Chimel v. California/Dissent White
Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting.
Few areas of the law have been as subject to shifting constitutional standards over the last 50 years as that of the search 'incident to an arrest.' There has been a remarkable instability in this whole area, which has seen at least four major shifts in emphasis. Today's opinion makes an untimely fifth. In my view, the Court should not now abandon the old rule.
* The modern odyssey of doctrine in this field is detailed in the majority opinion. It began with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), where the Court paused to note that the case before it was not. 'It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. * * * Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the control of the accused.' Id., at 392, 34 S.Ct., at 344 (Emphasis added.) This scope of search incident to arrest, extending to all items under the suspect's 'control,' was reaffirmed in a dictum in Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925). Accord, Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925) (holding that 'the place where the arrest is made' may be searched 'is not to be doubted'). The rule was reaffirmed in Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 77, 72 L.Ed. 231 (1927), where the Court asserted that authority to search incident to an arrest 'extended to all parts of the premises used for the unlawful purpose.'
Within five years, this rule was qualified by two Prohibition Act cases, Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-358, 51 S.Ct. 153, 157-158, 75 L.Ed. 374 (1931), and United States v. Lefkowitz, 285 U.S. 452, 463-467, 52 S.Ct. 420, 422-424, 76 L.Ed. 877 (1932).
If Go-Bart and Lefkowitz represented a retreat from the rule of Weeks, Carroll, Agnello, and Marron, the vigor of the earlier rule was reaffirmed in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), which has, but for one brief interlude, clearly been the law until today. The very next Term after Harries, in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), the Court held unjustifiable the seizure of a still incident to the arrest of a man at the still site, even though the still was contraband, had been visible through an open door before entering the premises to be 'searched,' and although a crime was being committed in the officers' presence. Accord, that year, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (gambling game seen through transom before entry). Less than two years later, however, the Court returned to the Harris rule in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), where the Court held that the reasonableness of a search does not depend upon the practicability of obtaining a search warrant, and that the fact of a valid arrest is relevant to reasonableness. Trupiano was pro tanto overruled.
Such rapid reversals have occurred before,  but they are rare. Here there had been two about-faces, one following hard upon the other. Justice Frankfurter objected in this language: 'Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance-for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors.' 339 U.S., at 86, 73 S.Ct., at 444. Since that time,t he rule of Weeks, Marron, Harris, and Rabinowitz has clearly been the law. E.g., Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (Frankfurter, J., writing for the Court); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). 
The rule which has prevailed, but for very brief or doubtful periods of aberration, is that a search incident to an arrest may extend to those areas under the control of the defendant and where items subject to constitutional seizure may be found. The justification for this rule must, under the language of the Fourth Amendment, lie in the reasonableness of the rule. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Klkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). The Amendment 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 upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
In terms, then, the Court must decide whether a given search is reasonable. The Amendment does not proscribe 'warrantless searches' but instead it proscribes 'unreasonable searches' and this Court has never held nor does the majority today assert that warrantless searches are necessarily unreasonable.
Applying this reasonableness test to the area of searches incident to arrests, one thing is clear at the outset. Search of an arrested man and of the items within his immediate reach must in almost every case be reasonable. There is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers, and there is a danger that he may destroy evidence vital to the prosecution. Circumstances in which these justifications would not apply are sufficiently rare that inquiry is not made into searches of this scope, which have been considered reasonable throughout.
The justifications which make such a search reasonable obviously do not apply to the search of areas to which the accused does not have ready physical access. This is not enough, however, to prove such searches unconstitutional. The Court has always held, and does not today deny, that when there is probable cause to search and it is 'impracticable' for one reason or another to get a search warrant, then a warrantless search may be reasonable. E.g., even Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). This is the case whether an arrest was made at the time of the search or not. 
