U.S. Supreme Court

McDonald v. United States,335U.S. 451 (1948)McDonald v. UnitedStates

No. 36

Argued October 13,1948

Decided December 13,1948

335U.S. 451

CERTIORARI TO THE UNITED STATESCOURT OF APPEALS

FOR THE DISTRICT OF COLUMBIACIRCUIT

Syllabus

Suspecting that petitioner McDonald was operating an illegallottery, police had kept him under surveillance for two months.Thinking that they detected from the outside the sound of an addingmachine, they forced their way, without a warrant for search orarrest, into a rooming house in which he had rented a room. Theyproceeded to his room, looked through the transom, and observedpetitioners McDonald and Washington engaged in operating a lottery.Demanding and obtaining entrance, they arrested both petitionersand seized machines, papers and money which were in plain view.These articles were admitted in evidence over the objection ofpetitioners, who were convicted.

Held:

1. The seizure was in violation of the Fourth Amendment, theseized articles were not admissible in evidence against McDonald,and his conviction cannot be sustained. Pp.335 U. S.452-456.

2. A search without a warrant is not justified unless theexigencies of the situation make that course imperative. Pp.335 U. S.454-456.

3. Even if it be assumed that Washington's constitutional rightswere not invaded, the denial of McDonald's motion to exclude theevidence was, on these facts, prejudicial to Washington as well asto McDonald. P.335 U. S.456

Page 335 U. S. 452

83 U.S.App.D.C. 96,166 F.2d 957, reversed.

Petitioners were convicted in a federal district court onevidence obtained by a search without a warrant. The Court ofAppeals affirmed. 83 U.S.App.D.C. 96, 166 F.2d 957. This Courtgranted certiorari. 333 U.S. 872.Reversed, p.335 U. S.456.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioners were convicted in the District Court on evidenceobtained by a search made without a warrant. The Court of Appealsaffirmed on a divided vote. 166 F.2d 957. We brought the case hereon certiorari because of doubts whether that result squared withJohnson v. United States,333 U. S.10, andTrupiano v. United States,334 U.S. 699.

Petitioners were tried without a jury in the District Court forthe District of Columbia on an indictment in four counts, chargingoffenses of carrying on a lottery known as the numbers game inviolation of 22 D.C.Code, §§ 1501, 1502, 1504 (1940). They werefound guilty on all counts.

Petitioner McDonald, who had previously been arrested fornumbers operations, had been under police observation for severalmonths prior to the arrest. During this period and while he wasmaintaining a home in the District of Columbia, he rented a room inthe residence of a Mrs. Terry, who maintained a rooming house inthe District. His comings and goings at this address were undersurveillance by the police for about two months. They had observedhim enter the rooming house during the hours in which operations atthe headquarters of the numbers game are customarily carriedon.

On the day of the arrest, three police officers surrounded thehouse. This was mid-afternoon. They did not have a warrant forarrest, nor a search warrant. While outside the house, one of theofficers thought that he heard an adding machine. These machinesare frequently used in the numbers operation. Believing that thenumbers game was in process, the officers sought admission to thehouse.

Page 335 U. S. 453

One of them opened a window leading into the landlady's room,and climbed through. He identified himself to her and admitted theother officers to the house.

After searching the rooms on the ground floor, they proceeded tothe second floor. The door of an end bedroom was closed. But one ofthe officers stood on a chair and looked through the transom. Heobserved both petitioners in the room, as well as numbers slips,money piled on the table, and adding machines. He yelled toMcDonald to open the door, and McDonald did so. Both petitionerswere arrested, and the officers seized the machines, a suitcase ofpapers, and money. Whether these machines and papers should havebeen suppressed as evidence and returned to petitioner McDonald isthe major question presented.

The Fourth Amendment to the Constitution provides:

"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 persons or things tobe seized."

This guarantee of protection against unreasonable searches andseizures extends to the innocent and guilty alike. It marks theright of privacy as one of the unique values of our civilizationand, with few exceptions, stays the hands of the police unless theyhave a search warrant issued by a magistrate on probable causesupported by oath or affirmation. And the law provides as asanction against the flouting of this constitutional safeguard thesuppression of evidence secured as a result of the violation, whenit is tendered in a federal court.Weeks v. United States,232 U. S. 383.

The prosecution seeks to build the lawfulness of the search onthe lawfulness of the arrest, and so justify the

Page 335 U. S. 454

search and seizure without a warrant.See Agnello v. UnitedStates,269 U. S. 20,269 U. S. 30;Harris v. United States,331 U. S. 145,331 U. S.150-151. The reasoning runs as follows: although it wasan invasion of privacy for the officers to enter Mrs. Terry's room,that was a trespass which violated her rights under the FourthAmendment, not McDonald's. Therefore, so far as he was concerned,the officers were lawfully within the hallway, as much so as ifMrs. Terry had admitted them. Looking over the transom was not asearch, for the eye cannot commit the trespass condemned by theFourth Amendment. Since the officers observed McDonald in the actof committing an offense, they were under a duty then and there toarrest him.See 4 D.C.Code, §§ 140, 143 (1940). The arrestbeing valid, the search incident thereto was lawful.

