|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 MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.
By granting police broad powers to make warrantless arrests, the Court today sharply reverses the course of our modern decisions construing the Warrant Clause of the Fourth Amendment. The Court turns next to the "consent to search" question last dealt with in Schneckloth [p434] v. Bustamonte, 412 U.S. 218 (1973). Without acknowledgment or analysis, the Court extends the scope of that decision to the situation expressly reserved in Schneckloth, and creates a rule inconsistent with Schneckloth's own analysis. The Court takes both steps with a remarkable lack of consideration of either the facts of this case or the constitutional questions it is deciding. That is unfortunate not only because, in my view, the Court decides the constitutional questions wrongly, but also because consideration would have shown that the first question decided today is not raised by the facts before us, and that the second question should not be resolved here, given the present posture of this case. I respectfully dissent.
Before addressing what the Court does today, I note what it does not do. It does not decide this case on the narrow question that is presented. That is unfortunate, for this is, fundamentally, a simple case.
On the afternoon of August 23, 1972, Awad Khoury, an informant of proved reliability, met with respondent Watson at a public restaurant under the surveillance of two postal inspectors. Khoury was under instructions to light a cigarette as a signal to the watching agents if Watson was in possession of stolen credit cards. Khoury lit a cigarette, and the postal inspectors moved in, made the arrest, and, ultimately, discovered under the floor mat of Watson's automobile the stolen credit cards that formed the basis of Watson's conviction and this appeal.
The signal of the reliable informant that Watson was in possession of stolen credit cards gave the postal inspectors probable cause to make the arrest. This probable cause was separate and distinct from the probable cause relating to the offense six days earlier, and provided an [p435] adequate independent basis for the arrest. Whether or not a warrant ordinarily is required prior to making an arrest, no warrant is required when exigent circumstances are present. When law enforcement officers have probable cause to believe that an offense is taking place in their presence and that the suspect is at that moment in possession of the evidence, exigent circumstances exist. Delay could cause the escape of the suspect or the destruction of the evidence. Accordingly, Watson's warrantless arrest was valid under the recognized exigent circumstances exception to the warrant requirement, and the Court has no occasion to consider whether a warrant would otherwise be necessary. [n1]
This conclusion should properly dispose of the case before us. As the Court observes, ante at 414, the Court of Appeals relied heavily on the supposed illegality of Watson's arrest in ruling that his consent to the search of his car was coerced. Neither the opinion of the Court of Appeals nor the briefs of the parties here address the remaining issue of the circumstances under which consent to search given by a suspect lawfully in custody may be deemed coerced. Since that issue is both complex and [p436] expressly reserved in Schneckloth v. Bustamonte, supra, I think it inappropriate for resolution without the benefit of the views of the parties and the Court of Appeals. Accordingly, I would reverse the Court of Appeals on the legality of the arrest, vacate its judgment, and remand the case to that court for further proceedings.
Since, for reasons it leaves unexpressed, the Court does not take this traditional course, I am constrained to express my views on the issues it unnecessarily decides. The Court reaches its conclusion that a warrant is not necessary for a police officer to make an arrest in a public place, so long as he has probable cause to believe a felony has been committed, on the basis of its views of precedent and history. As my Brother POWELL correctly observes, ante at 426-427, n. l (concurring), the precedent is spurious. None of the cases cited by the Court squarely confronted the issue decided today. Moreover, an examination of the history relied on by the Court shows that it does not support the conclusion laid upon it. After showing why, in my view, the Court's rationale does not support today's result, I shall examine the relevant decisions and suggest what I believe to be the proper rule for arrests.
The Fourth 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.
There is no doubt that, by the reference to the seizure of persons, the Fourth Amendment was intended to [p437] apply to arrests. Ex parte Burford, 3 Cranch 448 (1806). vSee generally N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 79-82 (1937). Indeed, we have often considered whether arrests were made in conformity with the Fourth Amendment. E.g., Beck v. Ohio, 379 U.S. 89 (1964); Ker v. California, 374 U.S. 23 (1963); Draper v. United States, 358 U.S. 307 (1959); Giordenello v. United States, 357 U.S. 480 (1958). Admittedly, as the Court observes, some of our decisions make passing reference to the common law rule on arrests. E.g., Carroll v. United States, 267 U.S. 132, 156 (1925); Bad Elk v. United States, 177 U.S. 529, 534 (1900); Kurtz v. Moffitt, 115 U.S. 487, 498-499 (1885). However, none of the cases cited by the Court, nor any other warrantless arrest case in this Court, mandates the decision announced today. Frequently exigent circumstances were present, so that the warrantless arrest was proper even if a warrant ordinarily may be required. Ker v. California, supra; Draper v. United States, supra; United States v. Di Re, 332 U.S. 581 (1948). Many cases have invalidated arrests as not based on probable cause, thereby bypassing the need to reach the warrant question. E.g., Beck v. Ohio, supra; Henry v. United States, 361 U.S. 98 (1959). Elsewhere the Court has simply assumed the propriety of the arrest and resolved the case before it on other grounds. Chimel v. California, 395 U.S. 752 (1969). Cf. Coolidge v. New Hampshire, 403 U.S. 443, 476 (1971). And in other cases, the Court noted, but did not reach, the warrantless arrest issue, e.g., Giordenello v. United States, supra. In sum, as the case-by-case analysis undertaken by my Brother POWELL demonstrates, the dicta relied upon by the Court in support of its decision today are just that -- dicta. See ante at 426-427, n. 1 (concurring). They are no substitute [p438] for reasoned analysis of the relationship between the warrant requirement and the law of arrest.