This is not to say that a search can be reasonable without regard to the probable cause to believe that seizable items are on the premises. But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably. An arrest itself may often create an emergency situation making it impracticable to obtain a warrant before embarking on a related search. Again assuming that there is probable cause to search premises at the spot where a suspect is arrested, it seems to me unreasonable to require the police to leave the scene in order to obtain a search warrant when they are already legally there to make a valid arrest, and when there must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search. This must so often be the case that it seems to me as unreasonable to require a warrant for a search of the premises as to require a warrant for search of the person and his very immediate surroundings.
This case provides a good illustration of my point that it is unreasonable to require police to leave the scene of an arrest in order to obtain a search warrant when they already have probable cause to search and there is a clear danger that the items for which they may reasonably search will be removed before they return with a warrant. Petitioner was arrested in his home after an arrest whose validity will be explored below, but which I will now assume was valid. There was doubtless probable cause not only to arrest petitioner, but also to search his house. He had obliquely admitted, both to a neighbor and to the owner of the burglarized store, that he had committed the burglary.  In light of this, and the fact that the neighbor had seen other admittedly stolen property in petitioner's house, there was surely probable cause on which a warrant could have issued to search the house for the stolen coins. Moreover, had the police simply arrested petitioner, taken him off to the station house, and later returned with a warrant,  it seems very likely that petitioner's wife, who in view of petitioner's generally garrulous nature must have known of the robbery, would have removed the coins. For the police to search the house while the evidence they had probable cause to search out and seize was still there cannot be considered unreasonable. 
This line of analysis, supported by the precedents of this Court, hinges on two assumptions. One is that the arrest of petitioner without a valid warrant  was constitutional as the majority assumes; the other is that the police were not required to obtain a search warrant in advance, even though they knew that the effect of the arrest might well be to alert petitioner's wife that the coins had better be removed soon. Thus it is necessary to examine the constitutionality of the arrest since if it was illegal, the exigent circumstances which it created may not, as the consequences of a lawless act, be used to justify the contemporaneous warrantless search. But for the arrest, the warrantless search may not be justified.  And if circumstances can justify the warrantless arrest, it would be strange to say that the Fourth Amendment bars the warrantless search, regardless of the circumstances, since the invasion and disruption of a man's life and privacy which stem from his arrest are ordinarily far greater than the relatively minor intrusions attending a search of his premises.
Congress has expressly authorized a wide range of officials to make arrests without any warrant in criminal cases. United States Marshals have long had this power,  which is also vested in the agents of the Federal Bureau of Investigation,  and in the Secret Service  and the narcotics law enforcement agency.  That warrantless arrest power may apply even when there is time to get a warrant without fear that the suspect may escape is made perfectly clear by the legislative history of he statute granting arrest power to the FBI.
In United States v. Coplon, 185 F.2d 629, 633-636, 28 A.L.R.2d 1041 (C.A.2d Cir. 1950), the court held that an arrest and search were invalid because there was an insufficient showing of danger of escape, and therefore there was time to obtain a warrant. The opinion, written by Judge Learned Hand and joined by Judges Swan and Frank, reviewed the common-law power of arrest, which permitted arrests for felonies committed in the past 'if (the officer) had reasonable ground to suppose that the person arrested had committed the felony.' However, the court concluded that this power of warrantless arrest had been limited by the congressional requirement that there must be a 'likelihood of the person escaping before a warrant can be obtained for his arrest.'
The next month the Congress was moved by this very decision to amend the law, consciously deleting the language upon which Judge Hand had relied so as to make it clear that warrantless arrests were authorized even if there was time to procure a warrant. Act of January 10, 1951, c. 1221, § 1, 64 Stat. 1239; H.. Rep. No. 3228, 81st Cong., 2d Sess. (1950).  Thereupon, the Court of Appeals for the District of Columbia Circuit, passing on the very same arrest which had induced the congressional action, held that this 'unmistakable' revision made it clear that there was in the FBI a power to arrest without warrant even when there was time to procure one. For this reason, the court upheld the arrest and contemporaneous search. Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (1951). Certiorari was denied in both Coplon cases. 342 U.S. 920, 926, 72 S.Ct. 362, 363, 96 L.Ed. 688, 690 (1952). Moreover, the statute under which the FBI exercises that power was later said by this Court to state the constitutional standard, Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), since it requires 'reasonable grounds to believe that the person to be arrested has committed or is committing' a felony, 18 U.S.C. § 3052, before a warrantless arrest may be made. And the Court today has declined to review a warrantless arrest under th narcotics agent statute. Jamison v. United States, 395 U.S. 986, 89 S.Ct. 2135, 23 L.Ed.2d 774. See also my dissent in Shipley v. California, 395 U.S. 818, at 821, 89 S.Ct. 2053, at 2055, 23 L.Ed.2d 732.