We do not stop to examine that syllogism for flaws. Assuming itscorrectness, we reject the result.

This is not a case where the officers, passing by on the street,hear a shot and a cry for help and demand entrance in the name ofthe law. They had been following McDonald and keeping him undersurveillance for two months at this rooming house. The prosecutionnow tells us that the police had no probable cause for obtaining awarrant until, shortly before the arrest, they heard the sound ofthe adding machine coming from the rooming house. And there isvague and general testimony in the record that, on previousoccasions, the officers had sought search warrants, but had beendenied them. But those statements alone do not lay the properfoundation for dispensing with a search warrant.

Where, as here, officers are not responding to an emergency,there must be compelling reasons to justify the absence of a searchwarrant. A search without a warrant demands exceptionalcircumstances, as we held inJohnson v. United States,supra. We will not assume that, where a defendant has beenunder surveillance

Page 335 U. S. 455

for months, no search warrant could have been obtained. Whatshowing these officers made when they applied on the earlieroccasions, the dates of these applications, and all thecircumstances bearing upon the necessity to make this searchwithout a warrant are absent from this record. We cannot allow theconstitutional barrier that protects the privacy of the individualto be hurdled so easily. Moreover, when we move to the scene of thecrime, the reason for the absence of a search warrant is even lessobvious. When the officers heard the adding machine and, at thelatest, when they saw what was transpiring in the room, theycertainly had adequate grounds for seeking a search warrant.

Here, as inJohnson v. United States andTrupianov. United States, the defendant was not fleeing or seeking toescape. Officers were there to apprehend petitioners in case theytried to leave. Nor was the property in the process of destruction,nor as likely to be destroyed as the opium paraphernalia in theJohnson case. Petitioners were busily engaged in theirlottery venture. No reason, except inconvenience of the officersand delay in preparing papers and getting before a magistrate,appears for the failure to seek a search warrant. But those reasonsare no justification for bypassing the constitutional requirement,as we held inJohnson v. United States, supra, p.333 U. S.15.

We are not dealing with formalities. The presence of a searchwarrant serves a high function. Absent some grave emergency, theFourth Amendment has interposed a magistrate between the citizenand the police. This was done not to shield criminals, nor to makethe home a safe haven for illegal activities. It was done so thatan objective mind might weigh the need to invade that privacy inorder to enforce the law. The right of privacy was deemed tooprecious to entrust to the discretion of those whose job is thedetection of crime and the arrest

Page 335 U. S. 456

of criminals. Power is a heady thing, and history shows that thepolice acting on their own cannot be trusted. And so theConstitution requires a magistrate to pass on the desires of thepolice before they violate the privacy of the home. We cannot betrue to that constitutional requirement and excuse the absence of asearch warrant without a showing by those who seek exemption fromthe constitutional mandate that the exigencies of the situationmade that course imperative.

It follows from what we have said that McDonald's motion forsuppression of the evidence and the return of the property to himshould have been granted.Weeks v. United States, supra;Go-Bart Importing Co. v. United States,282 U.S. 344,282 U. S. 358.It was, however, denied, and the unlawfully seized evidence wasused not only against McDonald, but against Washington as well, thetwo being tried jointly. Apart from this evidence, there seems tohave been little or none against Washington. Even though we assume,without deciding, that Washington, who was a guest of McDonald, hadno right of privacy that was broken when the officers searchedMcDonald's room without a warrant, we think that the denial ofMcDonald's motion was error that was prejudicial to Washington aswell. In this case, unlikeAgnello v. United States,supra, p.269 U. S. 35,the unlawfully seized materials were the basis of evidence usedagainst the codefendant. If the property had been returned toMcDonald, it would not have been available for use at the trial. Wecan only speculate as to whether other evidence which might havebeen used against Washington would have been equally probative.

Reversed.

MR. JUSTICE BLACK concurs in the result.

MR. JUSTICE RUTLEDGE concurs in the result, and in the opinioninsofar as it relates to the petitioner McDonald.

Page 335 U. S. 457

With respect to the petitioner Washington, he is of the viewthat the evidence, having been illegally obtained, wasinadmissible.Cf. Malinski v. New York,324 U.S. 401, opinion dissenting in part page324 U. S.420.

MR. JUSTICE JACKSON, concurring.

I agree with the result and with the opinion of the Court. Butit rejects the search which two courts below have sustained withoutsaying wherein it was wrong. It may be helpful to lower courts andto the police themselves to state what appears to some of us as thereason this search is bad.