The Court next turns to history. It relies on the English common law rule of arrest and the many state and federal statutes following it. There are two serious flaws in this approach. First, as a matter of factual analysis, the substance of the ancient common law rule provides no support for the far-reaching modern rule that the Court fashions on its model. Second, as a matter of doctrine, the longstanding existence of a Government practice does not immunize the practice from scrutiny under the mandate of our Constitution.
The common law rule was indeed as the Court states it:
[A] peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest.
Ante at 418, and sources cited. See also Kurtz v. Mott, supra; Bad Elk v. United States, supra. To apply the rule blindly today, however, makes as much sense as attempting to interpret Hamlet's admonition to Ophelia, "Get thee to a nunnery, go" [n2] without understanding the meaning of Hamlet's words in the context of their age. [n3] For the fact is that a felony at common law and a felony today bear only slight resemblance, with the result that the relevance of the common law rule of arrest to the modern interpretation of our Constitution is minimal.
Both at common law and today, felonies find definition in the penal consequences of crime, rather than the [p439] nature of the crime itself. At common law, as this Court has several times recognized,
No crime was considered a felony which did not occasion a total forfeiture of the offender's lands, or goods, or both.
Any offense punishable by death or imprisonment for a term exceeding one year is a felony.
18 U.S.C. § 1(1). [n5] This difference reflects more than changing notions of penology. It reflects a substantive change in the kinds of crimes called felonies. Carroll v. United States, 267 U.S. at 158. [n6] Only the most serious crimes were felonies at common law, and many crimes now classified [p440] as felonies under federal or state law were treated as misdemeanors. Professor Wilgus has summarized and documented the cases:
At common law, an assault was a misdemeanor, and it was still only such even if made with the intent to rob, murder, or rape. Affrays, abortion, barratry, bribing voters, challenging to fight, compounding felonies, cheating by false weights or measures, escaping from lawful arrest, eavesdropping, forgery, false imprisonment, forcible and violent entry, forestalling, kidnapping, libel, mayhem, maliciously killing valuable animals, obstructing justice, public nuisance, perjury, riots and routs, etc. were misdemeanors. . . .
Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 572-573 (1924) (footnotes omitted). See also 9 Halsbury's Laws of England 45793 (1909). [n7] To make an arrest for any of these crimes at common law, the police officer was required to obtain a warrant, unless the crime was committed in his presence. [n8] Since many of these same crimes are commonly classified as felonies today, [n9] however, under the Court's holding, a [p441] warrant is no longer needed to make such arrests, a result in contravention of the common law.
Thus, the lesson of the common law, and those courts in this country that have accepted its rule, is an ambiguous one. Applied in it original context, the common law rule would allow the warrantless arrest of some, but not all, of those we call felons today. Accordingly, the Court is simply historically wrong when it tells us that
[t]he balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact.
Ante at 421. As a matter of substance, the balance struck by the [p442] common law in accommodating the public need for the most certain and immediate arrest of criminal suspects with the requirement of magisterial oversight to protect against mistaken insults to privacy decreed that only in the most serious of cases could the warrant be dispensed with. This balance is not recognized when the common law rule is unthinkingly transposed to our present classifications of criminal offenses. Indeed, the only clear lesson of history is contrary to the one the Court draws: the common law considered the arrest warrant far more important than today's decision leaves it.
I do not mean by this that a modern warrant requirement should apply only to arrests precisely analogous to common law misdemeanors, and be inapplicable to analogues of common law felonies. Rather, the point is simply that the Court's unblinking literalism cannot replace analysis of the constitutional interests involved. While we can learn from the common law, the ancient rule does not provide a simple answer directly transferable to our system. Thus, in considering the applicability of the common law rule to our present constitutional scheme, we must consider both of the rule's two opposing constructs: the presumption favoring warrants, as well as the exception allowing immediate arrests of the most dangerous criminals. The Court's failure to do so, indeed its failure to recognize any tension in the common law rule at all, drains all validity from its historical analysis.
