U.S. Supreme Court

Carroll v. United States,267U.S. 132 (1925)Carroll v. UnitedStates

No. 15

Argued December 4,1923

Restored to docket for reargumentJanuary 28, 1924

Reargued March 14,1924

Decided March 2, 1925

267U.S. 132

ERROR TO THE DISTRICT COURT OF THEUNITED STATES

FOR THE WESTERN DISTRICT OFMICHIGAN

Syllabus

1. The legislative history of 6 of the act supplemental to theNational Prohibition Act, November 23, 1921, c. 134, 42 Stat. 223,which makes it a misdemeanor for any officer of the United Statesto search a private dwelling without a search warrant or to searchany other building or property without a search warrant,maliciously and without reasonable cause, shows clearly the intentof Congress to make a distinction as to the necessity for a searchwarrant in the searching of private dwellings and in the searchingof automobiles or other road vehicles, in the enforcement of theProhibition Act. P.267 U. S.144.

2. The Fourth Amendment denounces only such searches or seizuresas are unreasonable, and it is to be construed in the light of whatwas deemed an unreasonable search and seizure when it was adopted,and in a manner which will conserve public interests as well as theinterests and rights of individual citizens. P.267 U. S.147.

3. Search without a warrant of an automobile, and seizuretherein of liquor subject to seizure and destruction under theProhibition Act, do not violate the Amendment, if made uponprobable cause,i.e., upon a belief, reasonably arisingout of circumstances known to the officer, that the vehiclecontains such contraband liquor. P.267 U. S.149.

4. Various acts of Congress are cited to show that, practicallysince the beginning of the Government, the Fourth Amendment hasbeen construed as recognizing a necessary difference between asearch for contraband in a store, dwelling-house, or otherstructure

Page 267 U. S. 133

for the search of which a warrant may readily be obtained, and asearch of a ship, wagon, automobile, or other vehicle which may bequickly moved out of the locality or jurisdiction in which thewarrant must be sought. P.267 U. S. 150.

5. Section 26, Title II, of the National Prohibition Act,provides that, when an officer "shall discover any person in theact" of transporting intoxicating liquor in any automobile, orother vehicle, in violation of law, it shall be his duty to seizethe liquor and thereupon to take possession of the vehicle andarrest the person in charge of it, and that, upon conviction ofsuch person, the court shall order the liquor destroyed, and,except for good cause shown, shall order a public sale, etc. of theother property seized.

Held:

(a) That the primary purpose is the seizure and destruction ofthe contraband liquor, and the provisions for forfeiture of thevehicle and arrest of the transporter are merely incidental. P.267 U. S.153.

(b) Hence, the right to search an automobile for illicit liquorand to seize the liquor, if found, and thereupon to seize thevehicle also and to arrest the offender, does not depend upon theright to arrest the offender in the first instance, and thereforeit is not determined by the degree of his offence -- whether amisdemeanor under § 29, Title II of the Act, because of being hisfirst or second offence, or a felony because it is his third, andthe rule allowing arrest without warrant for misdemeanor only whenthe offence is committed in the officer's presence, but for afelony when the officer has reasonable cause to believe that theperson arrested has committed a felony, is not the test of thevalidity of such search and seizure. Pp.267 U. S. 155,267 U. S.156.

(c) The seizure is legal if the officer, in stopping andsearching the vehicle, has reasonable or probable cause forbelieving that contraband liquor is being illegally transported init. P.267 U. S.155.

(d) The language of § 26 -- when an officer shall "discover "any person in the act of transporting, etc. -- does not limit himto what he learns of the contents of a passing automobile by theuse of his senses at the time. P.267 U. S.158.

(e) The section thus construed is consistent with the FourthAmendment. P.267 U. S.159.

6. Probable cause held to exist where prohibition officers,while patrolling a highway much used in illegal transportation ofliquor, stopped and searched an automobile upon the faith ofinformation previously obtained by them that the car and itsoccupants, identified by the officers, were engaged in the illegalbusiness of "bootlegging." P.267 U. S.159.

Page 267 U. S. 134

7. When contraband liquor, seized from an automobile and used inthe conviction of those in charge of the transportation, was shownat the trial to have been taken in a search justified by probablecause,held that the Court's refusal to return he liquoron defendants' motion before trial, even if erroneous becauseprobable cause was not then proven, was not a substantial reasonfor . reversing the conviction. P.267 U. S.162.

8. The Court notices judicially that Grand Rapids is about 152miles from Detroit, and that Detroit, and its neighborhood alongthe Detroit River, which is the international boundary, is one ofthe most active centers for introducing illegally into this countryspirituous liquors for distribution into the interior. P.267 U. S.160.

Affirmed.

This is a writ of error to the District Court under Section 238of the Judicial Code. The plaintiffs in error, hereafter to becalled the defendants, George Carroll and John Kiro, were indictedand convicted for transporting in an automobile intoxicatingspirituous liquor, to-wit: 68 quarts of so-called bonded whiskeyand gin, in violation of the National Prohibition Act. The groundon which they assail the conviction is that the trial courtadmitted in evidence two of the 68 bottles, one of whiskey and oneof gin, found by searching the automobile. It is contended that thesearch and seizure were in violation of the Fourth Amendment, andtherefore that use of the liquor as evidence was not proper. Beforethe trial, a motion was made by the defendants that all the liquorseized be returned to the defendant Carroll, who owned theautomobile. This motion was denied.

The search and seizure were made by Cronenwett, Scully andThayer, federal prohibition agents, and one Peterson, a stateofficer, in December, 1921, as the car was going westward on thehighway between Detroit and Grand Rapids at a point 16 milesoutside of Grand Rapids. The facts leading to the search andseizure were as follows: on September 29th, Cronenwett and Scullywere in an apartment in Grand Rapids. Three men came to thatapartment, a man named Kruska and the two defendants,

Page 267 U. S. 135

Carroll and Kiro. Cronenwett was introduced to them as oneStafford, working in the Michigan Chair Company in Grand Rapids,who wished to buy three cases of whiskey. The price was fixed at$13 a case. The three men said they had to go to the east end ofGrand Rapids to get the liquor and that they would be back in halfor three-quarters of an hour. They went away, and in a short timeKruska came back and said they could not get it that night, thatthe man who had it was not in, but that they would deliver it thenext day. They had come to the apartment in an automobile known asan Oldsmobile Roadster, the number of which Cronenwett thenidentified, a did Scully. The proposed vendors did not return thenext day, and the evidence disclosed no explanation of theirfailure to do so. One may surmise that it was suspicion of the realcharacter of the proposed purchaser, whom Carroll subsequentlycalled by his first name when arrested in December following.Cronenwett and his subordinates were engaged in patrolling the roadleading from Detroit to Grand Rapids, looking for violations of theProhibition Act. This seems to have been their regular tour ofduty. On the 6th of October, Carroll and Kiro, going eastward fromGrand Rapids in the same Oldsmobile Roadster, passed Cronenwett andScully some distance out from Grand Rapids. Cronenwett called toScully, who was taking lunch, that the Carroll boys had passed themgoing toward Detroit, and sought with Scully to catch up with themto see where they were going. The officers followed as far as EastLansing, half way to Detroit, but there lost trace of them. On the15th of December, some two months later, Scully and Cronenwett, ontheir regular tour of duty, with Peterson, the State officer, weregoing from Grand Rapids to Ionia, on the road to Detroit, when Kiroand Carroll met and passed them in the same automobile, coming fromthe direction of Detroit to Grand Rapids. The government agentsturned

Page 267 U. S. 136

their car and followed the defendants to a point some sixteenmiles east of Grand Rapids, where they stopped them and searchedthe car. They found behind the upholstering of the seats, thefilling of which had been removed, 68 bottles. These had labels onthem, part purporting to be certificates of English chemists thatthe contents were blended Scotch whiskeys, and the rest that thecontents were Gordon gin made in London. When an expert witness wascalled to prove the contents, defendants admitted the nature ofthem to be whiskey and gin. When the defendants were arrested,Carroll said to Cronenwett, "Take the liquor and give us one morechance and I will make it right with you," and he pulled out a rollof bills, of which one was for $10. Peterson and another took thetwo defendants and the liquor and the car to Grand Rapids, whileCronenwett, Thayer and Scully remained on the road looking forother cars of whose coming they had information. The officers werenot anticipating that the defendants would be coming through on thehighway at that particular time, but when they met them there, theybelieved they were carrying liquor, and hence the search, seizureand arrest.

