U.S. Supreme Court

Giordenello v. United States,357U.S. 480 (1958)Giordenello v. UnitedStates

No. 549

Argued May 21, 1958

Decided June 30, 1958

357U.S. 480

CERTIORARI TO THE UNITED STATESCOURT OF APPEALS

FOR THE FIFTHCIRCUIT

Syllabus

With no indictment and on his own complaint, a federal officerobtained a warrant for petitioner's arrest, but obtained no searchwarrant. His complaint was not based on his personal knowledge, didnot indicate the source of his belief that petitioner had committeda crime, and set forth no other sufficient basis for a finding ofprobable cause. With this warrant, he arrested petitioner andseized narcotics in his possession. The arrest and seizure were notchallenged at petitioner's arraignment, but a motion to suppressthe use of the narcotics in evidence was made and denied before histrial. They were admitted in evidence at his trial in a federaldistrict court, and he was convicted.

Held: The arrest and seizure were illegal, thenarcotics should not have been admitted in evidence, andpetitioner's conviction must be set aside. Pp.357 U. S.481-488.

1. By waiving preliminary examination before the Commissioner,petitioner did not surrender his right to contest in court thevalidity of the warrant on the grounds here asserted. Pp.357 U. S.483-484.

2. Under Rules 3 and 4 of the Federal Rules of CriminalProcedure, read in the light of the Fourth Amendment, probablecause was not shown by the complaint, and the warrant for arrestwas issued illegally. Pp.357 U. S.484-487.

3. Having relied entirely in the courts below on the validity ofthe warrant, the Government cannot contend in this Court that thearrest was justified apart from the warrant, because the arrestingofficer had probable cause to believe that petitioner had committeda felony; nor should the case be sent back to the District Courtfor a special hearing on the issue of probable cause. Pp.487-488.

241 F.2d 575 reversed.

Page 357 U. S. 481

MR. JUSTICE HARLAN delivered the opinion of the Court.

Petitioner was convicted of the unlawful purchase of narcotics,see 26 U.S.C. (Supp. V) § 4704, after a trial without ajury before the Federal District Court for the Southern District ofTexas. A divided Court of Appeals affirmed. 241 F.2d 575. Wegranted certiorari to consider petitioner's challenge to thelegality of his arrest and the admissibility in evidence of thenarcotics seized from his person at the time of the arrest. 355U.S. 811.

Agent Finley of the Federal Bureau of Narcotics obtained awarrant for the arrest of petitioner from the United StatesCommissioner in Houston, Texas, on January 26, 1956. This warrant,issued under Rules 3 and 4 of the Federal Rules of CriminalProcedure (seenote 3infra), was based on a written complaint, sworn to byFinley, which read in part:

"The undersigned complainant [Finley] being duly sworn states:That on or about January 26, 1956, at Houston, Texas in theSouthern District of Texas, Veto Giordenello did receive, conceal,etc., narcotic drugs, to-wit: heroin hydrochloride with knowledgeof unlawful importation; in violation of Section 174, Title 21,United States Code."

"And the complainant further states that he believes that _____________ are material witnesses in relation to this charge."

About 6 o'clock in the afternoon of the following day, January27, Finley saw petitioner drive up to his residence in a car andenter the house. He emerged shortly

Page 357 U. S. 482

thereafter and drove away in the same car, closely followed in asecond car by a person described by Finley as a "well-known policecharacter." Finley pursued the cars until they stopped near anotherresidence which was entered by petitioner. When petitioner leftthis residence, carrying a brown paper bag in his hand, andproceeded towards his car, Finley executed the arrest warrant andseized the bag, which proved to contain a mixture of heroin andother substances. Although warned of his privilege to remainsilent, petitioner promptly admitted purchasing the heroin inChicago and transporting it to Houston.

On January 28, petitioner appeared with counsel before a UnitedStates Commissioner. He waived the preliminary examinationcontemplated by Rule 5 of the Rules of Criminal Procedure,see p.357 U. S. 483,infra, and was arraigned on the complaint upon which thearrest warrant had been issued on January 26. [Footnote 1] Prior to trial, petitioner, allegingfor the first time that his arrest and the coincident seizure fromhis person of the paper bag were illegal, moved to suppress for useas evidence the heroin found in the bag. This motion was denied bythe District Court, and petitioner's conviction and its affirmanceby the Court of Appeals followed.