Lastly, the Court relies on the numerous state and federal statutes codifying the common law rule. But this, too, is no substitute for reasoned analysis. True enough, the national and state legislatures have steadily ratified the drift of the balance struck by the common law rule past the bounds of its original intent. And it is true as well, as the Court observes, that a presumption of constitutionality attaches to every Act of Congress. But neither observation is determinative of the constitutional issue, [p443] and the doctrine of deference that the Court invokes is contrary to the principles of constitutional analysis practiced since Marbury v. Madison, 1 Cranch 137 (1803). The Court's error on this score is far more dangerous than its misreading of history, for it is well settled that the mere existence of statutes or practice, even of long standing, is no defense to an unconstitutional practice.
[N]o one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.
Walz v. Tax Comm'n, 397 U.S. 664, 678 (1970). See also Almeida-Sanchez v. United States, 413 U.S. 266 (1973); Roe v. Wade, 410 U.S. 113 (1973); Furman v. Georgia, 408 U.S. 238 (1972); Reynolds v. Sims, 377 U.S. 533 (1964). [n10] Our function in constitutional cases is weightier than the Court today suggests: where reasoned analysis shows a practice to be constitutionally deficient, our obligation is to the Constitution, not the Congress.
In sum, the Court's opinion is without foundation. It relies on precedents that are not precedents. It relies on history that offers no clear rule to impose, but only conflicting interests to balance. It relies on statutes that constitute, at best, no more than an aid to construction. The Court never grapples with the warrant requirement of the Fourth Amendment and the cases construing it. It simply announces, by ipse dixit, a rule squarely rejecting the warrant requirement we have favored for so long.
My Brother POWELL concludes:
Logic . . . would seem to dictate that arrests be subject to the warrant [p444] requirement at least to the same extent as searches.
Ante at 429 (concurring). I agree.
One of the few absolutes of our law is the requirement that, absent the presence of one of a few "jealously and carefully drawn" exceptions, Jones v. United States, 357 U.S. 493, 499 (1958), a warrant be obtained prior to any search. [n11]
[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" [within the meaning of the Fourth Amendment] unless it has been authorized by a valid search warrant.
Camara v. Municipal Court, 387 U.S. 523, 528-529 (1967). See Cady v. Dombrowski, 413 U.S. 433, 439 (1973); United States v. United States District Court, 407 U.S. 297, 315-316, 318 (1972); Coolidge v. New Hampshire, 403 U.S. at 454-455; Chimel v. California, 395 U.S. at 762; Terry v. Ohio, 392 U.S. 1 (1968); Katz v. United States, 389 U.S. 347, 357 (1967).
The rule the Court announces today for arrests is the reverse of this approach. It is, in essence, the Rabinowitz rule: "The relevant test is not whether it is reasonable to procure [an arrest] warrant, but whether the [arrest] was reasonable." United States v. Rabinowitz, 339 U.S. 56, 66 (1950). In the search context, Rabinowitz has been overruled, Chimel v. California, supra at 764-768, and thoroughly discredited, see, e.g., United States v. United States District Court, supra at 315, and n. 16. The Rabinowitz approach simply does not provide adequate protection for the important personal privacy interests codified in the [p445] Fourth Amendment. Given "[t]he history of the use, and not infrequent abuse, of the power to arrest," Wong Sun v. United States, 371 U.S. 471, 479 (163), and the fact that arrests are, in terms, as fully governed by the Fourth Amendment as searches, the logical presumption is that arrests and searches should be treated equally under the Fourth Amendment. Analysis of the interests involved confirms this supposition.
The Court has typically engaged in a two-part analysis in deciding whether the presumption favoring a warrant should be given effect in situations where a warrant has not previously been clearly required. Utilizing that approach, we must now consider (1) whether the privacy of our citizens will be better protected by ordinarily requiring a warrant to be issued before they may be arrested; and (2) whether a warrant requirement would unduly burden legitimate governmental interests. United States v. United States District Court, supra at 315; Camara v. Municipal Court, supra at 533.
The first question is easily answered. Of course, the privacy of our citizens will be better protected by a warrant requirement. We have recognized that "the Fourth Amendment protects people, not places." Katz v. United States, supra at 351. Indeed, the privacy guaranteed by the Fourth Amendment is quintessentially personal. Cf. Roe v. Wade, supra; Doe v. Bolton, 410 U.S. 179 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965). Thus, a warrant is required in search situations not because of some high regard for property, but because of our regard for the individual, and his interest in his possessions and person.
It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and [p446] private property, where that right has never been forfeited by his conviction of some public offense, -- it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment [in the classic English warrant case of Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (1765)].
Boyd v. United States, 116 U.S. 616, 630 (1886).
Not only is the Fourth Amendment directly addressed to the privacy of our citizens, but it speaks in indistinguishable terms about the freedom of both persons and property from unreasonable seizures. A warrant is required in the search situation to protect the privacy of the individual, but there can be no less invasion of privacy when the individual himself, rather than his property, is searched and seized. Indeed, an unjustified arrest that forces the individual temporarily to forfeit his right to control his person and movements and interrupts the course of his daily business may be more intrusive than an unjustified search.