Page 267 U. S. 143

MR. CHIEF JUSTICE TAFT, after stating the case as above,delivered the opinion of the Court.

The constitutional and statutory provisions involved in thiscase include the Fourth Amendment and the National ProhibitionAct.

The Fourth Amendment is in part as follows:

"The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures,shall not be violated, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation, and particularlydescribing the place to be searched, and the person, or things tobe seized."

Section 25, Title II, of the National Prohibition Act, c. 85, 41Stat. 305, 315, passed to enforce the Eighteenth Amendment, makesit unlawful to have or possess any liquor intended for use inviolating the Act, or which has been so used, and provides that noproperty rights shall exist in such liquor. A search warrant mayissue and such liquor, with the containers thereof, may be seizedunder the warrant and be ultimately destroyed. The section furtherprovides:

"No search warrant shall issue to search any private dwellingoccupied as such unless it is being used for the unlawful sale ofintoxicating liquor, or unless it is in part used for some businesspurpose such as a store, shop, saloon, restaurant, hotel, orboarding house. The term 'private dwelling' shall be construed toinclude the room or rooms used and occupied not transiently butsolely as

Page 267 U. S. 144

a residence in an apartment house, hotel, or boardinghouse."

Section 26, Title II, under which the seizure herein was made,provides in part as follows:

"When the commissioner, his assistants, inspectors, or anyofficer of the law shall discover any person in the act oftransporting in violation of the law, intoxicating liquors in anywagon, buggy, automobile, water or air craft, or other vehicle, itshall be his duty to seize any and all intoxicating liquors foundtherein being transported contrary to law. Whenever intoxicatingliquors transported or possessed illegally shall be seized by anofficer he shall take possession of the vehicle and team orautomobile, boat, air or water craft, or any other conveyance, andshall arrest any person in charge thereof."

The section then provides that the court, upon conviction of theperson so arrested, shall order the liquor destroyed, and, exceptfor good cause shown, shall order a sale by public auction of theother property seized, and that the proceeds shall be paid into theTreasury of the United States.

By Section 6 of an Act supplemental to the National ProhibitionAct, c. 134, 42 Stat. 222, 223, it is provided that, if any officeror agent or employee of the United States engaged in theenforcement of the Prohibition Act or this Amendment, "shall searchany private dwelling," as defined in that Act, "without a warrantdirecting such search," or "shall without a search warrantmaliciously and without reasonable cause search any other buildingor property," he shall be guilty of a misdemeanor and subject tofine or imprisonment or both.

In the passage of the supplemental Act through the Senate,Amendment No. 32, known as the Stanley Amendment, was adopted, therelevant part of which was as follows:

"Section 6. That any officer, agent or employee of the UnitedStates engaged in the enforcement of this Act or

Page 267 U. S. 145

the National Prohibition Act, or any other law of the UnitedStates, who shall search or attempt to search the property orpremises of any person without previously securing a searchwarrant, as provided by law, shall be guilty of a misdemeanor andupon conviction thereof shall be fined not to exceed $1000, orimprisoned not to exceed one year, or both so fined and imprisonedin the discretion of the Court."

This Amendment was objected to in the House, and the JudiciaryCommittee, to whom it was referred, reported to the House ofRepresentatives the following as a substitute.

"Sec. 6. That no officer, agent or employee of the UnitedStates, while engaged in the enforcement of this Act, the NationalProhibition Act, or any law in reference to the manufacture ortaxation of, or traffic in, intoxicating liquor, shall search anyprivate dwelling without a warrant directing such search, and nosuch warrant shall issue unless there is reason to believe suchdwelling is used as a place in which liquor is manufactured forsale or sold. The term 'private dwelling' shall be construed toinclude the room or rooms occupied not transiently, but solely as aresidence in an apartment house, hotel, or boarding house. Anyviolation of any provision of this paragraph shall be punished by afine of not to exceed $1000 or imprisonment not to exceed one year,or both such fine and imprisonment, in the discretion of thecourt."

In its report, the Committee spoke in part as follows:

"It appeared to the committee that the effect of the Senateamendment No. 32, if agreed to by the House, would greatly cripplethe enforcement of the national prohibition act and would otherwiseseriously interfere with the Government in the enforcement of manyother laws, as its scope is not limited to the prohibition law,

Page 267 U. S. 146

but applies equally to all laws where prompt action isnecessary. There are on the statute books of the United States anumber of laws authorizing search without a search warrant. Underthe common law and agreeably to the Constitution, search may inmany cases be legally made without a warrant. The Constitution doesnot forbid search, as some parties contend, but it does forbidunreasonable search. This provision in regard to search is, as arule, contained in the various State constitutions, butnotwithstanding that fact, search without a warrant is permitted inmany cases, and especially is that true in the enforcement ofliquor legislation."

"The Senate amendment prohibits all search or attempt to searchany property or premises without a search warrant. The effect ofthat would necessarily be to prohibit all search, as no search cantake place if it is not on some property or premises."

"Not only does this amendment prohibit search of any lands, butit prohibits the search of all property. It will prevent the searchof the common bootlegger and his stock in trade, though caught andarrested in the act of violating the law. But what is perhaps moreserious, it will make it impossible to stop the rum runningautomobiles engaged in like illegal traffic. It would take from theofficers the power that they absolutely must have to be of anyservice, for if they cannot search for liquor without a warrant,they might as well be discharged. It is impossible to get a warrantto stop an automobile. Before a warrant could be secured, theautomobile would be beyond the reach of the officer, with its loadof illegal liquor disposed of."

The conference report resulted, so far as the difference betweenthe two Houses was concerned, in providing for the punishment ofany officer, agent or employee of the Government who searches a"private dwelling" without a warrant, and for the punishment of anysuch officer,

Page 267 U. S. 147

etc., who searches any "other building or property" where, andonly where, he makes the search without a warrant "maliciously andwithout probable cause." In other words, it left the way open forsearching an automobile, or vehicle of transportation, without awarrant, if the search was not malicious or without probablecause.

The intent of Congress to make a distinction between thenecessity for a search warrant in the searching of privatedwellings and in that of automobiles and other road vehicles is theenforcement of the Prohibition Act is thus clearly established bythe legislative history of the Stanley Amendment. Is such adistinction consistent with the Fourth Amendment? We think that itis. The Fourth Amendment does not denounce all searches orseizures, but only such as are unreasonable.

The leading case on the subject of search and seizure isBoyd v. United States,116 U. S. 616. AnAct of Congress of June 22, 1874, authorized a court of the UnitedStates, in revenue cases, on motion of the government attorney, torequire the defendant to produce in court his private books,invoices and papers on pain in case of refusal of having theallegations of the attorney in his motion taken as confessed. Thiswas held to be unconstitutional and void as applied to suits forpenalties or to establish a forfeiture of goods, on the groundthat, under the Fourth Amendment, the compulsory production ofinvoices to furnish evidence for forfeiture of goods constituted anunreasonable search even where made upon a search warrant, and thatit was also a violation of the Fifth Amendment, in that itcompelled the defendant in a criminal case to produce evidenceagainst himself or be in the attitude of confessing his guilt.

