. 1n our opinion, such is not the la". 1t re$uces the (ourth Amen$ment to a form of "or$s. 232 %.!. 232 %. !. 393. The essence of a provision forbi$$ing the ac*uisition of evi$ence in a certain "ay is that not merely evi$ence so ac*uire$ shall not be use$ before the court, but that it shall not be use$ at all. Cf course, this $oes not mean that the facts thus obtaine$ become sacre$ an$ inaccessible. 1f #no"le$ge of them is gaine$ from an in$epen$ent source, they may be prove$ li#e any others, but the #no"le$ge gaine$ by the -overnment8s o"n "rong cannot be use$ by it in the "ay propose$.2 G#uled $. U%i&ed S&a&es, 2// %. !. 299, an$ A!#s $. U%i&ed S&a&es, 2// %. !. 313, $istinctly point out that property procure$ by unla"ful action of (e$eral officers cannot be intro$uce$ as evi$ence. The arrest of plaintiffs in error "as unauthori)e$, illegal an$ violate$ the guarantee of $ue process given by the (ifth Amen$ment. The li*uor offere$ in evi$ence "as obtaine$ by the search "hich follo"e$ this arrest, an$ "as therefore obtaine$ in violation of their constitutional Page 26' %. !. 1'1 rights. Articles foun$ upon or in the control of one la"fully arreste$ may be use$ as evi$ence for certain purposes, but not at all "hen secure$ by the unla"ful action of a (e$eral officer. . The facts #no"n by the officers "ho arreste$ plaintiffs in error "ere "holly insufficient to create a reasonable belief that they "ere transporting li*uor contrary to la". These facts "ere $etaile$ by (re$ &ronen"elt, chief prohibition officer. 6is entire testimony as given at the trial follo"s .. 21 am in charge of the (e$eral Prohibition <epartment in this <istrict. 1 am ac*uainte$ "ith these t"o respon$ents, an$ first sa" them on !eptember 29, 1921, in Ar. !cully8s apartment on Ca#es !treet, -ran$ ;api$s. There "ere three of them that came to Ar. !cully8s apartment, one by the name of >rus#a, -eorge >iro an$ =ohn &arroll. 1 "as intro$uce$ to them un$er the name of !taffor$, an$ tol$ them 1 "as "or#ing for the Aichigan &hair &ompany, an$ "ante$ to buy three cases of "his#y, an$ the price "as agree$ upon. After they thought 1 "as all right, they sai$ they "oul$ be bac# in half or three.*uarters of an hourG that they ha$ to go out to the east en$ of -ran$ ;api$s, to get this li*uor. They

"ent a"ay an$ came bac# in a short time, an$ Ar. >rus#a came upstairs an$ sai$ they coul$n8t get it that nightG that a fello" by the name of 1rving, "here they "ere going to get it, "asn8t in, but they "ere going to $eliver it the ne3t $ay, about ten. They $i$n8t $eliver it the ne3t $ay. 1 am not positive about the price. 1t seems to me it "as aroun$ B130 a case. 1t might be B13/. @oth respon$ents too# part in this conversation. :hen they came to Ar. !cully8s apartment, they ha$ this same car. :hile it "as $ar# an$ 1 "asn8t able to get a goo$ loo# at this car, later, on the si3th $ay of Cctober, "hen 1 "as out on the roa$ "ith Ar. !cully, 1 "as "aiting on the high"ay "hile he "ent to ;ee$8s Ea#e to get a light Page 26' %. !. 1'2 lunch, an$ they $rove by, an$ 1 ha$ their license number an$ the appearance of their car, an$ #no"ing the t"o boys, seeing them on the 29th $ay of !eptember, 1 "as satisfie$ "hen 1 seen the car on <ecember 1/th it "as the same car 1 ha$ seen on the 6th $ay of Cctober. Cn the 6th $ay of Cctober, it "as probably t"enty minutes before !cully got bac# to "here 1 "as. 1 tol$ him the &arroll boys ha$ +ust gone to"ar$ <etroit an$ "e "ere trying to catch up "ith them an$ see "here they "ere going. :e $i$ catch up "ith them some"here along by A$a, +ust before "e got to A$a, an$ follo"e$ them to Dast Eansing. :e gave up the chase at Dast Eansing.2 2Cn the 1/th of <ecember, "hen Peterson an$ !cully an$ 1 overhaule$ this car on the roa$, it "as in the country, on Pi#e 16, the roa$ lea$ing bet"een -ran$ ;api$s an$ <etroit. :hen "e passe$ the car, "e "ere going to"ar$ 1onia, or <etroit, an$ the >iro an$ &arroll boys "ere coming to"ar$s -ran$ ;api$s "hen Ar. !cully an$ 1 recogni)e$ them an$ sai$ 8there goes the &arroll brothers,8 an$ "e "ent on still further in the same $irection "e "ere going an$ turne$ aroun$ an$ "ent bac# to themG $rove up to the si$e of them. Ar. !cully "as $riving the carG 1 "as sitting in the front seat, an$ 1 steppe$ out on the running boar$ an$ hel$ out my han$ an$ sai$, 8&arroll, stop that car,8 an$ they $i$ stop it. =ohn >iro "as $riving the car. After "e got them stoppe$, "e as#e$ them to get out of the car, "hich they $i$. &arroll referre$ to me an$ calle$ me by the name of 8(re$8 +ust as soon as 1 got up to him. ;aise$ up the bac# part of the roa$sterG $i$n8t fin$ any li*uor thereG then raise$ up the cushionG then 1 struc# at the la)ybac# of the seat an$ it "as har$. 1 then starte$ to open it up, an$ 1 $i$ tear the cushion some, an$ &arroll sai$, 8<on8t tear the cushionG "e have only got si3 cases in thereG8 an$ 1 too# out t"o bottles an$ foun$ out it "as li*uorG satisfie$ it "as li*uor. Ar. Peterson an$ a fello" by the Page 26' %. !. 1'3 name of -eral$ <on#er came in "ith the t"o &arroll boys an$ the li*uor an$ the car to -ran$ ;api$s. They brought the t"o $efen$ants an$ the car an$ the li*uor to -ran$ ;api$s. 1 an$ the other men besi$es Peterson staye$ out on the roa$, loo#ing for other cars that "e ha$ information "ere coming in. There "as conversation bet"een me an$ &arroll before Peterson starte$ for to"n "ith the $efen$ants. Ar. &arroll sai$, 8Ta#e the li*uor an$ give us one more chance an$ 1 "ill ma#e it right "ith you.8 At the same time, he reache$ in one of his trousers poc#ets an$ pulle$ out moneyG the amount of it 1 $on8t #no". 1 "oul$n8t say it "as a "hole lot. 1 sa" a ten $ollar bill, an$ there "as some other billsG 1 $on8t #no" ho" much there "asG it "asn8t a large amount.2 2As 1 un$erstan$, Ar. 6anley helpe$ carry the li*uor from the car. Cn the ne3t $ay after"ar$s, "e put this li*uor in bo3es, steel bo3es, an$ left it in the Aarshal8s vault, an$ it is still there no". Ar. 6anley an$ &hief <eputy =ohnson,