Being arrested and held by the police, even if for a few hours, is, for most persons, awesome and frightening. Unlike other occasions on which one may be authoritatively required to be somewhere or do something, an arrest abruptly subjects a person to constraint, and removes him to unfamiliar and threatening surroundings. Moreover, this exercise of control over the person depends not just on his willingness to comply with an impersonal directive, such as a summons or subpoena, but on an order which a policeman issues on the spot and stands ready then and there to back up with force. The security of the individual requires that so abrupt and intrusive an authority be granted to public officials only on a guarded basis.
ALI, Model Code [p447] of Pre-arraignment Procedure, Commentary 290-291 (1975).
A warrant requirement for arrests would, of course, minimize the possibility that such an intrusion into the individual's sacred sphere of personal privacy would occur on less than probable cause. Primarily for this reason, a warrant is required for searches. Surely there is no reason to place greater trust in the partisan assessment of a police officer that there is probable cause for an arrest than in his determination that probable cause exists for a search. [n12] Last Term the Court unanimously recognized [p448] that detention of a person cannot be prolonged without judicial oversight of the probable cause determination. Gerstein v. Pugh, 420 U.S. 103 (1975). But while Gerstein may provide the best protection possible against less than probable cause warrantless arrests based on exigent circumstances, it does not fully protect the Fourth Amendment rights at stake here. A less than probable cause arrest followed by a Gerstein release is as offensive to the Fourth Amendment as a less than probable cause search that fails to uncover the evidence sought, and the requirement of a warrant is as instrumental in protecting against the one as the other. Indeed, the Court's opinion in Gerstein expressly recognizes that maximum protection of individual rights can only be realized "by requiring a magistrate's review of the factual justification prior to any arrest. . . ." Id. at 113. We come then to the second part of the warrant test: whether a warrant requirement would unduly burden legitimate law enforcement interests. Dicta in Gerstein answer this question in the affirmative, and these concerns are somewhat amplified in the concurrence of my Brother POWELL. Ante at 431-432. I believe, however, that the suggested concerns are wholly illusory. Indeed, the argument that a warrant requirement for arrests would be an onerous chore for the police seems somewhat anomalous in light of the Government's concession that
it is the standard practice of the Federal Bureau of Investigation [FBI] to present its evidence to the United States Attorney, and to obtain a warrant, before making an arrest.
Brief for United States 26 n. 15. In the past, the practice and experience of the FBI have been taken as a substantial indication that no intolerable burden would be presented by a proposed rule of procedure. Miranda v. Arizona, 384 U.S. 436, 483-486 (1966). [p449] There is no reason to accord less deference to the FBI practice here. [n13]
The Government's assertion that a warrant requirement would impose an intolerable burden stems, in large part, from the specious supposition that procurement of an arrest warrant would be necessary as soon as probable cause ripens. Brief for United States 22-24. There is no requirement that a search warrant be obtained the moment police have probable cause to search. The rule is only that present probable cause be shown and a warrant obtained before a search is undertaken. [n14] Fed.Rule Crim.Proc. 41. Cf. Berger v. New York, 388 U.S. 41, 59 (1967). The same rule should obtain for arrest warrants, where it may even make more sense. Certainly, there is less need for prompt procurement of a warrant in the arrest situation. Unlike probable cause to search, probable cause to arrest, once formed, will continue to exist for the indefinite future, at least if no intervening exculpatory facts come to light. See Wilson v. United States, 117 U.S.App.D.C. 28, 325 F.2d 224 (1963), cert. denied, 377 U.S. 1005 (1964), and [p450] United States v. Wilson, 342 F.2d 782 (CA2 1965) (both upholding delay of 16 months between formation of probable cause and issuance of arrest warrant). Cf. Hoffa v. United States, 385 U.S. 293, 310 (1966).
This sensible approach obviates most of the difficulties that have been suggested with an arrest warrant rule. Police would not have to cut their investigation short the moment they obtain probable cause to arrest, nor would undercover agents be forced suddenly to terminate their work and forfeit their covers. Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d 850 (1966). Moreover, if in the course of the continued police investigation exigent circumstances develop that demand an immediate arrest, the arrest may be made without fear of unconstitutionality, so long as the exigency was unanticipated and not used to avoid the arrest warrant requirement. Cf. Coolidge v. New Hampshire, 403 U.S. at 469-471 (evidence may be seized if in plain view only if its discovery is inadvertent). Likewise, if in the course of the continued investigation police uncover evidence tying the suspect to another crime, they may immediately arrest him for that crime if exigency demands it, and still be in full conformity with the warrant rule. This is why the arrest in this case was not improper. [n15] Other than where police attempt to evade the warrant requirement, the rule would invalidate an arrest only in the obvious situation: where police, with probable cause but without exigent circumstances, set out to arrest a suspect. Such an arrest must be void, even if exigency develops in the course of the arrest that [p451] would ordinarily validate it; otherwise the warrant requirement would be reduced to a toothless prescription.