InWeeks v. United States,232 U.S. 383, it was held that a court in a criminalprosecution could not retain letters of the accused seized in hishouse, in his absence and without his authority, by a United Statesmarshal

Page 267 U. S. 148

holding no warrant for his arrest and none for the search of hispremises, to be used as evidence against him, the accused havingmade timely application to the court for an order for the return ofthe letters.

InSilverthorne Lumber Company v. United States,251 U. S. 385, awrit of error was brought to reverse a judgment of contempt of theDistrict Court, fining the company and imprisoning oneSilverthorne, its president, until he should purge himself ofcontempt in not producing books and documents of the company beforethe grand jury to prove violation of the statutes of the UnitedStates by the company and Silverthorne. Silverthorne had beenarrested, and, while under arrest, the marshal had gone to theoffice of the company without a warrant and made a clean sweep ofall books, papers and documents found there, and had taken copiesand photographs of the papers. The District Court ordered thereturn of the originals, but impounded the photographs and copies.This was held to be an unreasonable search of the property andpossessions of the corporation and a violation of the FourthAmendment, and the judgment for contempt was reversed.

InGouled v. United States,255 U.S. 298, the obtaining through stealth by arepresentative of the Government, from the office of one suspectedof defrauding the Government, of a paper which had no pecuniaryvalue in itself, but was only to be used as evidence against itsowner, was held to be a violation of the Fourth Amendment. It wasfurther held that, when the paper was offered in evidence and dulyobjected to, it must be ruled inadmissible because obtained throughan unreasonable search and seizure, and also in violation of theFifth Amendment because working compulsory incrimination.

InAmos v. United States,255 U.S. 313, it was held that, where concealed liquor wasfound by government officers without a search warrant in the homeof the defendant,

Page 267 U. S. 149

in his absence, and after a demand made upon his wife, it wasinadmissible as evidence against the defendant because acquired byan unreasonable seizure.

In none of the cases cited is there any ruling as to thevalidity under the Fourth Amendment of a seizure without a warrantof contraband goods in the course of transportation and subject toforfeiture or destruction.

On reason and authority, the true rule is that, if the searchand seizure without a warrant are made upon probable cause, thatis, upon a belief, reasonably arising out of circumstances known tothe seizing officer, that an automobile or other vehicle containsthat which by law is subject to seizure and destruction, the searchand seizure are valid. The Fourth Amendment is to be construed inthe light of what was deemed an unreasonable search and seizurewhen it was adopted, and in a manner which will conserve publicinterests as well as the interests and rights of individualcitizens.

InBoyd v. United States,116 U.S. 616, as already said, the decision did not turn onwhether a reasonable search might be made without a warrant; butfor the purpose of showing the principle on which the FourthAmendment proceeds, and to avoid any misapprehension of what wasdecided, the Court, speaking through Mr. Justice Bradley, usedlanguage which is of particular significance and applicabilityhere. It was there said (page116 U. S.623):

"The search for and seizure of stolen or forfeited goods, orgoods liable to duties and concealed to avoid the payment thereof,are totally different things from a search for and seizure of aman's private books and papers for the purpose of obtaininginformation therein contained, or of using them as evidence againsthim. The two things differtoto coelo. In the one case,the government is entitled to the possession of the property; inthe other, it is not. The seizure of stolen goods is authorized bythe

Page 267 U. S. 150

common law, and the seizure of goods forfeited for a breach ofthe revenue laws, or concealed to avoid the duties payable on them,has been authorized by English statutes for at least two centuriespast, and the like seizures have been authorized by our own revenueacts from the commencement of the government. The first statutepassed by Congress to regulate the collection of duties, the act ofJuly 31, 1789, 1 Stat. 29, 43, contains provisions to this effect.As this act was passed by the same Congress which proposed foradoption the original amendments to the Constitution, it is clearthat the members of that body did not regard searches and seizuresof this kind as 'unreasonable,' and they are not embraced withinthe prohibition of the amendment. So, also, the supervisionauthorized to be exercised by officers of the revenue over themanufacture or custody of excisable articles, and the entriesthereof in books required by law to be kept for their inspection,are necessarily excepted out of the category of unreasonablesearches and seizures. So, also, the laws which provide for thesearch and seizure of articles and things which it is unlawful fora person to have in his possession for the purpose of issue ordisposition, such as counterfeit coin, lottery tickets, implementsof gambling, &c., are not within this category.Commonwealth v. Dana, 2 Met. (Mass.) 329. Many otherthings of this character might be enumerated."

It is noteworthy that the twenty-fourth section of the Act of1789, to which the Court there refers, provides:

"That every collector, naval officer and surveyor, or otherperson specially appointed by either of them for that purpose,shall have full power and authority, to enter any ship or vessel,in which they shall have reason to suspect any goods, wares ormerchandise subject to duty shall be concealed, and therein tosearch for, seize, and secure any such goods, wares or merchandise,and if they shall have cause to suspect a concealment thereof, inany

Page 267 U. S. 151

particular dwelling-house, store, building, or other place, theyor either of them shall, upon application on oath or affirmation toany justice of the peace, be entitled to a warrant to enter suchhouse, store, or other place (in the day time only) and there tosearch for such goods, and if any shall be found, to seize andsecure the same for trial, and all such goods, wares, andmerchandise, on which the duties shall not have been paid orsecured, shall be forfeited."

Like provisions were contained in the Act of August 4, 1790, c.35, Sections 451, 1 Stat. 145, 170; in Section 27 of the Act ofFebruary 18, 1793, c. 8, 1 Stat. 305, 315, and in Sections 68-71 ofthe Act of March 2, 1799, c. 22, 1 Stat. 627, 677, 678.

Thus, contemporaneously with the adoption of the FourthAmendment, we find in the first Congress, and in the followingSecond and Fourth Congresses, a difference made as to the necessityfor a search warrant between goods subject to forfeiture, whenconcealed in a dwelling house or similar place, and like goods incourse of transportation and concealed in a movable vessel wherethey readily could be put out of reach of a search warrant.Compare Hester v. United States,265 U. S.57.

Again, by the second section of the Act of March 3, 1815, 3Stat. 231, 232, it was made lawful for customs officers not only toboard and search vessels within their own and adjoining districts,but also to stop, search and examine any vehicle, beast or personon which or whom they should suspect there was merchandise whichwas subject to duty or had been introduced into the United Statesin any manner contrary to law, whether by the person in charge ofthe vehicle or beast or otherwise, and if they should find anygoods, wares or merchandise thereon, which they had probable causeto believe had been so unlawfully brought into the country, toseize and secure the same, and the vehicle or beast as well, fortrial

Page 267 U. S. 152

and forfeiture. This Act was renewed April 27, 1816, 3 Stat.315, for a year and expired. The Act of February 28, 1865, revivedSection 2 of the Act of 1815, above described, c. 67, 13 Stat. 441.The substance of this section was reenacted in the third section ofthe Act of July 18, 1866, c. 201, 14 Stat. 178, and was thereafterembodied in the Revised Statutes as Section 3061. Neither Section3061 nor any of its earlier counterparts has ever been attacked asunconstitutional. Indeed, that section was referred to and treateda operative by this Court inCotzhausen v. Nazro,107 U. S. 215,107 U. S. 219.See also United States v. One Black Horse, 129 Fed.167.

