U.S. Supreme Court

Marron v. United States,275U.S. 192 (1927)Marron v. UnitedStates

No. 185

Argued October 12,1927

Decided November 21,1927

275U.S. 192

CERTIORARI TO THE CIRCUIT COURT OFAPPEALS

FOR THE NINTHCIRCUIT

Syllabus

1. The requirement of the Fourth Amendment that warrants shallparticularly describe the things to be seized makes generalsearches under them impossible, and prevents the seizure of onething under a warrant describing another. As to what is to betaken, nothing is left to the discretion of the officer executingthe warrant. P.275 U. S.195.

2. Under the Fourth Amendment and Title 18, U.S. Code, a searchwarrant describing intoxicating liquors and articles for theirmanufacture does not authorize the seizure of a ledger and bills ofaccount found in a search of the premises specified in the warrant.P.275 U. S.196.

3. Officers, in making a lawful search of premises whereintoxicating liquors are being unlawfully sold, may lawfullyarrest, without a warrant, a person there actually in charge of thepremises and actually engaged, in the presence of the officers, ina conspiracy to maintain them, and may contemporaneously, as anincident to the arrest, seize account books and papers notdescribed in the search warrant, but which are used in carrying onthe criminal enterprise and are found on the premises and in theimmediate possession and control of the person arrested. P.275 U. S.198.

18 F.2d 218 affirmed.

Certiorari, 274 U.S. 727, to a judgment of the Circuit Court ofAppeals affirming the conviction of Marron on a second trial forconspiracy to maintain a nuisance in violation of the ProhibitionAct.See also 8 F.2d 251.

Page 275 U. S. 193

MR. JUSTICE BUTLER delivered the opinion of the Court.

October 17, 1924, the above-named petitioner, one Birdsall, andfive others were indicted in the Southern division of the Northerndistrict of California. It was charged that they conspired tocommit various offenses against the National Prohibition Act,including the maintenance of a nuisance at 1249 Polk street, SanFrancisco. Section 37, Criminal Code (U.S.C. Tit. 18, § 88 ). Onedefendant was never apprehended; one was acquitted; the rest werefound guilty. Of these, Marron, Birdsall, and two others obtainedreview in the Circuit Court of Appeals. The judgment was affirmedas to all except petitioner. He secured reversal and a new trial. 8F.2d 251. He was again found guilty, and the conviction wasaffirmed, 18 F.2d 218.

Petitioner insists that a ledger and certain bills were obtainedthrough an illegal search and seizure and put in evidence againsthim, in violation of the Fourth and Fifth Amendments. The questionarose at the first trial. The Circuit Court of Appeals held thatthe book and papers were lawfully seized, and admissible. When thesecond conviction was before it, that court held the earlierdecision governed the trial, established the law of the case, andforeclosed further consideration.

For some time prior to October 1, 1924, petitioner was thelessee of the entire second floor of 1249 Polk street. On that day,a prohibition agent obtained from a United States commissioner awarrant for the search of that place, particularly describing thethings to be seized -- intoxicating liquors and articles for theirmanufacture. The next day, four prohibition agents went to theplace and secured admission by causing the doorbell to be rung.There were six or seven rooms, containing slot machines,

Page 275 U. S. 194

an ice box, tables, chairs, and a cash register. The evidenceshows that the place was used for retailing and drinkingintoxicating liquors. About a dozen men and women were there, andsome of them were being furnished intoxicating liquors. Thepetitioner was not there; Birdsall was in charge. The agents handedhim the warrant and put him under arrest. They searched for andfound large quantities of liquor, some of which were in a closet.While in the closet, they noticed a ledger showing inventories ofliquors, receipts, expenses, including gifts to police officers,and other things relating to the business. And they found, besidethe cash register, a number of bills against petitioner for gas,electric light, water, and telephone service furnished on thepremises. They seized the ledger and bills. The return made on thesearch warrant showed only the seizure of the intoxicating liquors.It did not show the discovery or seizure of the ledger or bills.After indictment and before trial, petitioner applied to the courtfor the return of the ledger and bills and to suppress evidenceconcerning them. The application was denied. At the trial, therewas evidence to show that petitioner made most of the entries inthe ledger, and that he was concerned as proprietor or partner incarrying on the business of selling intoxicating liquors.