In sum, the requirement that officers about to arrest a suspect ordinarily obtain a warrant before they do so does not seem unduly burdensome, at least no more burdensome than any other requirement that law enforcement officials undertake a new procedure in order to comply with the dictates of the Constitution. Cf. Gerstein v. Pugh, 420 U.S. 103 (1975); United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967); Miranda v. Arizona, supra; Gideon v. Wainwright, 372 U.S. 335 (1963).
It is suggested, however, that, even if application of this rule does not require police to secure a warrant as soon as they obtain probable cause, the confused officer would nonetheless be prone to do so. If so, police "would risk a court decision that the warrant had grown stale by the time it was used." Ante at 432 (POWELL, J., concurring) (footnote omitted). This fear is groundless. First, as suggested above, the requirement that police procure a warrant before an arrest is made is rather simple of application. Thus, there is no need for the police to find themselves in this "squeeze." Second, the "squeeze" is nonexistent. Just as it is virtually impossible for probable cause for an arrest to grow stale between the time of formation and the time a warrant is procured, it is virtually impossible for probable cause to become stale between procurement and arrest. [n16] Delay by law enforcement officers in executing an arrest warrant does not ordinarily affect the legality of the arrest. [n17] [p452] United States v. Wilson, supra; Wilson v. United States, supra; Carlo v. United States, 286 F.2d 841, 846 (CA2), cert. denied, 366 U.S. 944 (1961); United States v. Joines, 258 F.2d 471 (CA3), cert. denied, 358 U.S. 880 (1958); Giordenello v. United States, 241 F.2d 575 (CA5 1957), rev'd on other grounds, 357 U.S. 480 (1958). In short, staleness should be the least of an arresting officer's worries. [n18]
Thus, the practical reasons marshaled against an arrest warrant requirement are unimpressive. [n19] If anything, the virtual nonexistence of a staleness problem suggests that such a requirement would be less burdensome for police than the search warrant rule. And given the significant protection our citizens will gain from a warrant requirement, accepted Fourth Amendment [p453] analysis dictates that a warrant rule be imposed. This conclusion, then, answers the questions posed by analysis of the common law rule on arrest; in choosing between the common law's prescription that a warrant ordinarily be obtained for the arrest of persons suspected of committing less serious crimes and the common law exception allowing warrantless arrests of suspects in more serious offenses, the intervention of our Fourth Amendment and the cases developing its application necessarily favor the former approach. Thus, I believe the proper result is application of the warrant requirement, as it has developed in the search context, to all arrests.
Accordingly, I dissent from the Court's contrary holding. It is always disheartening when the Court ignores a relevant body of precedent and eschews any considered analysis. It is more so when the result of such an approach is a rule that "leave[s] law-abiding citizens at the mercy of the officers' whim or caprice," Brinegar v. United States, 338 U.S. 160, 176 (1949), and renders the constitutional protection of our "persons" a nullity. The consequences of the Court's casually adopted rationale are clear.
First, the opinion all but answers the question raised in Coolidge v. New Hampshire, 403 U.S. at 480-481, namely, "whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest." Gerstein v. Pugh, 420 U.S. at 113 n. 13. [n20] [p454] Admittedly, my Brothers STEWART and POWELL do not read the opinion to resolve that issue, and, indeed, the Court purports to leave it open. Ante at 418 n. 6. But the mode of analysis utilized here -- reliance on the common law and federal and state statutes -- provides a ready answer, as indeed the Court hints by its extended discussion of § 120.6 of the ALI Model Code of Prearraignment Procedure and its relevant commentary. Ante at 418 n. 6. See also Wilgus, 22 Mich.L.Rev. at 800 ("For a felony . . . one may break into the dwelling house to take the felon . . ."); id. at 558, 803; 9 Halsbury's Laws of England 307 (1909); 1 J. Chitty, Criminal Law *23; 4 W. Blackstone, Commentaries *292. Unless the approach of this opinion is to be fundamentally rejected, it will be difficult, if not impossible, to follow these sources to any but one conclusion -- that entry to effect a warrantless arrest is permissible.
Second, by paying no attention whatever to the substance of the offense, and considering only whether it is labeled "felony," the Court, in the guise of "constitutionalizing" the common law rule, actually does away with it altogether, replacing it with the rule that the police may, consistent with the Constitution, arrest on probable cause anyone who they believe has committed any sort of crime at all. Certainly this rule would follow [p455] if the legislatures redenominated all crimes as "felonies." As a matter of substance, it would seem to follow in any event from the holding of this case, for the Court surely does not intend to accord constitutional status to a distinction that can be readily changed by legislative fiat. [n21]
Lastly, the Court surrenders the opportunity to put teeth in our oft-expressed preference for the use of arrest warrants. Beck v. Ohio, 379 U.S. at 96; Wong Sun v. United States, 371 U.S. at 479-482. While some incentives for police to obtain arrest warrants remain, [n22] [p456] they are only indirect and have proved ineffective in the past in assuring routine application for arrest warrants when the circumstances permit it. By our holding today, the preference for an arrest warrant, which the Court has conceded is the optimal method to protect our citizens from the affront of an unlawful arrest, will remain only an ideal, one that the Court will espouse but not enforce.