The judgment of Congress is that federal law enforcement officers may reasonably make warrantless arrests upon probable cause, and no judicial experience suggests that this judgment is infirm. Indeed, past cases suggest precisely the contrary conclusion. The validity of federal arrests was long governed by state law, United States v. Di Re, 332 U.S. 581, 589-592, 68 S.Ct. 222, 226-227, 92 L.Ed. 210 (1948), and no requirement that warrants be sought whenever there is time to do so was imposed either by common-law history  or by decisions of this Court. This Court has upheld an executive arrest warrant for deportation, permitting the arrest to occur without prior judicial scrutiny, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). And this Court has regularly affirmed the validity of warrantless arrests without any indication whatever that there was no time to get a warrant, and indeed where all the circumstances pointed to the opposite conclusion. E.g., Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The lower federal courts have certainly been of the view that warrants are unnecessary even where there is time to obtain them. Dailey v. United States, 261 F.2d 870 (C.A.5th Cir. 1958), cert. denied, 359 U.S. 969, 79 S.Ct. 881, 3 L.Ed.2d 836 (1959) (statutory warrantless arrest by federal narcotics agents); Smith v. United States, 103 U.S.App.D.C. 48, 52, 254 F.2d 751, 755, cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958); Mills v. United States, 90 U.S.App.D.C. 365, 196 F.2d 600, cert. denied 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952) (sub silentio).
In light of the uniformity of judgment of the Congress, past judicial decisions, and common practice rejecting the preoposition that arrest warrants are essential wherever it is practicable to get them, the conclusion is inevitable that such arrests and accompanying searches are reasonable, at least until experience teaches the contrary. It must very often be the case that by the time probable cause to arrest a man is accm ulated, the man is aware of police interest in him or for other good reasons is on the verge of flight. Moreover, it will likely be very difficult to determine the probability of his flight. Given this situation, it may be best in all cases simply to allow the arrest if there is probable cause, especially since that issue can be determined very shortly after the arrest.
Nor are the stated assumptions at all fanciful. It was precisely these facts which moved the Congress to grant to the FBI the power to arrest without a warrant without any showing of probability of flight. Both the Senate and House committees quoted the letter of the Acting Deputy Attorney General, Peter Campbell Brown, who in asking for the new legislation asserted: 'Although it is recognized that in any felony case the person to be arrested may attempt to flee, it is also recognized that in any such case in which the defendant is arrested without a warrant in an emergency situation, such defendant may be able to present a rather convincing argument that he did not intend to flee.' S.Rep. No. 2464, 81st Cong., 2d Sess., 2 (1950); H.R.Rep. No. 3228, 81st Cong., 2d Sess., 2 (1950). Some weight should be accorded this factual judgment by law enforcement officials, adopted by the Congress.
If circumstances so often require the warrantless arrest that the law generally permits it, the typical situation will find the arresting officers lawfully on the premises without arrest or search warrant. Like the majority, I would permit the police to search the person of a suspect and the area under his immediate control either to assure the safety of the officers or to prevent the destruction of evidence. And like the majority, I see nothing in the arrest alone furnishing probable cause for a search of any broader scope. However, where as here the existence of probable cause is independently established and would justify a warrant for a broader search for evidence, I would follow past cases and permit such a search to be carried out without a warrant, since the fact of arrest supplies an exigent circumstance justifying police action before the evidence can be removed, and also alerts the suspect to the fact of the search so that he can immediately seek judicial determination of probable cause in an adversary proceeding, and appropriate redress.
