|United States v. Watson
[ White ]
[ Powell ]
[ Stewart ]
[ Marshall ]
United States v. Watson
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MR JUSTICE POWELL, concurring.
Although I concur in the opinion of the Court, I write to express additional views. I note at the outset that the case could be disposed of on the ground that respondent's consent to the search was plainly voluntary. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Indeed, the evidence that his consent was the product of free will is so overwhelming that I would have held the consent voluntary even on the assumption that the preceding warrantless arrest was unconstitutional, and that the doctrine of Wong Sun v. United States, 371 U.S. 471 (1963), therefore was applicable. See Brown v. Illinois, 422 U.S. 590 (1975). The Court's different route to [p426] the same result requires, however, an inquiry into the validity of the arrest itself.
Respondent was arrested without a warrant in a public restaurant six days after postal inspectors learned from a reliable source that he possessed stolen credit cards in violation of 18 U.S.C. § 1708. The Government made no effort to show that circumstances precluded the obtaining of a warrant, relying instead for the validity of the arrest solely upon the showing of probable cause to believe that respondent had committed a felony. Respondent contends, and the Court of Appeals held, that the absence of any exigency justifying the failure to procure a warrant renders this arrest violative of the Fourth Amendment.
In reversing the Court of Appeals, the Court concludes that nothing in our previous cases involving warrantless arrests supports the position of respondent and the Court of Appeals. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 113 (1975). But it is fair to say, I think, that the prior decisions of the Court have assumed the validity of such arrests without addressing in a reasoned way the analysis advanced by respondent. [n1] Today's decision is [p427] the first square holding that the Fourth Amendment permits a duly authorized law enforcement officer to make a warrantless arrest in a public place even though he had adequate opportunity to procure a warrant after developing probable cause for arrest.
On its face, our decision today creates a certain anomaly. There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few "jealously and carefully drawn" exceptional circumstances. Jones v. United States, 357 U.S. 493, 499 (1958); see Almeida-Sanchez v. United States, 413 U.S. 266, 279-280 (1973) (POWELL, J., concurring); United States v. United States District Court, 407 U.S. 297, 314-321 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (1971). On more than one occasion, this Court has rejected an argument that a law enforcement officer's own probable cause to search a private place for contraband or evidence of crime should excuse his otherwise unexplained failure to procure a warrant beforehand. Id. at 450; Katz v. United States, 389 U.S. 347, 356-358 [p428] (1967). In short, the course of judicial development of the Fourth Amendment with respect to searches has remained true to the principles so well expressed by Mr. Justice Jackson:
Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.
Johnson v. United States, 333 U.S. 10, 14 (1948).
Since the Fourth Amendment speaks equally to both searches and seizures, and since an arrest, the taking hold of one's person, is quintessentially a seizure, it would seem that the constitutional provision should impose the same limitations upon arrests that it does upon searches. Indeed, as an abstract matter, an argument can be made that the restrictions upon arrest perhaps should be greater. A search may cause only annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimension only when it turns up evidence of criminality. An arrest, however, is a serious personal intrusion regardless of whether the person seized is guilty or innocent. Although an arrestee cannot be held for a significant period without some neutral determination that there are grounds to do so, see Gerstein, supra, no decision that he should go free can come quickly enough to erase the invasion of his privacy that already will have occurred. See Chimel v. California, 395 U.S. 752, 776 (1969) (WHITE, J., dissenting); cf. United States v. [p429] Robinson, 414 U.S. 218, 237-238 (1973) (POWELL, J., concurring). Logic therefore would seem to dictate that arrests be subject to the warrant requirement at least to the same extent as searches.
