U.S. Supreme Court

Agnello v. United States,269 U.S.20 (1925)Agnello v. UnitedStates

No. 6

Argued April 23, 1925

Decided October 12,1925

269 U.S.20

CERTIORARI TO THE CIRCUIT COURT OFAPPEALS

FOR THE SECONDCIRCUIT

Syllabus

1. The right without a search warrant contemporaneously tosearch persons lawfully arrested while committing crime and tosearch the place where the arrest is made in order to find andseize things connected with the crime as its fruits or as the meansby which it was committed, as well as weapons and other things toeffect an escape from custody, is not to be doubted. P.269 U. S.30.

2. But this right, which is incidental to the arrest, cannotextend to the search of a man's dwelling, several blocks distantfrom the place of his arrest, after the offense has been committedand while he is in custody elsewhere.Carroll v. UnitedStates,267 U. S. 132,distinguished.Id.

3. Soheld assuming that the house searched, which wasthe house of one A who had shortly before been arrested with otherswho were in the act of consummating a conspiracy to violate theAnti-Narcotic Act by selling cocaine without having registered andpaid the prescribed tax, was the place from which the cocaine soldhad been taken by some of the defendants to the place of sale, andthat other cocaine, discovered in the house by the search, wasthere in A's control in violation of the Act, was subject toforfeiture thereunder, and was part of the cocaine constituting thesubject matter of the conspiracy.Id.

4. Belief, however well founded, that an article sought isconcealed in a dwelling house furnishes no justification for asearch in the house without a warrant; such searches are unlawfulnotwithstanding facts unquestionably showing probable cause. P.269 U. S.32.

5. When properly invoked, the Fifth Amendment protects everyperson from incrimination by the use of evidence obtained throughsearch or seizure made in violation of his rights under the FourthAmendment. P.269 U. S.33.

6. Where, by uncontroverted facts, it appears that a search andseizure were made in violation of the Fourth Amendment, there is noreason why one whose rights have been so violated and whom it issought to incriminate by evidence so obtained may not invokeprotection of the Fifth Amendment immediately, by objection

Page 269 U. S. 21

to the evidence, without having made any application for thereturn of the thing seized. P.269 U. S.34.

7. Evidence of an unlawful search of an accused person's houseand of seizure therein of an incriminating article cannot beintroduced against him at the trial as evidence in rebuttal of histestimony on cross-examination that he never saw the article. P.269 U. S.35.

8. Where several are tried jointly and convicted for conspiracy,erroneous admission of evidence of an unlawful search and seizurein the dwelling of one will not require a reversal as to the otherif the evidence was adduced only against the one, in proof ofguilty knowledge and intent in performing acts with the others forexecuting the conspiracy, since they would be equally guiltywhether he acted as guilty participant or as their innocent agent.P.269 U. S.35.

20 F. 671 reversed in part, affirmed in part.

Certiorari to a judgment of the circuit court of appealsaffirming a conviction and judgment in the district court on aprosecution of the petitioners (named in the opinion) forconspiracy to violate the Federal Narcotic Tax Act.

Page 269 U. S. 27

MR. JUSTICE BUTLER delivered the opinion of the Court.

Thomas Agnello, Frank Agnello, Stephen Alba, Antonio Centorino,and Thomas Pace were indicted in the District Court, EasternDistrict of New York, under § 37, Criminal Code, 35 Stat. 1088,1096, c. 321 for a conspiracy to violate the Harrison Act, 38 Stat.785, c. 1, as amended by

Page 269 U. S. 28

§§ 1006, 1007, 1008 of the Revenue Act of 1918, c. 18, 40 Stat.1057, 1130. The indictment charges that defendants conspiredtogether to sell cocaine without having registered with thecollector of internal Revenue and without having paid theprescribed tax. The overt acts charged are that defendants hadcocaine in their possession, solicited the sale of it, met in thehome of defendant Alba at 138 Union Street, Brooklyn, and madearrangements for the purpose of selling it, brought a largequantity of it to that place, and sold it in violation of the Act.The jury found defendants guilty. Each was sentenced to serve twoyears in the penitentiary and to pay a fine of $5,000. The circuitcourt of appeals affirmed the judgment. 290 F. 671.