Again, by Section 2140 of the Revised Statutes, any Indianagent, sub-agent or commander of a military post in the IndianCountry, having reason to suspect or being informed that any whiteperson or Indian is about to introduce, or has introduced, anyspirituous liquor or wine into the Indian Country, in violation oflaw, may cause the boats, stores, packages, wagons, sleds andplaces of deposit of such person to be searched, and if any liquoris found therein, then it, together with the vehicles, shall beseized and proceeded against by libel in the proper court andforfeited. Section 2140 was the outgrowth of the Act of May 6,1822, c. 58, 3 Stat. 682, authorizing Indian agents to cause thegoods of traders in the Indian Country to be searched uponsuspicion or information that ardent spirits were being introducedinto the Indian Country, to be seized and forfeited if found, andof the Act of June 30, 1834, Section 20, c. 161, 4 Stat. 729, 732,enabling an Indian agent having reason to suspect any person ofhaving introduced or being about to introduce liquors into theIndian Country to cause the boats, stores or places of deposit ofsuch person to be searched and the liquor found forfeited. ThisCourt recognized the statute of 1822 as justifying such a searchand seizure inAmerican Fur Co. v. UnitedStates, 2 Pet. 358. By the Indian

Page 267 U. S. 153

Appropriation Act of March 2, 1917, c. 146, 39 Stat. 969, 970,automobiles used in introducing or attempting to introduceintoxicants into the Indian Territory may be seized, libeled andforfeited as provided in the Revised Statutes, Section 2140.

And again, in Alaska, by Section 174 of the Act of March 3,1899, c. 429, 30 Stat. 1253, 1280, it is provided that collectorsand deputy collectors, or any person authorized by them in writing,shall be given power to arrest persons and seize vessels andmerchandise in Alaska liable to fine, penalties or forfeiture underthe Act and to keep and deliver the same, and the Attorney General,in construing the Act, advised the Government:

"If your agents reasonably suspect that a violation of law hasoccurred, in my opinion they have power to search any vessel withinthe 3-mile limit according to the practice of customs officers whenacting under Section 3059 of the Revised Statutes, and to seizesuch vessels."

26 Opinions Attorneys General 243.

We have made a somewhat extended reference to these statutes toshow that the guaranty of freedom from unreasonable searches andseizures by the Fourth Amendment has been construed, practicallysince the beginning of the Government, as recognizing a necessarydifference between a search of a store, dwelling house or otherstructure in respect of which a proper official warrant readily maybe obtained, and a search of a ship, motor boat, wagon orautomobile, for contraband goods, where it is not practicable tosecure a warrant because the vehicle can be quickly moved out ofthe locality or jurisdiction in which the warrant must besought.

Having thus established that contraband goods concealed andillegally transported in an automobile or other vehicle may besearched for without a warrant, we come now to consider under whatcircumstances such search may be made. It would be intolerable andunreasonable

Page 267 U. S. 154

if a prohibition agent were authorized to stop every automobileon the chance of finding liquor, and thus subject all personslawfully using the highways to the inconvenience and indignity ofsuch a search. Travelers may be so stopped in crossing aninternational boundary because of national self protectionreasonably requiring one entering the country to identify himselfas entitled to come in, and his belongings as effects which may belawfully brought in. But those lawfully within the country,entitled to use the public highways, have a right to free passagewithout interruption or search unless there is known to a competentofficial authorized to search, probable cause for believing thattheir vehicles are carrying contraband or illegal merchandise.Section 26, Title II, of the National Prohibition Act, like thesecond section of the Act of 1789, for the searching of vessels,like the provisions of the Act of 1815, and Section 3061, RevisedStatutes, for searching vehicles for smuggled goods, and like theAct of 1822, and that of 1834 and Section 2140, R.S., and the Actof 1917 for the search of vehicles and automobiles for liquorsmuggled into the Indian Country, was enacted primarily toaccomplish the seizure and destruction of contraband goods;secondly, the automobile was to be forfeited, and thirdly, thedriver was to be arrested. Under Section 29, Title II, of the Actthe latter might be punished by not more than $500 fine for thefirst offense, not more than $1,000 fine or 90 days' imprisonmentfor the second offense, and by a fine of $500 or more and by notmore than 2 years' imprisonment for the third offense. Thus, he isto be arrested for a misdemeanor for his first and second offensesand for a felony if he offends the third time. The main purpose ofthe Act obviously was to deal with the liquor and itstransportation and to destroy it. The mere manufacture of liquorcan do little to defeat the policy of the Eighteenth Amendment andthe Prohibition Act, unless the forbidden

Page 267 U. S. 155

product can be distributed for illegal sale and use. Section 26was intended to reach and destroy the forbidden liquor intransportation, and the provisions for forfeiture of the vehicleand the arrest of the transporter were incidental. The rule fordetermining what may be required before a seizure may be made by acompetent seizing official is not to be determined by the characterof the penalty to which the transporter may be subjected. UnderSection 28, Title II, of the Prohibition Act, the Commissioner ofInternal Revenue, his assistants, agents and inspectors are to havethe power and protection in the enforcement of the Act conferred bythe existing laws relating to the manufacture or sale ofintoxicating liquors. Officers who seize under Section 26 of theProhibition Act are therefore protected by Section 970 of theRevised Statutes, providing that:

"When, in any prosecution commenced on account of the seizure ofany vessel, goods, wares, or merchandise, made by any collector orother officer, under any Act of Congress authorizing such seizure,judgment is rendered for the claimant, but it appears to the courtthat there was reasonable cause of seizure, the court shall cause aproper certificate thereof to be entered, and the claimant shallnot, in such case, be entitled to costs, nor shall the person whomade the seizure, nor the prosecutor, be liable to suit or judgmenton account of such suit or prosecution:Provided, That thevessel, goods, wares, or merchandise be, after judgment, forthwithreturned to such claimant or his agent."

It follows from this that, if an officer seizes an automobile orthe liquor in it without a warrant and the facts as subsequentlydeveloped do not justify a judgment of condemnation and forfeiture,the officer may escape costs or a suit for damages by a showingthat he had reasonable or probable cause for the seizure.Stacey v. Emery,97 U. S. 642. Themeasure of legality of such a seizure is,

Page 267 U. S. 156

therefore, that the seizing officer shall have reasonable orprobable cause for believing that the automobile which he stops andseizes has contraband liquor therein which is being illegallytransported.

We here find the line of distinction between legal and illegalseizures of liquor in transport in vehicles. It is certainly areasonable distinction. It gives the owner of an automobile orother vehicle seized under Section 26, in absence of probablecause, a right to have restored to him the automobile, it protectshim under theWeeks andAmos cases from use ofthe liquor as evidence against him, and it subjects the officermaking the seizures to damages. On the other hand, in a caseshowing probable cause, the Government and its officials are giventhe opportunity which they should have, to make the investigationnecessary to trace reasonably suspected contraband goods and toseize them.

Such a rule fulfills the guaranty of the Fourth Amendment. Incases where the securing of a warrant is reasonably practicable, itmust be used, and when properly supported by affidavit and issuedafter judicial approval, protects the seizing officer against asuit for damages. In cases where seizure is impossible exceptwithout warrant, the seizing officer acts unlawfully and at hisperil unless he can show the court probable cause.UnitedStates v. Kaplan, 286 Fed. 963, 972.