But logic sometimes must defer to history and experience. The Court's opinion emphasizes the historical sanction accorded warrantless felony arrests. In the early days of the common law, most felony arrests were made upon personal knowledge, and without warrants. So established were such arrests as the usual practice that Lord Coke seriously questioned whether a justice of the peace, receiving his information second-hand instead of from personal knowledge, even could authorize an arrest by warrant. 4 E. Coke, Institutes 177 (6th ed. 1681). By the late 18th century, it had been firmly established by Blackstone, with an intervening assist from Sir Matthew Hale, that magistrates could issue arrest warrants upon information supplied by others. 4 W. Blackstone, Commentaries *290; see 2 M. Hale, Pleas of the Crown *108-110. But recognition of the warrant power cast no doubt upon the validity of warrantless felony arrests, which continued to be practiced and upheld as before. 4 W. Blackstone, supra at *282; 1 J. Chitty, Criminal Law *14-15. There is no historical evidence that the Framers or proponents of the Fourth Amendment, outspokenly opposed to the infamous general warrants and writs of assistance, were at all concerned about warrantless arrests by local constables and other peace officers. See N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-105 (1937); cf. Gerstein v. Pugh, 420 U.S. at 114-116. As the Court today notes, the Second Congress' passage of an Act authorizing such arrests [n2] so soon after the adoption of the Fourth Amendment [p430] itself underscores the probability that the constitutional provision was intended to restrict entirely different practices.
The historical momentum for acceptance of warrantless arrests, already strong at the adoption of the Fourth Amendment, has gained strength during the ensuing two centuries. Both the judiciary and the legislative bodies of this Nation repeatedly have placed their imprimaturs upon the practice and, as the Government emphasizes, law enforcement agencies have developed their investigative and arrest procedures upon an assumption that warrantless arrests were valid so long as based upon probable cause. The decision of the Court of Appeals in this case was virtually unprecedented. [n3] Of course, no practice that is inconsistent with constitutional protections can be saved merely by appeal to previous uncritical acceptance. But the warrantless felony arrest, long preferred at common law and unimpeached at the passage of the Fourth Amendment, is not such a practice. Given the revolutionary implications of such a holding, a declaration at this late date that warrantless felony arrests are constitutionally infirm would have to rest upon reasons more substantial than a desire to harmonize the rules for arrest with those governing searches. Cf. United States v. Robinson, supra at 230. [p431]
Moreover, a constitutional rule permitting felony arrests only with a warrant or in exigent circumstances could severely hamper effective law enforcement. Good police practice often requires postponing an arrest, even after probable cause has been established, in order to place the suspect under surveillance or otherwise develop further evidence necessary to prove guilt to a jury. [n4] Under the holding of the Court of Appeals, such additional investigative work could imperil the entire prosecution. Should the officers fail to obtain a warrant initially, and later be required by unforeseen circumstances to arrest immediately with no chance to procure a last-minute warrant, they would risk a court decision that the subsequent exigency did not excuse their failure to get a warrant in the interim since they first developed probable cause. If the officers attempted to meet such a contingency [p432] by procuring a warrant as soon as they had probable cause, and then merely held it during their subsequent investigation, they would risk a court decision that the warrant had grown stale by the time it was used. [n5] Law enforcement personnel caught in this squeeze could ensure validity of their arrests only by obtaining a warrant and arresting as soon as probable cause existed, thereby foreclosing the possibility of gathering vital additional evidence from the suspect's continued actions.
In sum, the historical and policy reasons sketched above fully justify the Court's sustaining of a warrantless arrest upon probable cause, despite the resulting divergence between the constitutional rule governing searches and that now held applicable to seizures of the person. [n6]
Finally, I share the view expressed in the opinion of MR. JUSTICE STEWART. It makes clear that we do not today consider or decide whether or under what circumstances [p433] an officer lawfully may make a warrantless arrest in a private home or other place where the person has a reasonable expectation of privacy. [n7]
1. None of the decisions cited by the Court today squarely faced the issue. In Henry v. United States, 361 U.S. 98 (1959), for example, the Court declared that 18 U.S.C. § 3052 which authorizes an FBI agent to make a warrantless arrest when he has reasonable grounds to believe that a person has committed a felony, "states the constitutional standard." 361 U.S. at 100. But that declaration was made without discussion, and the issue actually presented to and a addressed by the Court was whether there was, in fact, probable cause for the arrest in that case. Similarly, Draper v. United States, 358 U.S. 307 (1959), stands only for the validity of a warrantless arrest made with probable cause to believe that the arrestee had committed an offense in the arresting officer's presence. See id. at 313. As this Court had noted in an earlier case, such an arrest presents no danger that an innocent person might be ensnared, since the officer observes both the crime and the culprit with his own eyes; there thus would be no reason to require a warrant in that particular situation even if there might be in others. Trupiano v. United States, 334 U.S. 699, 705 (1948). Another case cited by the Court, Carroll v. United States, 267 U.S. 132 (1925), involved no challenge to an arrest. Nor did Abel v. United States, 362 U.S. 217 (1960), in which the Court refused to consider petitioner's challenge to his arrest under less than a judicial warrant because of his failure to raise the issue in the lower courts. See id. at 230-232. Finally, in Ker v. California, 374 U.S. 23 (1963), the Court addressed only the questions of whether there was probable cause for arrest and whether the method of entry for the purpose of arrest was reasonable; no issue arose as to whether a warrant was necessary for either the arrest or the entry.