Having disposed of the suggestion that the Fourth Amendment requires a warrant of arrest before the police may seize our persons, the Court turns its attention, briefly, to whether Watson voluntarily consented to the search of his automobile. I have suggested above that, because this issue is of some complexity and has not been thoroughly briefed for us I would remand this case for initial consideration of the question by the Court of Appeals. The Court, however, finds the question simplicity itself. It applies the "totality of the circumstances" test established in Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and treats the question as merely requiring the application of settled law to the facts before us.
That is not the case. Watson was in custody when his consent was obtained. The lack of custody was of decisional importance in Schneckloth, which repeatedly distinguished the case before it from one involving a suspect in custody. Id. at 232, 240-241, and n. 29, 246-248, and n. 36. The Court held:
Our decision today is a narrow one. We hold only that, when the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth [p457] Amendments require that it demonstrate that the consent was, in fact, voluntarily given, and not the result of duress or coercion, express or implied.
Id. at 248 (emphasis added). Not once, but twice, the question the Court today treats as settled was expressly reserved:
[T]he present case does not require a determination of the proper standard to be applied in assessing the validity of a search authorized solely by an alleged consent that is obtained from a person after he has been placed in custody.
Id. at 241 n. 2. See also id. at 247 n. 36.
I adhere to the views expressed in my dissent in Schneckloth, id. at 277, and therefore believe that the Government must always show that a person who consented to a search did so knowing he had the right to refuse. But even short of this position, there are valid reasons for application of such a rule to consents procured from suspects held in custody. It was, apparently, the force of those reasons that prompted the Court in Schneckloth to reserve the question. Most significantly, we have previously accorded constitutional recognition to the distinction between custodial and noncustodial police contacts. Miranda v. Arizona, 384 U.S. at 477-478. Indeed, Schneckloth directly relied on Miranda's articulation of that distinction to reach its conclusion. 412 U.S. at 232. Thus, while custodial interrogation is inherently coercive, and any consent thereby obtained necessarily suspect, Miranda (and Schneckloth) expressly reject the notion that there is anything inherently coercive about general noncustodial interrogation. 384 U.S. at 477-478; 412 U.S. at 247. For this reason it is entirely appropriate to place a substantially greater burden on the Government [p458] to validate a consent obtained from a suspect following custodial interrogation, however brief. Indeed, it is difficult, if not impossible, to square a contra conclusion with Miranda. A substantially greater burden on the Government means, quite obviously, that the fact of custody is not merely another factor to be considered in the "totality of the circumstances." [n23] And, in my view, it means that the Government must show that the suspect knew he was not obligated to consent to the search.
Whether after due consideration the Court would accept this view or not, it is a surrender of our judicial task altogether to ignore the question. And, equally disturbing, it is a distortion of our precedent to pretend that what seemed a difficult and complex problem three years ago is no problem at all today.
I respectfully dissent.
1. The Court of Appeals did not recognize this independent probable cause to arrest petitioner, perhaps because one of the arresting officers testified that the arrest was made for the earlier, rather than the contemporaneous, offense. App. 23-24. That testimony should not limit the inquiry into contemporaneous probable cause. Where the good faith of the arresting officers is not at issue, and where the crime for which a suspect is arrested and that for which the officers have probable cause are closely related, courts typically use an objective, rather than subjective, measure of probable cause. Ramirez v. Rodriguez, 467 F.2d 822 (CA10 1972); United States v. Martinez, 465 F.2d 79 (CA2 1972); United States v. Atkinson, 450 F.2d 835, 838 (CA5 1971). Since the objective facts demonstrably show probable cause as to the contemporaneous offense as well as the earlier offense, Watson's arrest is properly justified by reference to those facts.
2. W. Shakespeare, Hamlet, act iii, sc. 1, line 142.
3. Nunnery was Elizabethan slang for house of prostitution. 7 Oxford English Dictionary 264 (1933).
4. Professor Wilgus has defined felonies at common law as
those bootless crimes, prosecuted by an appeal with an offer of trial by battle, the felon's lands to go to his lord or the king, his chattels confiscated, and life and members forfeited, if guilty, and if he fled, he became an outlaw. . . .
Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 569 (1924).
5. In the States, the most common rule is that any crime punishable by death or imprisonment in the state prison is a felony. See id. at 571. See also, e.g., Ark.Stat.Ann. § 41-103 (1964); 22 Fla.Stat.Ann. § 775.08 (Supp. 1975); Ill.Ann.Stat. § 2-7 (Supp. 1975); Ky.Rev.Stat.Ann. § 431.060 (1970); Mass.Gen.Laws Ann., c. 274, § 1 (1970); Okla.Stat.Ann., Tit. 21, § 5 (1958); Wash.Rev.Code § 9.01.020 (1974).