In this Court, petitioner argues, as he did below, that Finley'sseizure of the heroin was unlawful, since the warrant of arrest wasillegal and the seizure could be justified only as incident to alegal arrest, and that, consequently, the admission of the heroininto evidence was

Page 357 U. S. 483

error which requires that his conviction be set aside. TheGovernment contends that petitioner waived his right to challengethe legality of his arrest, and hence to object to theadmissibility of this evidence, by failing to question thesufficiency of the warrant at the time he was brought before theUnited States Commissioner. It further asserts that the arrestwarrant satisfied the Federal Rules of Criminal Procedure, and,alternatively, that the arrest can be sustained apart from thewarrant because Finley had probable cause to believe thatpetitioner had committed a felony. The Government recognizes that,since Finley had no search warrant, the heroin was admissible inevidence only if its seizure was incident to a lawful arrest,see United States v. Rabinowitz,339 U. S.56,339 U. S. 60,and that, if the arrest was illegal, the admission of this evidencewas reversible error.

IWe think it clear that petitioner, by waiving preliminaryexamination before the United States Commissioner, did notsurrender his right subsequently to contest in court the validityof the warrant on the grounds here asserted. A claim of this naturemay involve legal issues of subtlety and complexity which it wouldbe unfair to require a defendant to present so soon after arrest,and in many instances, as here, before his final selection ofcounsel.

In addition, examination of the purpose of the preliminaryexamination before a Commissioner makes evident the unsoundness ofthe Government's position. Rule 5(c) of the Federal Rules ofCriminal Procedure provides in part:

"If, from the evidence, it appears to the commissioner thatthere is probable cause to believe that an offense has beencommitted and that the defendant

Page 357 U. S. 484

has committed, it, the commissioner shall forthwith hold him toanswer in the district court; otherwise the commissioner shalldischarge him."

By waiving preliminary examination, a defendant waives no morethan the right which this examination was intended to secure him --the right not to be held in the absence of a finding by theCommissioner of probable cause that he has committed anoffense.

By the same token, the Commissioner here had no authority toadjudicate the admissibility at petitioner's later trial of theheroin taken from his person. That issue was for the trial court.This is specifically recognized by Rule 41(e) of the CriminalRules, which provides that a defendant aggrieved by an unlawfulsearch and seizure may ". . . move the district court . . . tosuppress for use as evidence anything so obtained on the groundthat . . ." the arrest warrant was defective on any of severalgrounds. This was the procedural path followed by petitioner, andwe hold it proper to put in issue the legality of the warrant.Cf. Albrecht v. United States,273 U. S.1,273 U. S.9-11.

IIPetitioner challenges the sufficiency of the warrant on twogrounds: (1) that the complaint on which the warrant was issued wasinadequate because the complaining officer, Finley, reliedexclusively upon hearsay information, rather than personalknowledge in executing the complaint; and (2) that the complaintwas, in any event, defective in that it, in effect, recited no morethan the elements of the crime charged, namely the concealment ofheroin with knowledge of its illegal importation in violation of 21U.S.C. § 174. [Footnote 2]

Page 357 U. S. 485

It appears from Finley's testimony at the hearing on thesuppression motion that until the warrant was issued on January 26his suspicions of petitioner's guilt derived entirely frominformation given him by law enforcement officers and other personsin Houston, none of whom either appeared before the Commissioner orsubmitted affidavits. But we need not decide whether a warrant maybe issued solely on hearsay information, for in any event we findthis complaint defective in not providing a sufficient basis uponwhich a finding of probable cause could be made.

Criminal Rules 3 and 4 provide that an arrest warrant shall beissued only upon a written and sworn complaint (1) setting forth"the essential facts constituting the offense charged," and (2)showing "that there is probable cause to believe that [such] anoffense has been committed and that the defendant has committed it.. . ." [Footnote 3] Theprovisions of these Rules must be read in light of theconstitutional requirements they implement. The language of theFourth Amendment, that

". . . no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing . . .the persons or things to be seized . . . ,"

of course applies to

Page 357 U. S. 486

arrest as well as search warrants.SeeEx parteBurford, 3 Cranch 448;McGrain v.Daugherty,273 U. S. 135,273 U. S.154-157. The protection afforded by these Rules, whenthey are viewed against their constitutional background, is thatthe inferences from the facts which lead to the complaint

". . . be drawn by a neutral and detached magistrate instead ofbeing judged by the officer engaged in the often competitiveenterprise of ferreting out crime."