The police for several weeks had this defendant, McDonald, undersurveillance. The United States Commissioner was approached about asearch warrant but, for reasons which do not appear, declined toissue it. The only additional information which led the officers totake the law into their own hands and make this search without awarrant was that they heard an adding machine or a typewriter --the witness was not sure which -- operating on the premises.Certainly the sound of an adding machine or typewriter, standingalone, is no indication of crime, and it could become significantonly when weighed in connection with other evidence. A magistratemight either have issued or refused a warrant if request had beenmade.

However, the officer in charge of the investigation took thematter into his own hands. He neither had nor sought a searchwarrant or warrant of arrest; he did not then have knowledge of acrime sufficient, even in his own opinion, to justify arrest, andhe did not even know that the suspect, McDonald, was in the roominghouse at the time. Nevertheless, he forced open the window of thelandlady's bedroom and climbed in. He apparently was in plainclothes, but showed his badge to the frightened woman, brushed heraside and then

Page 335 U. S. 458

unlocked doors and admitted two other officers. They then wentto the hall outside the room rented and occupied by defendant. Theofficer in charge climbed on a chair and looked through a transom.Seeing the defendant McDonald engaged in activity which heconsidered to be part of the lottery procedure, he arrested him andsearched the quarters. The Government argued, and the court belowheld, that, since the forced entry into the building was throughthe landlady's window, in a room in which the defendant as a tenanthas no rights, no objection to this mode of entry or to the searchthat followed was available to him.

Doubtless a tenant's quarters in a rooming or apartment houseare legally, as well as practically, exposed to lawful approach bya good many persons without his consent or control. Had the policebeen admitted as guests of another tenant, or had the approachesbeen thrown open by an obliging landlady or doorman, they wouldhave been legally in the hallways. Like any other stranger, theycould then spy or eavesdrop on others without being trespassers. Ifthey peeped through the keyhole or climbed on a chair or on oneanother's shoulders to look through the transom, I should see nogrounds on which the defendant could complain. If, in this manner,they, or any private citizen, saw a crime in the course ofcommission, an arrest would be permissible.

But it seems to me that each tenant of a building, while he hasno right to exclude from the common hallways those who enterlawfully, does have a personal and constitutionally protectedinterest in the integrity and security of the entire buildingagainst unlawful breaking and entry. Here the police gained accessto their peeking post by means that were not merely unauthorized,but by means that were forbidden by law and denounced as criminal.In prying up the porch window and climbing

Page 335 U. S. 459

into the landlady's bedroom, they were guilty of breaking andentering -- a felony in law and a crime far more serious than theone they were engaged in suppressing. Having forced an entrywithout either a search warrant or an arrest warrant to justify it,the felonious character of their entry, it seems to me, followedevery step of their journey inside the house, and tainted itsfruits with illegality.Cf. Weeks v. United States,232 U. S. 383;Taylor v. United States,286 U. S. 1;Johnson v. United States,333 U. S.10.

Even if one were to conclude that urgent circumstances mightjustify a forced entry without a warrant, no such emergency waspresent in this case. This method of law enforcement displays ashocking lack of all sense of proportion. Whether there isreasonable necessity for a search without waiting to obtain awarrant certainly depends somewhat upon the gravity of the offensethought to be in progress, as well as the hazards of the method ofattempting to reach it. In this case, the police had been over twomonths watching the defendant McDonald. His criminal operation,while a shabby swindle that the police are quite right insuppressing, was not one which endangered life or limb or the peaceand good order of the community even if it continued another day ortwo; neither was the racket one the defendant was likely toabandon. Conduct of the numbers racket is not a solitary vice,practiced in secrecy and discoverable only by crashing intodwelling houses. The real difficulty is that it is so littlecondemned by otherwise law-abiding people that it flourishes widelyand involves multitudes of people. It is to me a shockingproposition that private homes, even quarters in a tenement, may beindiscriminately invaded at the discretion of any suspicious policeofficer engaged in following up offenses that involve no violenceor threats of it. While I should be human enough to

Page 335 U. S. 460

apply the letter of the law with some indulgence to officersacting to deal with threats or crimes of violence which endangerlife or security, it is notable that few of the searches found bythis Court to be unlawful dealt with that category or crime. Almostwithout exception, the overzeal was in suppressing acts notmalum in se, but onlymalum prohibitum.* While theenterprise of parting fools from their money by the "numbers"lottery is one that ought to be suppressed, I do not think itssuppression is more important to society than the security of thepeople against unreasonable searches and seizures. When an officerundertakes to act as his own magistrate, he ought to be in aposition to justify it by pointing to some real immediate andserious consequences if he postponed action to get a warrant.