This view, consistent with past cases, would not authorize the general search against which the Fourth Amendment was meant to guard, nor would it broaden or render uncertain in any way whatsoever the scope of searches permitted under the Fourth Amendment. The issue in this case is not the breadth of the search, since there was clearly probable cause for the search which was carried out. No broader search than if the officers had a warrant would be permitted. The only issue is whether a search warrant was required as a precondition to that search. It is agreed that such a warrant would be required absent exigent circumstances.  I would hold that the fact of arrest supplies such an exigent circumstance, since the police had lawfully gained entry to the premises to effect the arrest and since delaying the search to secure a warrant would have involved the risk of not recovering the fruits of the crime.
The majority today proscribes searches for which there is probable cause and which may prove fruitless unless carried out immediately. This rule will have no added effect whatsoever in protecting the rights of the criminal accused at trial against introduction of evidence seized without probable cause. Such evidence could not be introduced under the old rule. Nor does the majority today give any added protection to the right of privacy of those whose houses there is probable cause to search. A warrant would still be sworn out for those houses, and the privacy of their owners invaded. The only possible justification for the majority's rule is that in some instances arresting officers may search when they have no probable cause to do so and that such unlawful searches might be prevented if the officers first sought a warrant from a magistrate. Against the possible protection of privacy in that class of cases, in wich the privacy of the house has already been invaded by entry to make the arrest-an entry for which the majority does not assert that any warrant is necessary-must be weighed the risk of destruction of evidence for which there is probable cause to search, as a result of delays in obtaining a search warrant. Without more basis for radical change than the Court's opinion reveals, I would not upset the balance of these interests which has been struck by the former decisions of this Court.
In considering searches incident to arrest, it must be remembered that there will be immediate opportunity to challenge the probable cause for the search in an adversary proceeding. The suspect has been apprised of the search by his very presence at the scene, and having been arrested, he will soon be brought into contact with people who can explain his rights. As Mr. Justice Brennan noted in a dissenting opinion, joined by The Chief Justice and Justices Black and Douglas, in Abel v. United States, 362 U.S. 217, 249-250, 80 S.Ct. 683, 702, 4 L.Ed.2d 668 (1960), a search contemporaneous with a warrantless arrest is specially safeguarded since '(s)uch an arrest may constitutionally be made only upon probable cause, the existence of which is subject to judicial examination, see Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 169, 4 L.Ed.2d 134, and such an arrest demands the prompt bringing of the person arrested before a judicial officer, where the existence of probable cause is to be inquired into. Fed.Rules Crim.Proc. 5, (a) and (c) * * *. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.' And since that time the Court has imposed on state and federal officers alike the duty to warn suspects taken into custody, before questioning them, of their right to a lawyer. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).
An arrested man, by definition conscious of the police interest in him, and provided almost immediately with a lawyer and a judge, is in an excellent position to dispute the reasonableness of his arrest and contemporaneous search in a full adversary proceeding. I would uphold the constitutionality of this search contemporaneous with an arrest since there were probable cause both for the search and for the arrest, exigent circumstances involving the removal or destruction of evidence, and satisfactory opportunity to dispute the issues of probable cause shortly thereafter. In this case, the search was reasonable.
- Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), overruled Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691 (1942); Legal Tender Cases, 12 Wall. 457, 20 L.Ed. 287 (1871), overruled Hepburn v. Griswold, 8 Wall. 603, 19 L.Ed. 513 (1870).
- The majority cites Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957), as suggesting an inconsistency. There, however, in a per curiam opinion the Court merely overturned a general search in which the entire contents of a cabin, which it took 11 pages of fine print for the Court to inventory, were seized. See Abel v. United States, 362 U.S. 217, 239, 80 S.Ct. 683, 697, 4 L.Ed.2d 668 (1960) (Kremen distinguished as a 'mass seizure').