Johnson v. United States,333 U. S.10,333 U. S. 14.The purpose of the complaint, then, is to enable the appropriatemagistrate, here a Commissioner, to determine whether the "probablecause" required to support a warrant exists. The Commissioner mustjudge for himself the persuasiveness of the facts relied on by acomplaining officer to show probable cause. He should not acceptwithout question the complainant's mere conclusion that the personwhose arrest is sought has committed a crime.

When the complaint in this case is judged with theseconsiderations in mind, it is clear that it does not pass muster,because it does not provide any basis for the Commissioner'sdetermination under Rule 4 that probable cause existed. Thecomplaint contains no affirmative allegation that the affiant spokewith personal knowledge of the matters contained therein; it doesnot indicate any sources for the complainant's belief; and it doesnot set forth any other sufficient basis upon which a finding ofprobable cause could be made. We think these deficiencies could notbe cured by the Commissioner's reliance upon a presumption that thecomplaint was made on the personal knowledge of the complainingofficer. The insubstantiality of such an argument is illustrated bythe facts of this very case, for Finley's testimony at thesuppression hearing clearly showed that he had no personalknowledge of the matters on which his charge was based. In thesecircumstances, it is difficult to understand how the Commissionercould be expected

Page 357 U. S. 487

to assess independently the probability that petitionercommitted the crime charged. Indeed, if this complaint were upheld,the substantive requirements would be completely read out of Rule4, and the complaint would be of only formal significance, entitledto perfunctory approval by the Commissioner. This would not comportwith the protective purposes which a complaint is designed toachieve.

It does not avail the Government to argue that, because awarrant of arrest may be issued as of course upon an indictment,this complaint was adequate, since its allegations would sufficefor an indictment under Federal Rule of Criminal Procedure 7(c). Awarrant of arrest can be based upon an indictment because the grandjury's determination that probable cause existed for the indictmentalso establishes that element for the purpose of issuing a warrantfor the apprehension of the person so charged. Here, in the absenceof an indictment, the issue of probable cause had to be determinedby the Commissioner, and an adequate basis for such a finding hadto appear on the face of the complaint.

IIIIn the two lower courts, the Government defended the legality ofpetitioner's arrest by relying entirely on the validity of thewarrant. [Footnote 4] In thisCourt, however, its principal contention has been that the arrestwas justified apart from the warrant. The argument is that Texaslaw permits arrest without a warrant upon probable cause that theperson arrested has committed a felony; that, in the absence of acontrolling federal statute, as in the case

Page 357 U. S. 488

here, federal officers turn to the law of the State where anarrest is made as the source of their authority to arrest without awarrant,cf. United States v. Di Re,332 U.S. 581,332 U. S. 589;Johnson v. United States, supra, at333 U. S. 15;and that Finley, on the basis of the facts he testified to beforethe District Court, must be deemed, within the standards of Texaslaw, to have had the probable cause necessary to arrest petitionerwithout a warrant.

We do not think that these belated contentions are open to theGovernment in this Court, and, accordingly, we have no occasion toconsider their soundness. To permit the Government to inject itsnew theory into the case at this stage would unfairly deprivepetitioner of an adequate opportunity to respond. This is sobecause in the District Court petitioner, being entitled to assumethat the warrant constituted the only purported justification forthe arrest, had no reason to cross-examine Finley or to adduceevidence of his own to rebut the contentions that the Governmentmakes here for the first time.

Nor do we think that it would be sound judicial administrationto send the case back to the District Court for a special hearingon the issue of probable cause which would determine whether theverdict of guilty and the judgment already entered should beallowed to stand. The facts on which the Government now relies touphold the arrest were fully known to it at the time of trial, andthere are no special circumstances suggesting such an exceptionalcourse.Cf. United States v. Shotwell Mfg. Co.,355 U. S. 233.This is not to say, however, that, in the event of a new trial, theGovernment may not seek to justify petitioner's arrest withoutrelying on the warrant.