I am the less reluctant to reach this conclusion because themethod of enforcing the law exemplified by this search is one whichnot only violates legal rights of defendant, but is certain toinvolve the police in grave troubles if continued. That it did notdo so on this occasion was due to luck more, than to foresight.Many homeowners in this crime-beset city doubtless are armed. Whena woman sees a strange man, in plain clothes, prying up her

Page 335 U. S. 461

bedroom window and climbing in, her natural impulse would be toshoot. A plea of justifiable homicide might result awkwardly forenforcement officers. But an officer seeing a gun being drawn onhim might shoot first. Under the circumstances of this case, Ishould not want the task of convincing a jury that it was notmurder. I have no reluctance in condemning as unconstitutional amethod of law enforcement so reckless and so fraught with dangerand discredit to the law enforcement agencies themselves.

As to defendant Washington: he was a guest on the premises. Hecould have no immunity from spying and listening by thoserightfully in the house. But even a guest may expect the shelter ofthe rooftree he is under against criminal intrusion. I shouldreverse as to both defendants.

MR. JUSTICE FRANKFURTER, having joined in the Court's opinion,also concurs in this opinion.

* For example, the instant case involves a statute forbiddinglotteries in the District of Columbia;Trupiano v. UnitedStates,334 U. S. 699,liquor control and revenue statutes;Johnson v. UnitedStates,333 U. S. 10,narcotic control and revenue statutes;Nathanson v. UnitedStates,290 U. S. 41,liquor control and tariff statute. Other cases involving liquorcontrol or taxing statutes, or both, are numerous;see, e.g.,Taylor v. United States,286 U. S. 1;United States v. Lefkowitz, 285 U.S 452;Go-BartImporting Co. v. United States,282 U.S. 344;Gambino v. United States,275 U.S. 310;Amos v. United States,255 U.S. 313.Agnello v. United States,269 U. S.20, involved cocaine control and taxing statutes, andWeeks v. United States,232 U. S. 383,involved a statute forbidding use of the mails to distributelottery tickets.

MR. JUSTICE BURTON, with whom THE CHIEF JUSTICE and MR. JUSTICEREED join, dissenting.

In our opinion, the judgment should have been affirmed. This isa case of a lawful arrest followed by a seizure of the instrumentsof the crime which then were in plain sight. There was no search.There is, therefore, no issue as to the need for a search warrant.In regard to the arrest, the only issue is as to the need for awarrant of arrest to make it lawful. For the reasons stated below,we believe the arrest for the crime committed in the presence ofthe officers was clearly lawful without the issuance of a formalwarrant for it. At the time of the raid, there were sufficientgrounds to justify the police in suspecting that the unlawfullottery, which later proved to be in operation, was in progresswithin the building which had

Page 335 U. S. 462

been under surveillance. A "numbers game," such as was thereconducted, is a form of lottery generally regarded as detrimentalto the communities where it flourishes. It is highly profitable toits principals at the expense of its players. Yet it is so simplein operation that its headquarters are readily movable.Accordingly, it requires substantial police effort to stop suchunlawful operations at their source. It is difficult to locate theprincipals, and it is still more difficult to secure proofsufficient to convict them unless they are arrested in the midst ofone of the comparatively brief periodical sessions when theessential computations for the operation of the lottery are beingmade. Such sessions are held when the operators determine the day'swinners and arrange for the distribution among those winners oftheir respective shares of the cash which has been collectedthrough a network of writers, collectors and runners.

Under the circumstances, a prompt entry by the police wasjustified when they reasonably suspected that the crime ofoperating a numbers lottery was being committed at that moment. Thepetitioners, as tenants or occupants of a room, had no right toobject to the presence of officers in the hall of the roominghouse. The actual observance by the police of the commission of thesuspected crime thereupon justified their immediate arrest of thoseengaged in it without securing a warrant for such arrest.

This case is primarily an instance where the police succeeded insurprising the petitioners in the midst of the unlawful operationswhich the police suspected were being carried on periodically byMcDonald as a principal operator and by others at the place inquestion. It is generally not a violation of any constitutionalprivilege of the accused for a police officer to arrest suchaccused without a warrant of arrest if the arrest is made atthe

Page 335 U. S. 463

very moment when the accused is engaged in a violation of law inthe presence of the officer. It is generally not a violation of anyconstitutional privilege of such accused for the arresting officerthereupon to seize at least the articles then in plain sight andwhich have been seen by the officer to have been used in thecommission of the crime for which the accused is being arrested. Wesee no adequate reason for a distinction in favor of the accusedhere. In this case, there was no search for the seized property,because its presence was obvious. Also, there was no seizure ofanything other than the articles which the arresting officer saw inuse in some material connection with the crime which the accusedcommitted in the officer's presence. It therefore was not aviolation of the constitutional rights of the accused to permitsuch seized articles to be presented in evidence in securing theirconvictions of the crimes which they were charged with committingin the presence of the arresting officer.