2. Act of May 2, 1792, c. 18, § 9, 1 Stat. 265; See 28 U.S.C. § 570.
3. Respondent has cited no other decision, state or federal, in support of the Court of Appeals' result in this case. The Government stated in its petition that the decision below was the first of which it was aware that required a warrant for an arrest in a public place. The Court of Appeals relied upon part of this Court's discussion in Coolidge v. New Hampshire, 403 U.S. 443, 480-481 (1971), but, as other courts have recognized, that discussion had nothing to do with warrantless arrests in public places. See, e.g., United States v. Miles, 468 F.2d 482, 486-487, and n. 6 (CA3 1972); United States v. Bazinet, 462 F.2d 982, 987 (CA8), cert. denied sub nom. Knox v. United States, 409 U.S. 1010 (1972).
4. This Court has not attempted a more precise definition of probable cause than the one in Carroll v. United States, 267 U.S. at 161, where the standard was affirmed as
facts and circumstances . . . such as to warrant a man of [reasonable] prudence and caution in believing that the offense has been committed
and, of course, that the person to be arrested was the offender. See generally Henry v. United States, 361 U.S. at 100-102. Whatever evidence may be necessary to establish probable cause in a given case, however, it is clear that it never need rise to the level required to prove guilt beyond a reasonable doubt. Id. at 102; Draper v. United States, 358 U.S. at 311-312, and n. 4. The different standards for arrest and conviction reflect a recognition of society's valid interest in the earliest detention of suspected criminals that is consistent with the individual's interest in freedom from arbitrary interference with his liberty. See Brinegar v. United States, 338 U.S. 160, 176 (1949). But society's equally valid interest in ultimate conviction of the guilty requires the police sometimes to continue their investigation after establishing probable cause to arrest, even if doing so means they have to leave a suspect at large pending such investigation. See generally ALI, A Model Code of Pre-arraignment Procedure § 120.1, Commentary, pp. 289, 292-296 (1975).
5. The probable cause to support issuance of an arrest warrant normally would not grow stale as easily as that which supports a warrant to search a particular place for particular objects. This is true because, once there is probable cause to believe that someone is a felon, the passage of time often will bring new supporting evidence. But in some cases, the original grounds supporting the warrant could be disproved by subsequent investigation that at the same time turns up wholly new evidence supporting probable cause on a different theory. In those cases, the warrant could be stale because based upon discredited information.
6. I do not understand today's decision to suggest any retreat from our longstanding position that such an arrest should receive careful judicial scrutiny if challenged.
An arrest without a warrant bypasses the safeguards provided by an objective determination of probable cause, and substitutes instead the far less reliable procedure of an "after the event" justification for the arrest . . . too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.
Beck v. Ohio, 379 U.S. 89, 96 (1964).
7. Compare Dorman v. United States, 140 U.S.App.D.C. 313, 318-319, 435 F.2d 385, 390-391 (1970) (en banc) (warrant required, absent exigent circumstances, for entry into a suspect's home for purpose of arrest), with People v. Eddington, 23 Mich.App. 210, 178 N.W.2d 686 (1970), aff'd, 387 Mich. 551, 198 N.W.2d 297 (1972) (only probable cause to arrest needed to enter suspect's home if there is a reasonable belief that he is there). Compare England v. State, 488 P.2d 1347 (Okla.Crim.1971) (search warrant needed to enter residence of third party to arrest suspect), with United States v. Brown, 151 U.S.App.D.C. 365, 369, 467 F.2d 419, 423 (1972) (only an arrest warrant, plus reasonable belief that the suspect is present, necessary to support entry onto third party's premises).