We hold that the seizure in this case was illegal, that theseized narcotics should therefore not have been admitted intoevidence, and that petitioner's conviction accordingly must be setaside. The judgment of the Court of Appeals is

Reversed.

Page 357 U. S. 489

[Footnote 1]

The indictment returned against petitioner did not refer to thecrime charged in the complaint, but was based on two relatedoffenses. One, charging possession of unlawfully importednarcotics, 21 U.S.C. § 174, was dropped by the Government prior totrial. The other, charging unlawful purchase of narcotics, 26U.S.C. (Supp. V) § 4704, resulted in petitioner's conviction.

[Footnote 2]

It appears that in the courts below petitioner relied primarily,if not entirely, on the first of these grounds. That, of course,does not prevent him from relying here also on the second ground,which raises simply a question of law as to the sufficiency of thecomplaint.See United Brotherhood of Carpenters v. UnitedStates,330 U. S. 395,330 U. S. 412;Weems v. United States,217 U. S. 349,217 U. S. 362;Fed.Rules Crim.Proc., Rule 52(b).

[Footnote 3]

Rule 3:

"The complaint is a written statement of the essential factsconstituting the offense charged. It shall be made upon oath beforea commissioner or other officer empowered to commit persons chargedwith offenses against the United States."

Rule 4(a):

". . . If it appears from the complaint that there is probablecause to believe that an offense has been committed and that thedefendant has committed it, a warrant for the arrest of thedefendant shall issue to any officer authorized by law to executeit. . . ."

[Footnote 4]

The Government asked the District Court to take judicial noticethat petitioner was arrested on a "complaint and warrant." Inaddition, Finley's testimony and the "return" of the United StatesMarshal to the warrant leave no room for doubt that in fact thewarrant constituted the basis for petitioner's arrest.

MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON and MR. JUSTICEWHITTAKER concur, dissenting.

I agree that petitioner did not waive his right to attack thecomplaint by his waiver of preliminary examination. But I cannotagree to other conclusions of the Court which, for all practicalpurposes, free another narcotics peddler, this time on the groundthat the complaint did not provide "a sufficient basis upon which afinding of probable cause could be made."

The complaint stated that petitioner,

"on or about January 26, 1956, at Houston, Texas . . . , didreceive, conceal, etc., narcotic drugs, to-wit: heroinhydrochloride with knowledge of unlawful importation,"

citing the statute violated. Petitioner contends that theseallegations did not meet the "essential facts" requirement of Rule3 of the Federal Rules of Criminal Procedure. The Court does notpass on this contention, but instead reverses on Rule 4, reasoningthat the complaint was deficient because it contained

"no affirmative allegation that the affiant spoke with personalknowledge of the matters contained therein; [did] not indicate anysources for the complainant's belief; and [did] not set forth anyother sufficient basis upon which a finding of probable cause couldbe made."

I note that petitioner, in his 39-page brief, does not rely onRule 4, satisfying himself with contentions under Rule 3.

The Court is entirely in error in advancing the Rule 4 ground.The complaint alleged an actual occurrence which under the lawconstituted aprima facie offense -- possession ofnarcotics. Unlawful importation is presumed. 35 Stat. 614, asamended, 21 U.S.C. § 174.See Casey v. United States,276 U. S. 413(1928). Petitioner's contention is that the complaint importedpersonal knowledge when, in fact, it was based in part oninformation. It thus appears strange for the Court to say that"deficiencies" in the complaint "could not be

Page 357 U. S. 490

cured by the Commissioner's reliance upon a presumption . . .[of] personal knowledge." Implicit in petitioner's entire argumentis the fact that no presumption was indulged. The complaint waspositive and absolute in alleging that petitioner on a certain dayand at a specific place "did receive [and] conceal" heroin.Therefore, the Court's first objection,i.e., absence ofan allegation of personal knowledge, is manifestly untenable. As tothe second, concerning "sources for the complainant's belief," thatis something never required in a complaint. In fact, as the Courtwell knows, sources are considered confidential in narcotics cases,and divulgence is seldom required. Such a requirement is a whollyunnecessary and unwarranted extension of Rule 4. Finally, thecatchall objection that the complaint did "not set forth any othersufficient basis" constituting probable cause overlooks the factthat Agent Finley directly and explicitly stated under oath thatpetitioner "did receive [and] conceal" heroin. It therefore followsas the night does the day that "probable cause" existed, and theCommissioner had no recourse other than to issue the warrant.Neither the Court nor petitioner points out what more must bealleged.