- Even Mr. Justice Frankfurter, joined in dissent in Rabinowitz by Mr. Justice Jackson, admitted that there was an exception to the search-warrant requirement in cases of necessity, and noted that this applied, for example, to vehicles which could readily be moved. 339 U.S. 56, at 73, 70 S.Ct. 430, at 438.
- Before the burglary of the coin store, petitioner had told its owner that he was planning a big robbery, had inquired about the alarm system in the store, the state of the owner's insurance, and the location of the owner's most valuable coins. Petitioner wandered about the store the day before the burglary. After the burglary, petitioner called the store's owner and accused him of robbing the store himself for the insurance proceeds on a policy which, as petitioner knew, had just been reduced from $50,000 to $10,000 coverage. On being told that the robbery had been sloppy, petitioner excitedly claimed that it had been 'real professional' but then denied the robbery. On the night of the robbery itself petitioner declined an invitation to a bicycle ride, saying he was 'going to knock over a place' and that a coin shop was 'all set.' After the robbery, he told the same neighbor that he had started to break into the coin shop, but had stopped, and then denied the whole incident. The neighbor had earlier seen stacks of typewriters in petitioner's house. Asked whether they were 'hot' petitioner replied, 'Hotter than a $3 bill.' On reading a newspaper description of the coin store burglary, the neighbor called the police.
- There were three officers at the scene of the arrest, one from the city where the coin burglary had occurred, and two from the city where the arrest was made. Assuming that one policeman from each city would be needed to bring the petitioner in and obtain a search warrant, one policeman could have been left to guard the house. However, if he not only could have remained in the house against petitioner's wife's will, but followed her about to assure that no evidence was being tampered with, the invasion of her privacy would be almost as great as that accompanying an at ual search. Moreover, had the wife summoned an accomplice, one officer could not have watched them both.
- A second arrest and search of petitioner's house occurred three days later. It relates to an entirely separate robbery of which petitioner was separately convicted and for which he was concurrently sentenced. Since no evidence was seized in the second search, and since it did not in any way affect petitioner's trial so far as the record discloses, there is no occasion to consider its propriety.
- An arrest warrant was in fact issued, but it was issued on an inadequate supporting affidavit and was therefore invalid, so that the case must be considered as though no warrant had been issued.
- This is turn assumes that where it is practicable to obtain a search warrant and the search is not contemporaneous with an arrest, a warrant must be obtained to validate the search. This is the holding of past cases and I do not question it.
- Act of June 15, 1935, c. 259, § 2, 49 Stat. 378, as amended, 18 U.S.C. § 3053.
- Act of June 18, 1934, c. 595, 48 Stat. 1008, as amended, 18 U.S.C. § 3052.
- Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S.C. § 3056 (1964 ed., Supp. IV).
- Act of July 18, 1956, as amended, Tit. I, § 104(a), 70 Stat. 570, 26 U.S.C. § 7607(2).
- Congress' expedition was possible partly because the same change had earlier been approved by a Senatorial committee. S.Rep.No.2464, 81st Cong., 2d Sess. (1950).
- There was no dispute between the two Coplon courts on this point, since it was well established that even a private person could make a warrantless arrest at common law for a felony which had actually been committed, and a peace officer could make such an arrest if he had reasonable cause to believe the offense had been committed. 1 J. Stephen, A. History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown 71-104 (first American ed. 1847).
- A search without a warrant 'can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warant. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.' Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688 (1960); Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964). And 'a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145.' Stoner v. Califon ia, supra, at 486, 84 S.Ct. at 891; James v. Louisiana, 382 U.S. 36, 37, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965). There is thus no question that a warrant to search petitioner's house would have been required had he not been arrested there. In such cases, the officers are not already lawfully on the premises, and there is not so often the same risk of the destruction of evidence nor the necessity to make an immediate search without the delay involved in securing a warrant.