The evidence introduced by the government was sufficient towarrant a finding of the following facts: Paspuale Napolitano andNunzio Dispenza, employed by government revenue agents for thatpurpose, went to the home of Alba, Saturday, January 14, 1922, andthere offered by buy narcotics from Alba and Centorino. Alba gavethem some samples. They arranged to come again on Monday following.They returned at the time agreed. Six revenue agents and a citypoliceman followed them and remained on watch outside. Alba leftthe house and returned with Centorino. They did not then produceany drug. After discussion and the refusal of Napolitano andDispenza to go to Centorino's house to get the drug, Centorino wentto fetch it. He was followed by some of the agents. He first wentto his own house, 172 Columbia Street; thence to 167 ColumbiaStreet, one part of which was a grocery store belonging to Pace andThomas Agnello, and another part of which, connected with thegrocery store, was the home of Frank Agnello and Pace. In a shorttime, Centorino, Pace, and the Agnellos came out of thelast-mentioned place, and all went to Alba's house. Looking throughthe windows, those on watch saw

Page 269 U. S. 29

Frank Agnello produce a number of small packages for delivery toNapolitano and saw the letter hand over money to Alba. Upon theapparent consummation of the sale, the agents rushed in andarrested all the defendants. They found some of the packages on thetable where the transaction took place, and found others in thepockets of Frank Agnello. All contained cocaine. On searching Alba,they found the money given him by Napolitano.

And, as a part of its case in chief, the government offeredtestimony tending to show that, while some of the revenue agentswere taking the defendants to the police station, the others andthe city policeman went to the home of Centorino and searched it,but did not find any narcotics; that they then went to 167 ColumbiaStreet and searched it, and in Frank Agnello's bedroom found a canof cocaine, which was produced and offered in evidence. Theevidence was excluded on the ground that the search and seizurewere made without a search warrant. In defense, Centorino andothers gave testimony to the effect that the packages of cocainewhich were brought to and seized in Alba's house at the time of thearrests had been furnished to Centorino by Dispenza to induce anapparent sale of cocaine to Napolitano -- that is, to incite crimeor acts having the appearance of crime for the purpose ofentrapping and punishing defendants. Centorino testified that,after leaving Napolitano and Dispenza with Alba at the latter'shome, he went to his own house and got the packages of cocainewhich had been given him by Dispenza, and took them to 167 ColumbiaStreet, and there a gave them to Frank Agnello to be taken toAlba's house. Frank Agnello testified on direct examination that hereceived the packages from Centorino, but that he did not knowtheir contents, and that he would not have carried them if he hadknown that they contained cocaine or narcotics. Oncross-examination, he said that he had never seen narcotics. Then,notwithstanding objection

Page 269 U. S. 30

by defendants, the prosecuting attorney produced the can ofcocaine which the government claimed was seized in Agnello'sbedroom and asked him whether he had ever seen it. He said he hadnot, and specifically stated he had never seen it in his house. Inrebuttal, over objections of defendants, the government waspermitted to put in the evidence of the search and seizure of thecan of cocaine in Frank Agnello's room, which theretofore had beenoffered and excluded.

The case involves the questions whether search of the house ofFrank Agnello and seizure of the cocaine there found, without asearch warrant, violated the Fourth Amendment, and whether theadmission of evidence of such search and seizure violated the FifthAmendment. The Fourth Amendment is:

"The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizuresshall 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 persons or things to beseized."

The provision of the Fifth Amendment invoked is this: "No person. . . shall be compelled in any criminal case to be a witnessagainst himself."

The right without a search warrant contemporaneously to searchpersons lawfully arrested while committing crime and to search theplace where the arrest is made in order to find and seize thingsconnected with the crime as its fruits or as the means by which itwas committed, as well as weapons and other things to effect anescape from custody is not to be doubted.See Carroll v. UnitedStates,267 U. S. 132,267 U. S. 158;Weeks v. United States,232 U. S. 383,232 U. S. 392.The legality of the arrests or of the searches and seizures made atthe home of Alba is not questioned. Such searches and seizuresnaturally and usually appertain to and attend such arrests. But theright does not extend to other places. Frank Agnello's

Page 269 U. S. 31

house was several blocks distant from Alba's house, where thearrest was made. When it was entered and searched, the conspiracywas ended and the defendants were under arrest and in custodyelsewhere. That search cannot be sustained as an incident of thearrests.See Silverthorne Lumber Co. v. United States,251 U. S. 385,251 U. S. 391;People v. Conway, 225 Mich. 152;Gamble v. Keyes,35 S.D. 645, 650.