The caveat that the Commissioner "should not accept withoutquestion the complainant's mere conclusion" is not applicable here.If the statement that petitioner did "receive" and "conceal"narcotic drugs is a conclusion, it is also a fact. Unlike othercriminal offenses, narcotics violations require no specific intent,and there is no need to spell out facts tending to show suchintent. The distinction the Court draws between conclusions andfacts is untenable because there is no need here for inferences,unlike ordinary criminal cases. If the accused has "possession," hehas committed an offense, absent satisfactory explanation therefor.And certainly one cannot "receive" and "conceal" without having"possession."

Page 357 U. S. 491

Relating the purpose served by a complaint to that of anapplication for a search warrant, as the Court does here, citingJohnson v. United States,333 U. S.10 (1948), is most unfortunate. The obliteration ofvalid distinctions between the two can have little effect onnarcotics cases, because subsequent to the arrest here the Congressauthorized officers to make arrests without a warrant where thereare "reasonable grounds to believe that the person to be arrestedhas committed or is committing" a narcotics offense. 70 Stat. 570,26 U.S.C. (Supp. V) § 7607. But, in other fields of criminal lawenforcement, it increases the great burden already placed onofficers and, like the requirement as to "sources" and "otherevidentiary facts," only beclouds what was clear as to therequisites of a complaint. The considerations underlying arrest arenot apposite to those of search. As we have seen, arrests can bemade in narcotics cases without a warrant where "reasonablegrounds" are present. Prior to this Federal Act, state law wasapplicable, and, in Texas, permitted arrests without a warrant on"probable cause" to believe a narcotics offense had been committed.See Giacona v. State, Tex.Cr.R.,298S.W.2d 587, 588-589;Thomas v. State, 163 Tex.Cr.R.68, 69-70,288S.W.2d 791, 792. Search warrants, on the other hand, arerequired by the Fourth Amendment "notwithstanding factsunquestionably showing probable cause."Agnello v. UnitedStates,269 U. S. 20,269 U. S. 33(1925).* The Court doesnot strike down this complaint directly on the Fourth Amendment,but merely on an extension of Rule 4. It is unfortunate thatthrough this byplay the constitutional limitations surroundingsearch and seizure are extended to the long-recognized powers ofarrest.

Page 357 U. S. 492

Until petitioner came here, he in no way attacked the complainton the ground that it "recited no more than the elements of thecrime charged." The Court admits as much.Seefootnote 2 in the majority opinionNevertheless, in the face of this admission and without either ofthe parties depending on Rule 4, much less briefing and arguing it,the Court strikes down this conviction on that ground. In the samebreath, it tags as "belated" and refuses on that account to pass onthe unanswerable position of the Government, which was fullybriefed and argued, that the arrest may be upheld under state law,United States v. Di Re,332 U. S. 581,332 U. S. 589(1948), as one on probable cause without a warrant.UnitedStates v. Rabinowitz,339 U. S. 56,339 U. S. 60(1950). I cannot subscribe to such a double standard. I ask, how infairness can the Court consider and decide the case on a point notrelied on below by petitioner and at the same time throw out theGovernment's claim as belated? And particularly so since the Courtof Appeals recognized that claim in this language:

"Moreover, there was enough in the record to make it clear thatan honest official might well have thought he was fully observingthe legal restraints placed upon his actions, and that he hadgood cause for arrest even if the warrant already obtained wasinvalid since he believed he saw a felony being committed in hispresence. . . ."

(Emphasis added.) 241 F.2d 575, 579.

But assuming that the claim is belated, it states the law, andour duty is to apply it. Such purblindness may set petitioner free,but it shackles law enforcement. I dissent.

* Searches incident to a valid arrest are, of course,excepted.