But we are pressed with the argument that, if the search of theautomobile discloses the presence of liquor and leads under thestatute to the arrest of the person in charge of the automobile,the right of seizure should be limited by the common law rule as tothe circumstances justifying an arrest without warrant for amisdemeanor. The usual rule is that a police officer may arrestwithout warrant one believed by the officer upon reasonable causeto have been guilty of a felony, and that he may only arrestwithout a warrant one guilty of misdemeanor if committed

Page 267 U. S. 157

in his presence.Kurtz v. Moffitt,115 U.S. 487;Elk v. United States,177 U.S. 529. The rule is sometimes expressed as follows:

"In cases of misdemeanor, a peace officer, like a privateperson, has at common law no power of arresting without a warrantexcept when a breach of the peace has been committed in hispresence or there is reasonable ground for supposing that a breachof peace is about to be committed or renewed in his presence."

Halsbury's Laws of England, Vol. 9, part III, 612.

The reason for arrest for misdemeanors without warrant at commonlaw was promptly to suppress breaches of the peace, 1 Stephen,History of Criminal Law, 193, while the reason for arrest withoutwarrant on a reliable report of a felony was because the publicsafety and the due apprehension of criminals charged with heinousoffenses required that such arrests should be made at once withoutwarrant.Rohan v. Sawan, 5 Cush. 281. The argument fordefendants is that, as the misdemeanor to justify arrest withoutwarrant must be committed in the presence of the police officer,the offense is not committed in his presence unless he can by hissenses detect that the liquor is being transported, no matter howreliable his previous information by which he can identify theautomobile as loaded with it.Elrod v. Moss, 278 Fed. 123;Hughes v. State, 145 Tenn. 544.

So it is that, under the rule contended for by defendants, theliquor, if carried by one who has been already twice convicted ofthe same offense, may be seized on information other than thesenses, while, if he has been only once convicted, it may not beseized unless the presence of the liquor is detected by the sensesas the automobile concealing it rushes by. This is certainly a veryunsatisfactory line of difference when the main object of thesection is to forfeit and suppress the liquor, the arrest of theindividual being only incidental, as shown by the lightness

Page 267 U. S. 158

of the penalty.See Commonwealth v. Street, 3 Pa.Dist.& Co. Reports, 783. In England at the common law, thedifference in punishment between felonies and misdemeanors was verygreat. Under our present federal statutes, it is much lessimportant, and Congress may exercise a relatively wide discretionin classing particular offenses as felonies or misdemeanors. As themain purpose of Section 26 was seizure and forfeiture, it is not somuch the owner as the property that offends.Agnew v.Haymes, 141 Fed. 631, 641. The language of the sectionprovides for seizure when the officer of the law "discovers" anyonein the act of transporting the liquor by automobile or othervehicle. Certainly it is a very narrow and technical constructionof this word which would limit it to what the officer sees, hearsor smells as the automobile rolls by, and exclude therefrom, whenhe identifies the car, the convincing information that he maypreviously have received as to the use being made of it.

We do not think such a nice distinction is applicable in thepresent case. When a man is legally arrested for an offense,whatever is found upon his person or in his control which it isunlawful for him to have and which may be used to prove the offensemay be seized and held as evidence in the prosecution.Weeks v.United States,232 U. S. 383,232 U. S. 392;Dillon v. O'Brien and Davis, 16 Cox. C.C. 245;Getchell v. Page, 103 Me. 387;Kneeland v.Connally, 70 Ga. 424; 1 Bishop, Criminal Procedure, Sec. 211;1 Wharton, Criminal Procedure (10th edition), Sec. 97. The argumentof defendants is based on the theory that the seizure in this casecan only be thus justified. If their theory were sound, theirconclusion would be. The validity of the seizure then would turnwholly on the validity of the arrest without a seizure. But thetheory is unsound. The right to search and the validity of theseizure are not dependent on the right to arrest. They aredependent on the reasonable cause the seizing officer

Page 267 U. S. 159

has for belief that the contents of the automobile offendagainst the law. The seizure in such a proceeding comes before thearrest, as Section 26 indicates. It is true that Section 26, TitleII, provides for immediate proceedings against the person arrested,and that, upon conviction, the liquor is to be destroyed and theautomobile or other vehicle is to be sold, with the saving of theinterest of a lienor who does not know of its unlawful use; but itis evident that, if the person arrested is ignorant of the contentsof the vehicle, or if he escapes, proceedings can be had againstthe liquor for destruction or other disposition under Section 25 ofthe same title. The character of the offense for which, after thecontraband liquor is found and seized, the driver can be prosecuteddoes not affect the validity of the seizure.

This conclusion is in keeping with the requirements of theFourth Amendment and the principles of search and seizure ofcontraband forfeitable property, and it is a wise one, because itleaves the rule one which is easily applied and understood and isuniform.Holbck v. State, 106 Ohio St.195, accords withthis conclusion.Ash v. United States, 299 Fed. 277 andMilam v. United States, 296 Fed. 629, decisions by theCircuit Court of Appeals for the fourth circuit, take the sameview. TheAsh case is very similar in its facts to thecase at bar, and both were by the same court which decidedSnyder v. United States, 285 Fed. 1, cited for thedefendants.See also Park v. United States (1st C.C.A.)294 Fed. 776, 783, andLambert v. United States, (9thC.C.A.) 282 Fed. 413.

Finally, was there probable cause? InTheApollon, 9 Wheat. 362, the question was whether theseizure of a French vessel at a particular place was upon probablecause that she was there for the purpose of smuggling. In thisdiscussion, Mr. Justice Story, who delivered the judgment of theCourt, said (page22 U. S.374):

"It has been very justly observed at the bar that the Court isbound to take notice of public facts and geographical

Page 267 U. S. 160

positions, and that this remote part of the country has beeninfested, at different periods, by smugglers, is a matter ofgeneral notoriety, and may be gathered from the public documents ofthe government."

We know in this way that Grand Rapids is about 152 miles fromDetroit, and that Detroit and its neighborhood along the DetroitRiver, which is the International Boundary, is one of the mostactive centers for introducing illegally into this countryspirituous liquors for distribution into the interior. It isobvious from the evidence that the prohibition agents were engagedin a regular patrol along the important highways from Detroit toGrand Rapids to stop and seize liquor carried in automobiles. Theyknew or had convincing evidence to make them believe that theCarroll boys, as they called them, were so-called "bootleggers" inGrand Rapids,i.e., that they were engaged in plying theunlawful trade of selling such liquor in that city. The officershad soon after noted their going from Grand Rapids half way toDetroit, and attempted to follow them to that city to see wherethey went, but they escaped observation. Two months later, theseofficers suddenly met the same men on their way westward,presumably from Detroit. The partners in the original combinationto sell liquor in Grand Rapids were together in the same automobilethey had been in the night when they tried to furnish the whisky tothe officers which was thus identified as part of the firmequipment. They were coming from the direction of the great sourceof supply for their stock to Grand Rapids, where they plied theirtrade. That the officers, when they saw the defendants, believedthat they were carrying liquor we can have no doubt, and we thinkit is equally clear that they had reasonable cause for thinking so.Emphasis is put by defendants' counsel on the statement made by oneof the officers that they were not looking for defendants at theparticular time when they appeared. We do not perceive that it hasany weight. As soon as they did appear,

Page 267 U. S. 161

the officers were entitled to use their reasoning faculties uponall the facts of which they had previous knowledge in respect tothe defendants.

The necessity for probable cause in justifying seizures on landor sea, in making arrests without warrant for past felonies, and inmalicious prosecution and false imprisonment cases has led tofrequent definition of the phrase. InStacey v. Emery,97 U. S. 642,97 U. S. 645, asuit for damages for seizure by a collector, this Court definedprobable cause as follows:

"If the facts and circumstances before the officer are such asto warrant a man of prudence and caution in believing that theoffense has been committed, it is sufficient."