It has long been settled that the Fifth Amendment protects everyperson against incrimination by the use of evidence obtainedthrough search or seizure made in violation of his rights under theFourth Amendment.Agnello v. United States,269 U. S.20,269 U. S. 34,and cases cited.

The petitioner insists that, because the ledger and bills werenot described in the warrant and as he was not arrested with themon his person, their seizure violated the Fourth Amendment. TheUnited States contends that the seizure may be justified either asan incident to the execution of the search warrant or as anincident to the

Page 275 U. S. 195

right of search arising from the arrest of Birdsall while incharge of the saloon. Both questions are presented. Lower courtshave expressed divers views in respect of searches in similarcases. The brief for the government states that the facts of thiscase present one of the most frequent causes of appeals in currentcases. And for these reasons, we deal with both contentions.

1. The Fourth Amendment declares that the right to be secureagainst unreasonable searches shall not be violated, and it furtherdeclares that:

"no warrants shall issue, but upon probable cause, supported byoath or affirmation, and particularly describing the place to besearched and the persons or things to be seized."

General searches have long been deemed to violate fundamentalrights. It is plain that the amendment forbids them. InBoyd v.United States,116 U. S. 616, ,Mr. Justice Bradley, writing for the Court, said (p.116 U. S.624):

"In order to ascertain the nature of the proceedings intended bythe Fourth Amendment to the Constitution under the terms'unreasonable searches and seizures,' it is only necessary torecall the contemporary or then recent history of the controversieson the subject, both in this country and in England. The practicehad obtained in the colonies of issuing writs of assistance to therevenue officers, empowering them, in this discretion, to searchsuspected places for smuggled goods, which James Otis pronounced'the worst instrument of arbitrary power, the most destructive ofEnglish liberty, and the fundamental principles of law, that everwas found in an English law book,' since they placed 'the libertyof every man in the hands of every petty officer.'"

And inWeeks v. United States,232 U.S. 383, Mr. Justice Day, writing for the Court, said (p.232 U. S.391):

"The effect of the Fourth Amendment is to put the courts of theUnited States and federal officials, in the

Page 275 U. S. 196

exercise of their power and authority, under limitations andrestraints as to the exercise of such power and authority, and toforever secure the people, their persons, houses, papers, andeffects, against all unreasonable searches and seizures under theguise of law. This protection reaches all alike, whether accused ofcrime or not, and the duty of giving to it force and effect isobligatory upon all entrusted under our federal system with theenforcement of the laws. The tendency of those who execute thecriminal laws of the country to obtain conviction by means ofunlawful seizures and enforced confessions . . . should find nosanction in the judgments of the courts, which are charged at alltimes with the support of the Constitution, and to which people ofall conditions have a right to appeal for the maintenance of suchfundamental rights."

The requirement that warrants shall particularly describe thethings to be seized makes general searches under them impossibleand prevents the seizure of one thing under a warrant describinganother. As to what is to be taken, nothing is left to thediscretion of the officer executing the warrant.

And the Congress, in enacting the laws governing the issue andexecution of this search warrant, was diligent to limit seizures tothings particularly described. Section 39 of Title 27, U.S.C.provides that such warrant may issue as provided in title 18, §§611 to 631 and § 633.* Section 613provides that a search warrant cannot be issued but upon probablecause supported by affidavit naming or describing the person andparticularly describing property and place to be searched.Section

Page 275 U. S. 197

622 requires the officer executing the warrant to give to theperson in whose possession the property taken was found a receiptspecifying it in detail. Section 623 requires him forthwith toreturn the warrant to the judge or commissioner with a verifiedinventory and detailed account of the property taken. Section 624gives the person from whom the property is taken a right to have acopy of the inventory. Section 626 provides that, if it appearsthat the property or paper taken is not the same as that describedin the warrant, the judge or commissioner must cause it to bereturned to the person from whom it was taken. And section 631provides for punishment of an officer who willfully exceeds hisauthority in executing a search warrant.