Under the Harrison Act (§ 8, and § 1 as amended by § 1006), itis unlawful for any person, who has not registered and paid aspecial tax, to have cocaine in his possession, and all unstampedpackages of such drug found in his possession are subject toforfeiture. We assume, as contended by the government, thatdefendants obtained from Frank Agnello's house the cocaine that wastaken to Alba's house and there seized; that the can of cocainewhich later was found in Agnello's house was unlawfully in hiscontrol and subject to seizure, and that it was a part of thecocaine which was the subject matter of the conspiracy.

The government citesCarroll v. United States, supra,but it does not support the search and seizure complained of. Thatcase involved the legality of a search of an automobile and theseizure of intoxicating liquors being transported therein inviolation of the National Prohibition Act. The search and seizurewere made by prohibition agents without a warrant. After referenceto various acts of Congress relating to the seizure of contrabandgoods, the Court said (p.267 U. S.153):

"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

Page 269 U. S. 32

search of a ship, motorboat, wagon, or automobile, forcontraband goods, where it is not practicable to secure a warrant,because the vehicle can be quickly moved out of the locality orjurisdiction in which the warrant must be sought."

It was held that:

"The facts and circumstances within their knowledge and of whichthey had reasonably trustworthy information were sufficient inthemselves to warrant a man of reasonable caution in the beliefthat intoxicating liquor was being transported in the automobilewhich they stopped and searched."

P.267 U. S. 162.And, on that ground, the Court held the search and seizure withoutwarrant justified.

While the question has never been directly decided by thisCourt, it has always been assumed that one's house cannot lawfullybe searched without a search warrant, except as an incident to alawful arrest therein.Boyd v. United States,116 U.S. 616,116 U. S. 624,et seq.,116 U. S. 630;Weeks v. United States, supra,232 U. S. 393;Silverthorne Lumber Co. v. United States, supra,251 U. S. 391;Gouled v. United States,255 U. S. 298,255 U. S. 308.The protection of the Fourth Amendment extends to all equally tothose justly suspected or accused as well as to the innocent. Thesearch of a private dwelling without a warrant is, in itself,unreasonable and abhorrent to our laws. Congress has never passedan act purporting to authorize the search of a house without awarrant. On the other hand, special limitations have been set aboutthe obtaining of search warrants for that purpose. Thus, theNational Prohibition Act, approved October 28, 1919, c. 85, Tit. 2,§ 25, 41 Stat. 305, 315, provides that no search warrant shallissue to search any private dwelling occupied as such unless it isbeing used for the unlawful sale of intoxicating liquor or is inpart used for business purposes, such as store, shop, saloon,restaurant, hotel, or boarding house. And later, to the end thatgovernment employees without a warrant shall not invade the homesof the people and violate the privacies

Page 269 U. S. 33

of life, Congress made it a criminal offense, punishable byheavy penalties, for any officer, agent or employee of the UnitedStates engaged in the enforcement of any law to search a privatedwelling house without a warrant directing such search. Act ofNovember 23, 1921, c. 134, § 6, 42 Stat. 222, 223. Safeguardssimilar to the Fourth Amendment are deemed necessary and have beenprovided in the constitution or laws of every state of the Union.* We think there isno state statute authorizing the search of a house without awarrant, and in a number of state laws recently enacted for theenforcement of prohibition in respect of intoxicating liquors,there are provisions similar to those in § 25 of the NationalProhibition Act. Save in certain cases as incident to arrest, thereis no sanction in the decisions of the courts, federal or state,for the search of a private dwelling house without a warrant.Absence of any judicial approval is persuasive authority that it isunlawful.See Entick v. Carrington, 19 Howard's stateTrials, 1030, 1066. Belief, however well founded, that an articlesought is concealed in a dwelling house furnishes no justificationfor a search of that place without a warrant. And such searches areheld unlawful notwithstanding facts unquestionably showing probablecause.See Temperani v. United States, 299 F. 365;United States v. Rembert, 284 F. 996, 1000;Connellyv. United States, 275 F. 509;McClurg v. Brenton, 123Iowa 368, 372;People v. Margolis, 220 Mich. 431;Childers v. Commonwealth, 198 Ky. 848;State v.Warfield, 184 Wis. 56. The search of Frank Agnello's house andseizure of the can of cocaine violated the Fourth Amendment.