Locke v. UnitedStates, 7 Cranch 339;The George, 1 Mason,24;The Thompson,3 Wall. 155. It was laid down by Chief Justice Shaw, inCommonwealth v. Carey, 12 Cush. 246, 251 that

"if a constable or other peace officer arrest a person without awarrant, he is not bound to show in his justification a felonyactually committed, to render the arrest lawful; but if he suspectsone on his own knowledge of facts, or on facts communicated to himby others, and thereupon he has reasonable ground to believe thatthe accused has been guilty of felony, the arrest is notunlawful."

Commonwealth v. Phelps, 209 Mass. 396;Rohan v.Sawin, 5 Cush. 281, 285. InMcCarthy v. De Armit, 99Pa. St. 63, the Supreme Court of Pennsylvania sums up thedefinition of probable cause in this way (page 69):

"The substance of all the definitions is a reasonable ground forbelief in guilt."

In the case of theDirector General v. Kastenbaum,263 U. S. 25, whichwas a suit for false imprisonment, it was said by this Court (page263 U. S.28):

"But, as we have seen, good faith is not enough to constituteprobable cause. That faith must be grounded on facts withinknowledge of the Director General's agent,

Page 267 U. S. 162

which in the judgment of the court would make his faithreasonable."

See also Munn v. e Nemours, 3 Wash.C.C. 37.

In the light of these authorities, and what is shown by thisrecord, it is clear the officers here had justification for thesearch and seizure. This is to say that the facts and circumstanceswithin their knowledge and of which they had reasonably trustworthyinformation were sufficient, in themselves, to warrant a man ofreasonable caution in the belief that intoxicating liquor was beingtransported in the automobile which they stopped and searched.

Counsel finally argue that the defendants should be permitted toescape the effect of the conviction because the court refused onmotion to deliver them the liquor when, as they say, the evidenceadduced on the motion was much less than that shown on the trial,and did not show probable cause. The record does not make it clearwhat evidence was produced in support of or against the motion.But, apart from this, we think the point is without substance here.If the evidence given on the trial was sufficient, as we think itwas, to sustain the introduction of the liquor as evidence, it isimmaterial that there was an inadequacy of evidence whenapplication was made for its return. A conviction on adequate andadmissible evidence should not be set aide on such a ground. Thewhole matter was gone into at the trial, so no right of thedefendants was infringed.

Counsel for the Government contend that Kiro, the defendant whodid not own the automobile, could not complain of the violation ofthe Fourth Amendment in the use of the liquor as evidence againsthim, whatever the view taken as to Carroll's rights. Our conclusionas to the whole case makes it unnecessary for us to discuss thisaspect of it.

The judgment is

Affirmed.

Page 267 U. S. 163

MR. JUSTICE MCKENNA, before his retirement, concurred in thisopinion.

The separate opinion of MR. JUSTICE McREYNOLDS concurred in byMR. JUSTICE SUTHERLAND.

1. The damnable character of the "bootlegger's" business shouldnot close our eyes to the mischief which will surely follow anyattempt to destroy it by unwarranted methods.

"To press forward to a great principle by breaking through everyother great principle that stands in the way of its establishment;. . . in short, to procure an imminent good by means that areunlawful, is as little consonant to private morality as to publicjustice."

Sir William Scott,The Louis, 2 Dolson 210, 257.

While quietly driving an ordinary automobile along a muchfrequented public road, plaintiffs in error were arrested byFederal officers without a warrant and upon mere suspicion --ill-founded, as I think. The officers then searched the machine anddiscovered carefully secreted whisky, which was seized andthereafter used as evidence against plaintiffs in error when ontrial for transporting intoxicating liquor contrary to the VolsteadAct (c. 85, 41 Stat. 305). They maintain that both arrest andseizure were unlawful, and that use of the liquor as evidenceviolated their constitutional rights.

This is not a proceeding to forfeit seized goods; nor is it anaction against the seizing officer for a tort. Cases like thefollowing are not controlling:Crowell v.M'Fadon, 8 Cranch 94,12U. S. 98;United States v. 1960 Bags ofCoffee, 8 Cranch 398, 403 [argument of counsel --omitted],12 U. S. 405;Otis v.Watkins, 9 Cranch 339;Gelston v.Hoyt, 3 Wheat. 246,16 U. S. 310,16 U. S. 318;Wood v. UnitedStates, 16 Pet. 342;Taylor v.United States, 3 How. 197,44 U. S. 205.They turned upon express provisions of applicable Acts of Congress;they did not involve the point now presented, and afford little, ifany, assistance toward its proper solution. The Volstead Act doesnot, in terms, authorize arrest or seizure upon mere suspicion.

Page 267 U. S. 164

Whether the officers are shielded from prosecution or action byRev.Stat. Sec. 970 is not important. That section does notundertake to deprive the citizen of any constitutional right, or topermit the use of evidence unlawfully obtained. It does, however,indicate the clear understanding of Congress that probable cause isnot always enough to justify a seizure.

Nor are we now concerned with the question whether, by aptwords, Congress might have authorized the arrest without a warrant.It has not attempted to do this. On the contrary, the whole historyof the legislation indicates a fixed purpose not so to do. Firstand second violations are declared to be misdemeanors -- nothingmore -- and Congress, of course, understood the rule concerningarrests for such offenses. Whether different penalties should havebeen prescribed or other provisions added is not for us to inquire;nor do difficulties attending enforcement give us power tosupplement the legislation.

2. As the Volstead Act contains no definite grant of authorityto arrest upon suspicion and without warrant for a first offense,we come to inquire whether such authority can be inferred from itsprovisions.

Unless the statute which creates a misdemeanor contains someclear provision to the contrary, suspicion that it is beingviolated will not justify an arrest. Criminal statutes must bestrictly construed and applied, in harmony with rules of the commonlaw.United States v. Harris,177 U.S. 305,177 U. S. 310.And the well settled doctrine is that an arrest for a misdemeanormay not be made without a warrant unless the offense is committedin the officer's presence.

Kurtz v. Moffitt,115 U. S. 487,115 U. S. 498--

"By the common law of England, neither a civil officer nor aprivate citizen had the right without a warrant to make an arrestfor a crime not committed in his presence except in the case

Page 267 U. S. 165

of felony, and then only for the purpose of bringing theoffender before a civil magistrate."

Elk v. United States,177 U. S. 529,177 U. S. 531--

"An officer, at common law, was not authorized to make an arrestwithout a warrant, for a mere misdemeanor not committed in hispresence."

Commonwealth v. Wright, 158 Mass. 149, 158 --

"It is suggested that the statutory misdemeanor of having inone's possession short lobsters with intent to sell them is acontinuing offence, which is being committed while such possessioncontinues, and that, therefore, an officer who sees any person inpossession of such lobsters with intent to sell them can arrestsuch person without a warrant, as for a misdemeanor committed inhis presence. We are of opinion, however, that for statutorymisdemeanors of this kind, not amounting to a breach of the peace,there is no authority in an officer to arrest without a warrantunless it is given by statute. . . . The Legislature has oftenempowered officers to arrest without warrant for similar offenses,which perhaps tends to show that, in its opinion, no such rightexists at common law."

Pinkerton v. Verberg, 78 Mich. 573, 584 --

"Any law which would place the keeping and safe conduct ofanother in the hands of even a conservator of the peace, unless forsome breach of the peace committed in his presence, or uponsuspicion of felony, would be most oppressive and unjust, anddestroy all the rights which our Constitution guarantees. These arerights which existed long before our Constitution, and we havetaken just pride in their maintenance, making them a part of thefundamental law of the land. . . . If persons can be restrained oftheir liberty, and assaulted and imprisoned, under suchcircumstances, without complaint or warrant, then there is no limitto the power of a police officer."