In England at the common law the difference in punishment between felonies and misdemeanors was very great. Under our present federal statutes, it is much less important, and Congress may exercise a relatively wide discretion in classing particular offenses as felonies or misdemeanors.
Carroll v. United States, 267 U.S. at 158.
7. Indeed, by statute, it was no more than a high misdemeanor wilfully to discharge or attempt to discharge a pistol at or near the King of England. 9 Halsbury's Laws of England 459 (1909). Cf. 18 U.S.C. § 871 (felony to make threats against President of United States); §1751 (felony to assault President of United States).
8. This exception was essentially a narrowly drawn exigent circumstances exception. See Carroll v. United States, supra, at 157.
9. For example, under federal law, these are some of the common law misdemeanors, or their modern equivalents, now considered felonies: assault, 18 U.S.C. §§111-112; assault with intent to commit murder, rape or any other felony, §113; forging securities of the United States, § 471; bribing voters, § 597; escape, § 751; kidnaping, §1201; obstruction of congressional or executive investigations, § 1505; obstruction of criminal investigations, § 1510; perjury, § 1621; riots, § 2101; interception of wire or oral communications, § 2511.
See also, e.g., Ark.Stat.Ann. § 41-606 (1964) (assault with intent to kill); § 41-607 (assault with intent to rape); § 41-1805 (forgery); § 41-3005 (perjury); § 41-2308 (Supp. 1973) (kidnaping).
Fla.Stat.Ann. § 787.02 (Supp. 1975) (false imprisonment); § 831.01 (Supp. 1975) (forgery); § 837.012 (Supp. 1975) (perjury); § 843.14 (Supp. 1975) (compounding felonies); § 870.03 (Supp. 1975) (riots and routs).
Ill.Ann.Stat. § 10-1 (Supp. 1975) (kidnaping); § 14-4 (eavesdropping); § 33-1 (Supp. 1975) (bribery); § 32-2 (Supp. 1975) (perjury).
Ky.Rev.Stat. § 520.020 (1975) (escape); § 516.020 (1975) (forgery); § 509.020 (1975) (kidnaping); § 515.020 (1975) (assault with intent to rob); § 523.020 (1975) (perjury).
Mass.Gen.Laws Ann., c. 265, § 29 (1970) (assault with intent to commit a felony); c. 268, § 36 (compounding felonies); c. 268, § 13B (obstructing justice); c. 267, § 1 (Supp. 1975) (forgery); c. 272, § 99 (interception of wire and oral communications); c. 268, § 16 (Supp. 1975) (escape); c. 265, § 26 (Supp. 1975) (kidnaping).
Okla.Stat.Ann., Tit. 21, § 443 (Supp. 1975) (escape); § 499 (1958) (perjury); § 653 (Supp. 1975) (assault with intent to kill); § 1312 (1958) (riot); § 1621 (1958) (forgery).
Wash.Rev.Code § 9.11.010 (1974) (assault with intent to commit a felony); § 9.27.050 (riot); § 9.31.010 (escape); § 9.44.020 (forgery); § 9.52.010 (kidnaping); § 9.72.010 (perjury).
10. "It is clear, of course, that no Act of Congress can authorize a violation of the Constitution." Almeida-Sanchez v. United States, 413 U.S. at 272.
[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions.
Katz v. United States, 389 U.S. 347, 357 (1967).
12. In fact, the reasons relating to personal privacy so often itemized by the Court in requiring a warrant to search appear to apply with equal force to arrests. In Johnson v. United States, 333 U.S. 10 (1948), Mr. Justice Jackson laid down the reasons for a search warrant in these classic lines:
The point of the Fourth Amendment which often is not grasped by zealous officers is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. 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. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern not only to the individual, but to a society which chooses to dwell in reasonable security and freedom from surveillance. 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.
Id. at 13-14. Substitute "arrest" for "search" and replace references to the home with references to the person, and the justification for an arrest warrant compellingly emerges.
13. The Miranda Court rejected as irrelevant the argument that the FBI deals with crimes different from those dealt with by state authorities. 384 U.S. at 486.
14. The police will, however, encounter problems of "staleness" of their information if they delay too long in seeking a search warrant. E.g., Sgro v. United States, 287 U.S. 206 (1932); United States v. Sawyer, 213 F.Supp. 38, 40 (ED Pa.1963). See generally Annot., 100 A.L.R.2d 525 (1965). But see People v. Wright, 367 Mich. 611, 116 N.W.2d 786 (1962). This problem relates, however, to the existence at the time the warrant is applied for of probable cause to believe the object to be seized remains where it was, not to whether the earlier probable cause mandated immediate application for a warrant. Mascolo, The Staleness of Probable Cause in Affidavits for Search Warrants: Resolving the Issue of Timeliness, 43 Conn.B.J. 189 (1969). This problem has no bearing, of course, in connection with a warrant to arrest.