It is well settled that, when properly invoked, the FifthAmendment protects every person from incrimination by

Page 269 U. S. 34

the use of evidence obtained through search or seizure made inviolation of his rights under the Fourth Amendment.Boyd v.United States, supra,116 U. S. 630et seq.; Weeks v. United States,supra,232 U. S. 398;Silverthorne Lumber Co. v. United States, supra,251 U. S.391-392;Gouled v. United States, supra,255 U. S. 306;Amos v. United States,255 U. S. 313,255 U. S.316.

The government contends that, even if the search and seizurewere unlawful, the evidence was admissible because no applicationon behalf of defendant was made to the court for the return of thecan of cocaine. The reason for such application, where required, isthat the court will not pause in a criminal case to determinecollateral issues as to how the evidence was obtained.SeeAdams v. New York,192 U. S. 585,192 U. S. 594,aff'g People v. Adams, 176 N.Y. 351. But, in this case,the facts disclosing that the search and seizure violated theFourth Amendment were not in controversy. They were shown by theexamination of the witness called to give the evidence. There wasno search warrant, and from the first the position of thegovernment has ben that none was necessary. In substance, FrankAgnello testified that he never had possession of the can ofcocaine, and never saw it until it was produced in court. There isnothing to show that, in advance of its offer in evidence, he knewthat the government claimed it had searched his house and foundcocaine there, or that the prosecutor intended to introduceevidence of any search or seizure. It would be unreasonable to holdthat he was bound to apply for the return of an article which hemaintained he never had. Where, by uncontroverted facts, it appearsthat a search and seizure were made in violation of the FourthAmendment, there is no reason why one whose rights have been soviolated, and who is sought to be incriminated by evidence soobtained, may not invoke protection of the Fifth Amendmentimmediately, and without any application for the return of thething seized. "A rule of practice must not be allowed for anytechnical reason to prevail over

Page 269 U. S. 35

a constitutional right."Gouled v. United States,supra,255 U. S. 313.

And the contention that the evidence of the search and seizurewas admissible in rebuttal is without merit. In his directexamination, Agnello was not asked and did not testify concerningthe can of cocaine. In cross-examination, in answer to a questionpermitted over his objection, he said he had never seen it. He didnothing to waive his constitutional protection or to justifycross-examination in respect of the evidence claimed to have beenobtained by the search. As said inSilverthorne Lumber Co. v.United States, supra,251 U. S. 392:

"The essence of a provision forbidding the acquisition ofevidence in a certain way is that not merely evidence so acquiredshall not be used before the court, but that it shall not be usedat all."

The admission of evidence obtained by the search and seizure waserror, and prejudicial to the substantial rights of Frank Agnello.The judgment against him must be set aside, and a new trialawarded.

But the judgment against the other defendants may stand. Theintroduction of the evidence of the search and seizure did nottransgress their constitutional rights. And it was not prejudicialerror against them. The possession by Frank Agnello of the can ofcocaine which was seized tended to show guilty knowledge andcriminal intent on his part; but it was not submitted asattributable to the other defendants. During the summing up of thecase to the jury by the prosecuting attorney, the court distinctlyindicated that the evidence was admissible only against FrankAgnello. The other defendants did not request any instruction tothe jury in reference to the matter, and they do not contend thatany erroneous instruction was given.Isaacs v. UnitedStates,159 U. S. 487,159 U. S. 491.

The packages of cocaine seized at Alba's house were carried tothat place by Frank Agnello. He did this at the instance ofCentorino, and in his behalf it is claimed he acted innocently andwithout knowledge of the contents

Page 269 U. S. 36

of the package. The evidence of the search and seizure made inhis house tended to show that he knew what he was doing and was awilling participant in the conspiracy charged. But, so far asconcerns the other defendants, it is immaterial whether he actedinnocently and without knowledge of the contents of the package orknowingly to effect the object of the conspiracy. In either case,his act would be equally chargeable to his codefendants. They arenot entitled to a new trial.See Rossi v. United States,278 F. 349, 354;Belfi v. United States, 259 F. 822, 828;Feder et al. v. United States, 257 F. 694;Browne v.United States, 145 F. 1, 13;United States v. Cohn,128 F. 615, 626.

Judgment against Frank Agnello reversed; judgment againstother defendants affirmed.

*See p. 1268, Index Digest of state constitutions(prepared for New York state constitutional Convention Commission,1915); also, § 8, c. 6, Consolidated Laws, New York, as amended byLaws 1923, c. 80.