3. The Volstead Act contains no provision which annuls theaccepted common law rule or discloses definite intent

Page 267 U. S. 166

to authorize arrests without warrant for misdemeanors notcommitted in the officer's presence.

To support the contrary view, Section 26 is relied upon --

"When . . . any officer of the law shall discover any person inthe act of transporting in violation of the law, intoxicatingliquors in any wagon, buggy, automobile, water or aircraft, orother vehicle, it shall be his duty to seize any and allintoxicating liquors found therein being transported contrary tolaw. Whenever intoxicating liquors transported or possessedillegally shall be seized by an officer, he shall take possessionof the vehicle and team or automobile, boat, air or water craft, orany other conveyance, and shall arrest any person in chargethereof."

Let it be observed that this section has no special applicationto automobiles; it includes any vehicle -- buggy, wagon, boat orair craft. Certainly, in a criminal statute, always to be strictlyconstrued, the words "shall discover. . . in the act oftransporting in violation of the law" cannot mean shall havereasonable cause to suspect or believe that such transportation isbeing carried on. To discover and to suspect are wholly differentthings. Since the beginning, apt words have been used when Congressintended that arrests for misdemeanors or seizures might be madeupon suspicion. It has studiously refrained from making a felony ofthe offense here charged, and it did not undertake by any apt wordsto enlarge the power to arrest. It was not ignorant of theestablished rule on the subject, and well understood how this couldbe abrogated, as plainly appears from statutes like the following:"An Act to regulate the collection of duties on imports andtonnage," approved March 2, 1789, c. 22, 1 Stat. 627, 677, 678;

"An Act to provide more effectually for the collection of theduties imposed by law on goods, wares and merchandise imported

Page 267 U. S. 167

into the United States, and on the tonnage of ships orvessels,"

approved August 4, 1790, c. 35, 1 Stat. 145, 170; "An Actfurther to provide for the collection of duties on imports andtonnage," approved March 3, 1815, c. 94, 3 Stat. 231, 232. Theseand similar Acts definitely empowered officers to seize uponsuspicion and therein radically differ from the Volstead Act, whichauthorized no such thing.

"An Act supplemental to the National Prohibition Act," approvedNovember 23, 1921, c. 134, 42 Stat. 222, 223, provides --

"That any officer, agent, or employee of the United Statesengaged in the enforcement of this Act, or the National ProhibitionAct, or any other law of the United States, who shall search anyprivate dwelling as defined in the National Prohibition Act, andoccupied as such dwelling, without a warrant directing such search,or who while so engaged shall without a search warrant maliciouslyand without reasonable cause search any other building or property,shall be guilty of a misdemeanor and upon conviction thereof shallbe fined for a first offense not more than $1,000, and for asubsequent offense not more than $1,000 or imprisoned not more thanone year, or both such fine and imprisonment."

And it is argued that the words and history of this sectionindicate the intent of Congress to distinguish between thenecessity for warrants in order to search private dwellings and theright to search automobiles without one. Evidently Congressregarded the searching of private dwellings as matter of muchgraver consequence than some other searches, and distinguishedbetween them by declaring the former criminal. But the connectionbetween this distinction and the legality of plaintiffs in error'sarrest is not apparent. Nor can I find reason for inquiringconcerning the validity of the distinction under the FourthAmendment. Of course, the distinction is

Page 267 U. S. 168

valid, and so are some seizures. But what of it? The Act madenothing legal which theretofore was unlawful, and to conclude that,by declaring the unauthorized search of a private dwellingcriminal, Congress intended to remove ancient restrictions fromother searches and from arrests as well would seem impossible.

While the Fourth Amendment denounces only unreasonable seizures,unreasonableness often depends upon the means adopted. Here, theseizure followed an unlawful arrest, and therefore became itselfunlawful -- as plainly unlawful as the seizure within the home sovigorously denounced inWeeks v. United States,232 U. S. 383,232 U. S. 391,232 U. S. 392,232 U. S.393.

InSnyder v. United States, 285 Fed. 1, 2, the Court ofAppeals, Fourth Circuit, rejected evidence obtained by anunwarranted arrest, and clearly announced some very wholesomedoctrine:

"That an officer may not make an arrest for a misdemeanor notcommitted in his presence, without a warrant, has been sofrequently decided as not to require citation of authority. It isequally fundamental that a citizen may not be arrested on suspicionof having committed a misdemeanor and have his person searched byforce, without a warrant of arrest. If, therefore, the arrestingofficer in this case had no other justification for the arrest thanthe mere suspicion that a bottle, only the neck of which he couldsee protruding from the pocket of defendant's coat, containedintoxicating liquor, then it would seem to follow without muchquestion that the arrest and search, without first having secured awarrant, were illegal. And that his only justification was hissuspicion is admitted by the evidence of the arresting officerhimself. If the bottle had been empty, or if it had containedanyone of a dozen innoxious liquids, the act of the officer would,admittedly, have been an unlawful invasion of the personal libertyof the defendant. That it happened in this instance to containwhisky, we think,

Page 267 U. S. 169

neither justifies the assault nor condemns the principle whichmakes such an act unlawful."

The validity of the seizure under consideration depends on thelegality of the arrest. This did not follow the seizure, but thereverse is true. Plaintiffs in error were first brought within theofficers' power, and, while therein, the seizure took place. If anofficer, upon mere suspicion of a misdemeanor, may stop one on thepublic highway, take articles away from him, and thereafter usethem as evidence to convict him of crime, what becomes of theFourth and Fifth Amendments?

InWeeks v. United States, supra, through Mr. JusticeDay, this court said:

"The effect of the Fourth Amendment is to put the courts of theUnited States and Federal officials, in the exercise of their powerand authority, under limitations and restraints as to the exerciseof such power and authority, and to forever secure the people,their persons, houses, papers and effects against all unreasonablesearches and seizures under the guise of law. This protectionreaches all alike, whether accused of crime or not, and the duty ofgiving to it force and effect is obligatory upon all entrustedunder our Federal system with the enforcement of the laws. Thetendency of those who execute the criminal laws of the country toobtain conviction by means of unlawful seizures and enforcedconfessions, the latter often obtained after subjecting accusedpersons to unwarranted practices destructive of rights secured bythe Federal Constitution, should find no sanction in the judgmentsof the courts which are charged at all times with the support ofthe Constitution and to which people of all conditions have a rightto appeal for the maintenance of such fundamental rights. . . . Theefforts of the courts and their officials to bring the guilty topunishment, praiseworthy as they are, are not to be aided by thesacrifice of those great principles established by years ofendeavor and suffering which have

Page 267 U. S. 170

resulted in their embodiment in the fundamental law of theland."

Silverthorne Lumber Co. v. United States,251 U.S. 385,251 U. S.391:

"The proposition could not be presented more nakedly. It isthat, although, of course, its seizure was an outrage which theGovernment now regrets, it may study the papers before it returnsthem, copy them, and then may use the knowledge that it has gainedto call upon the owners in a more regular form to produce them;that the protection of the Constitution covers the physicalpossession, but not any advantages that the Government can gainover the object of its pursuit by doing the forbidden act.Weeks v. United States,232 U. S. 383, to be sure, hadestablished that laying the papers directly before the grand jurywas unwarranted, but it is taken to mean only that two steps arerequired instead of one. In our opinion, such is not the law. Itreduces the Fourth Amendment to a form of words. 232 U.S.232 U. S. 393. The essenceof a provision forbidding the acquisition of evidence in a certainway is that not merely evidence so acquired shall not be usedbefore the court, but that it shall not be used at all. Of course,this does not mean that the facts thus obtained become sacred andinaccessible. If knowledge of them is gained from an independentsource, they may be proved like any others, but the knowledgegained by the Government's own wrong cannot be used by it in theway proposed."