some of the agents an$ myself "ere there. Ar. Peterson "as there the ne3t $ay that the labels "ere signe$ by the $ifferent officersG those t"o bottles, D3hibits 8A8 an$ 8@.82 2L. No", those t"o bottles, D3hibits 8A8 an$ 8@,8 "ere those the t"o bottles you too# out of the car out there, or "ere those t"o bottles ta#en out of the li*uor after it go up hereF2 2A. :e $i$n8t label them out on the roa$G simply foun$ it "as li*uor an$ sent it in, an$ this li*uor "as in Ar. 6anley8s custo$y that evening an$ $uring the mi$$le of the ne3t $ay "hen "e chec#e$ it over to see the amount of li*uor that "as there. Ar. =ohnson an$ 1 seale$ the bottles an$ Ar. =ohnson8s name is on the label that goes over the bo3 "ith mine, an$ this li*uor "as ta#en out of the case to$ay. 1t "as ta#en out for the purpose of analy)ation. The others "ere not bro#en until to$ay. 2 Page 26' %. !. 1' 2L. An$ are you able to tell us, from the label an$ from the bottles, "hether it is part of the same li*uor ta#en out of that carF A. 1t has the appearance of it, yes sir. Those are the bottles that "ere in there that Ar. 6anley sai$ "as gotten out of the &arroll car.2 2J&ross.e3amination.K 1 thin# 1 "as the first one to get bac# to the &arroll car after it "as stoppe$. 1 ha$ a gun in my poc#etG 1 $i$n8t present it. 1 "as the first one to the car, an$ raise$ up the bac# of the car, but the others "ere there shortly after"ar$. :e assemble$ right aroun$ the car imme$iately.2 2L. An$ "hatever e3amination an$ "hat investigation you ma$e you "ent right ahea$ an$ $i$ it in your o"n "ayF A. Ies, sir.2 2L. An$ too# possession of it, arreste$ them, an$ brought them inF A. Ies, sir.2 2L. An$ at that time, of course, you ha$ no search "arrantF A. No, sir. :e ha$ no #no"le$ge that this car "as coming through at that particular time.2 2J;e$irect e3amination.K The la)ybac# "as a"fully har$ "hen 1 struc# it "ith my fist. 1t "as har$er than upholstery or$inarily is in those bac#sG a great $eal har$er. 1t "as practically soli$. !i3ty.nine *uarts of "his#ey in one la)ybac#.2 The negotiation concerning three cases of "his#y on !eptember 29th "as the only circumstance "hich coul$ have sub+ecte$ plaintiffs in error to any reasonable suspicion. No "his#y "as $elivere$, an$ it is not certain that they ever inten$e$ to $eliver any. The arrest came t"o an$ a half months after the negotiation. Dvery act in the meantime is consistent "ith complete innocence. 6as it come about that merely because a man once agree$ to $eliver "his#y, but $i$ not, he may be arreste$ "henever thereafter he ventures to $rive an automobile on the roa$ to <etroitM /. :hen &ongress has inten$e$ that sei)ures or arrests might be ma$e upon suspicion, it has been careful to say Page 26' %. !. 1'/ so. The history an$ terms of the ,olstea$ Act are not consistent "ith the suggestion that it "as the purpose of &ongress to grant the po"er here claime$ for enforcement officers. The facts #no"n "hen the arrest occurre$ "ere "holly insufficient to engen$er reasonable belief that plaintiffs in error "ere committing a mis$emeanor, an$ the legality of the arrest cannot be supporte$ by facts ascertaine$ through the search "hich follo"e$.

To me, it seems clear enough that the +u$gment shoul$ be reverse$. 1 am authori)e$ to say that A;. =%!T1&D !%T6D;EAN< concurs in this opinion.