The Government relies onAdams v. New York,192 U. S. 585.That was a prosecution in a state court. It involved no search orseizure under a law, or by an officer, of the United States. Adamswas convicted of having gambling paraphernalia in violation of thePenal Code of New York. It appeared that he occupied an officewhere were his desk, trunk, tin boxes and other articles. Officerscame and stated that they had a search warrant. He said it was nothis office. They arrested him, searched the place, found "policyslips," etc., and also papers relating to his private affairs. Thepolicy papers were introduced in evidence. There were endorsementsin his handwriting on some of them. Over his objection, the privatepapers were received to furnish specimens of his writing and toshow that he occupied the office. He had taken no steps to securethe return of his private papers or to prevent their use asevidence. But, at the trial, he contended their seizure violatedhis right to be secure against unreasonable searches, and thattheir use as evidence compelled him to be a witness against himselfin violation of the Fourth and Fifth Amendments and in violation ofsimilar provisions of

Page 275 U. S. 198

the state constitution. The Court of Appeals (176 N.Y. 351) heldthat the provisions of the federal Constitution did not apply; thatthe use of the private papers as evidence did not violate the stateconstitution; declared that it expressed no opinion as to theseizure, and applied the rule that a court, when engaged in tryinga criminal case, will not take notice of the manner in which thewitnesses obtained papers offered in evidence. And this court,assuming, without deciding, that the Fourth and Fifth Amendmentswere applicable, held the use of the private papers as evidence didnot violate any right safeguarded by these amendments, and, afterreference to the procedure at the trial, declared that "courts donot stop to inquire as to the means by which the evidence wasobtained." The court did not decide whether the seizure violatedthe Fourth Amendment. It decided that the admission in evidence ofthe private papers did not infringe the Fourth or Fifth Amendments.The case does not support the Government's contention.And seeWeeks v. United States, supra,232 U. S.394-396;Silverthorne Lumber Co. v. UnitedStates,251 U. S. 385,251 U. S. 392;Agnello v. United States, supra,269 U. S. 34.And it is clear that the seizure of the ledger and bills in thecase now under consideration was not authorized by the warrant.Cf. Kirvin v. United States, 5 F.2d 282, 285;UnitedStates v. Kirschenblatt, 16 F.2d 202;Steele v. UnitedStates,267 U. S. 498.

2. When arrested, Birdsall was actually engaged in a conspiracyto maintain, and was actually in charge of, the premises whereintoxicating liquors were being unlawfully sold. Every such placeis by the National Prohibition Act declared to be a common nuisancethe maintenance of which is punishable by fine, imprisonment orboth. Section 21, Tit. II, Act of October 28, 1919, 41 Stat. 305,314 (U.S.C. Tit. 27, § 33). The officers were authorized to arrestfor crime being committed in their presence, and

Page 275 U. S. 199

they lawfully arrested Birdsall. They had a right without awarrant contemporaneously to search the place in order to find andseize the things used to carry on the criminal enterprise.Agnello v. United States, supra,269 U. S. 30;Carroll v. United States,267 U.S. 132,267 U. S. 158;Weeks v. United States, supra,232 U. S. 392.The closet in which liquor and the ledger were found was used as apart of the saloon. And, if the ledger was not as essential to themaintenance of the establishment as were bottles, liquors andglasses, it was nonetheless a part of the outfit or equipmentactually used to commit the offense. And, while it was not onBirdsall's person at the time of his arrest, it was in hisimmediate possession and control. The authority of officers tosearch and seize the things by which the nuisance was beingmaintained extended to all parts of the premises used for theunlawful purpose.Cf. Sayers v. United States, 2 F.2d 146;Kirvin v. United States, supra; United States v. Kirschenblatt,supra. The bills for gas, electric light, water, and telephoneservices disclosed items of expense; they were convenient, if notin fact necessary, for the keeping of the accounts; and, as theywere so closely related to the business, it is not unreasonable toconsider them as used to carry it on. It follows that the ledgerand bills were lawfully seized as an incident of the arrest.

Judgment affirmed.

1 Section 25, title 2, Act of October 28, 1919, 41 Stat. 305,315, is section 39, Title 27, U.S.C. It provides that a searchwarrant may issue as provided in Title XI of the Espionage Act(June 15, 1917), 40 Stat. 217, 228. Title XI is sections 611 to 631and § 633, Title 18, U.S.C.