Gouled v. United States,255 U.S. 298, andAmos v. United States,255 U.S. 313, distinctly point out that property procured byunlawful action of Federal officers cannot be introduced asevidence.

The arrest of plaintiffs in error was unauthorized, illegal andviolated the guarantee of due process given by the Fifth Amendment.The liquor offered in evidence was obtained by the search whichfollowed this arrest, and was therefore obtained in violation oftheir constitutional

Page 267 U. S. 171

rights. Articles found upon or in the control of one lawfullyarrested may be used as evidence for certain purposes, but not atall when secured by the unlawful action of a Federal officer.

4. The facts known by the officers who arrested plaintiffs inerror were wholly insufficient to create a reasonable belief thatthey were transporting liquor contrary to law. These facts weredetailed by Fred Cronenwelt, chief prohibition officer. His entiretestimony as given at the trial follows --

"I am in charge of the Federal Prohibition Department in thisDistrict. I am acquainted with these two respondents, and first sawthem on September 29, 1921, in Mr. Scully's apartment on OakesStreet, Grand Rapids. There were three of them that came to Mr.Scully's apartment, one by the name of Kruska, George Kiro and JohnCarroll. I was introduced to them under the name of Stafford, andtold them I was working for the Michigan Chair Company, and wantedto buy three cases of whisky, and the price was agreed upon. Afterthey thought I was all right, they said they would be back in halfor three-quarters of an hour; that they had to go out to the eastend of Grand Rapids, to get this liquor. They went away and cameback in a short time, and Mr. Kruska came upstairs and said theycouldn't get it that night; that a fellow by the name of Irving,where they were going to get it, wasn't in, but they were going todeliver it the next day, about ten. They didn't deliver it the nextday. I am not positive about the price. It seems to me it wasaround $130 a case. It might be $135. Both respondents took part inthis conversation. When they came to Mr. Scully's apartment, theyhad this same car. While it was dark and I wasn't able to get agood look at this car, later, on the sixth day of October, when Iwas out on the road with Mr. Scully, I was waiting on the highwaywhile he went to Reed's Lake to get a light

Page 267 U. S. 172

lunch, and they drove by, and I had their license number and theappearance of their car, and knowing the two boys, seeing them onthe 29th day of September, I was satisfied when I seen the car onDecember 15th it was the same car I had seen on the 6th day ofOctober. On the 6th day of October, it was probably twenty minutesbefore Scully got back to where I was. I told him the Carroll boyshad just gone toward Detroit and we were trying to catch up withthem and see where they were going. We did catch up with themsomewhere along by Ada, just before we got to Ada, and followedthem to East Lansing. We gave up the chase at East Lansing."

"On the 15th of December, when Peterson and Scully and Ioverhauled this car on the road, it was in the country, on Pike 16,the road leading between Grand Rapids and Detroit. When we passedthe car, we were going toward Ionia, or Detroit, and the Kiro andCarroll boys were coming towards Grand Rapids when Mr. Scully and Irecognized them and said 'there goes the Carroll brothers,' and wewent on still further in the same direction we were going andturned around and went back to them; drove up to the side of them.Mr. Scully was driving the car; I was sitting in the front seat,and I stepped out on the running board and held out my hand andsaid, 'Carroll, stop that car,' and they did stop it. John Kiro wasdriving the car. After we got them stopped, we asked them to getout of the car, which they did. Carroll referred to me and calledme by the name of 'Fred' just as soon as I got up to him. Raised upthe back part of the roadster; didn't find any liquor there; thenraised up the cushion; then I struck at the lazyback of the seatand it was hard. I then started to open it up, and I did tear thecushion some, and Carroll said, 'Don't tear the cushion; we haveonly got six cases in there;' and I took out two bottles and foundout it was liquor; satisfied it was liquor. Mr. Peterson and afellow by the

Page 267 U. S. 173

name of Gerald Donker came in with the two Carroll boys and theliquor and the car to Grand Rapids. They brought the two defendantsand the car and the liquor to Grand Rapids. I and the other menbesides Peterson stayed out on the road, looking for other carsthat we had information were coming in. There was conversationbetween me and Carroll before Peterson started for town with thedefendants. Mr. Carroll said, 'Take the liquor and give us one morechance and I will make it right with you.' At the same time, hereached in one of his trousers pockets and pulled out money; theamount of it I don't know. I wouldn't say it was a whole lot. I sawa ten dollar bill, and there was some other bills; I don't know howmuch there was; it wasn't a large amount."

"As I understand, Mr. Hanley helped carry the liquor from thecar. On the next day afterwards, we put this liquor in boxes, steelboxes, and left it in the Marshal's vault, and it is still therenow. Mr. Hanley and Chief Deputy Johnson, some of the agents andmyself were there. Mr. Peterson was there the next day that thelabels were signed by the different officers; those two bottles,Exhibits 'A' and 'B.'"

"Q. Now, those two bottles, Exhibits 'A' and 'B,' were those thetwo bottles you took out of the car out there, or were those twobottles taken out of the liquor after it go up here?"

"A. We didn't label them out on the road; simply found it wasliquor and sent it in, and this liquor was in Mr. Hanley's custodythat evening and during the middle of the next day when we checkedit over to see the amount of liquor that was there. Mr. Johnson andI sealed the bottles and Mr. Johnson's name is on the label thatgoes over the box with mine, and this liquor was taken out of thecase today. It was taken out for the purpose of analyzation. Theothers were not broken until today. "

Page 267 U. S. 174

"Q. And are you able to tell us, from the label and from thebottles, whether it is part of the same liquor taken out of thatcar? A. It has the appearance of it, yes sir. Those are the bottlesthat were in there that Mr. Hanley said was gotten out of theCarroll car."

"[Cross-examination.] I think I was the first one to get back tothe Carroll car after it was stopped. I had a gun in my pocket; Ididn't present it. I was the first one to the car, and raised upthe back of the car, but the others were there shortly afterward.We assembled right around the car immediately."

"Q. And whatever examination and what investigation you made youwent right ahead and did it in your own way? A. Yes, sir."

"Q. And took possession of it, arrested them, and brought themin? A. Yes, sir."

"Q. And at that time, of course, you had no search warrant? A.No, sir. We had no knowledge that this car was coming through atthat particular time."

"[Redirect examination.] The lazyback was awfully hard when Istruck it with my fist. It was harder than upholstery ordinarily isin those backs; a great deal harder. It was practically solid.Sixty-nine quarts of whiskey in one lazyback."

The negotiation concerning three cases of whisky on September29th was the only circumstance which could have subjectedplaintiffs in error to any reasonable suspicion. No whisky wasdelivered, and it is not certain that they ever intended to deliverany. The arrest came two and a half months after the negotiation.Every act in the meantime is consistent with complete innocence.Has it come about that merely because a man once agreed to deliverwhisky, but did not, he may be arrested whenever thereafter heventures to drive an automobile on the road to Detroit!

5. When Congress has intended that seizures or arrests might bemade upon suspicion, it has been careful to say

Page 267 U. S. 175

so. The history and terms of the Volstead Act are not consistentwith the suggestion that it was the purpose of Congress to grantthe power here claimed for enforcement officers. The facts knownwhen the arrest occurred were wholly insufficient to engenderreasonable belief that plaintiffs in error were committing amisdemeanor, and the legality of the arrest cannot be supported byfacts ascertained through the search which followed.

To me, it seems clear enough that the judgment should bereversed.

I am authorized to say that MR. JUSTICE SUTHERLAND concurs inthis opinion.