15. Although the postal inspectors here anticipated the occurrence of the second crime, they could not have obtained a warrant for Watson's arrest for that crime until probable cause formed, just moments before the arrest. A warrant based on anticipated facts is premature and void. United States v. Roberts, 333 F.Supp. 786 (ED Tenn 1971).
16. Thus, unlike a search warrant, an arrest warrant typically does not require execution within a specified time period or "forthwith." Compare Fed.Rule Crim.Proc. 41(c) with Rules 4 and 9.
17. Pre-arrest delay may violate a defendant's due process rights and cause dismissal of the charges if the delay is such as to impair the defendant's ability to defend himself or is deliberate and unjustified. United States v. Feinberg, 383 F.2d 60, 65 (CA2 1967), cert. denied, 389 U.S. 1044 (1968); United States v. Harbin, 377 F.2d 78 (CA4 1967); Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d 850 (1966); Powell v. United States, 122 U.S.App.D.C. 229, 231, 352 F.2d 705, 707 (1966). The effect of such delay, however, is completely unrelated to the warrant question.
18. It is suggested that staleness would be most serious in situations where the original probable cause justifying a warrant is undercut by exculpatory evidence, only to be reaffirmed by further inculpatory evidence. Why this should be a problem baffles me. It should be obvious that when the probable cause supporting a warrant no longer exists, the warrant is void and the suspect cannot be arrested. That probable cause is thereafter again found only tells us that, absent exigency, a subsequent warrant should be obtained, not that the void warrant should somehow be resurrected. Cf. Sgro v. United States, 287 U.S. 206 (1932).
19. The fear that "endless litigation" will result from a warrant rule cannot be credited as an additional practical reason against such a rule. Cf. ante at 423-424. Recognition of a constitutional right inevitably results in litigation to enforce that right. We would quickly lose all protection from our Constitution if it could successfully be argued that its guarantees should be ignored because if they were recognized our citizens would begin to assert them.
20. The Court of Appeals relied on language from Coolidge v. New Hampshire to support its conclusion that a warrant was required to arrest Watson:
Indeed, if MR. JUSTICE WHITE is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man's house for purposes of arrest, it might be wise to reexamine the assumption. . . .
. . . The case of Warden v. Hayden, [387 U.S. 294 (1967),] where the Court elaborated a "hot pursuit" justification for the police entry into the defendant's house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances.
403 U.S. at 480-481. The Court is correct that this language relates only to the question reserved both in Gerstein v. Pugh, 420 U.S. at 113 n. 13, and in this case.
21. Thus the Court calls into question the line of state cases holding unconstitutional statutes authorizing warrantless arrests for misdemeanors not committed in the presence of the arresting officer. In re Kellam, 55 Kan. 700, 41 P. 960 (1895); Robison v. Miner, 68 Mich. 549, 37 N.W. 21 (1888); Pinkerton v. Verberg, 78 Mich. 573, 44 N.W. 579 (1889); Gunderson v. Struebing, 125 Wis. 173, 104 N.W. 149 (1905); Ex parte Rhodes, 79 So. 462 (Ala.1918). Of course, such a result (or, indeed, the result I espouse herein) may still be sustained under the pertinent provisions of the state constitution. Cf. Oregon v. Hass, 420 U.S. 714, 726 (1975) (MARSHALL, J., dissenting).
22. After today, there are two primary incentives for the police to obtain an arrest warrant. First, the Court has suggested, but never held, that a stronger showing of probable cause may be needed to justify a warrantless arrest than would be required if a warrant had been obtained. Wong Sun v. United States, 371 U.S. 471, 479-480 (1963). Cf. United States v. Ventresca, 380 U.S. 102, 106 (1965) (searches). This two-tier standard of probable cause may prove too slippery for ready application, however, especially given the already imprecise definition of probable cause itself, Carroll v. United States, 267 U.S. at 161. What the Court intends, I suspect, is simply that the evidence of probable cause supporting a warrantless arrest will be subjected to closer scrutiny than that, underlying a warrant supported arrest.
The second incentive for police to obtain a warrant is that they may desire to present their evidence to a magistrate so as to be sure that they have probable cause. If probable cause is lacking, the police will then have an opportunity to gather more evidence rather than make an illegal arrest that would result in suppression of any evidence seized.
23. Many Courts of Appeals have recognized that a custodial consent is different in kind from one obtained from a person not in custody, and have placed a stiff burden on the Government to validate the consent. United States v. Rothman, 492 F.2d 1260, 1265 (CA9 1973); United States v. Nikrasch, 367 F.2d 740, 744 (CA7 1966); Judd v. United States, 89 U.S.App.D.C. 64, 66, 190 F.2d 649, 651 (1951).