Gilbert v. California (388 U.S. 263)/Concurrence-dissent Douglas

Mr. Justice DOUGLAS, concurring in part and dissenting in part.

While I agree with the Court's opinion except for Part I, #fn-s-s (as respects which I agree with Mr. Justice BLACK and Mr. Justice FORTAS), I would reverse and remand for a new trial on the search and seizure point. The search of the petitioner's home is sought to be justified by the doctrine of 'hot pursuit,' even though the officers conducting the search knew that petitioner, the suspected criminal, was not at home.

At about 10:30 a.m. on January 3, 1964, a California bank was robbed by two armed men; a police officer was killed by one of the robbers. Another officer shot one of the robbers, Weaver, who was captured a few blocks from the scene of the crime. Weaver told the police that he had participated in the robbery and that a person known to him as 'Skinny' Gilbert was his accomplice. He told the officers that Gilbert lived in Apartment 28 of 'a Hawaiian sounding named apartment house' on Los Feliz Boulevard. This information was given to the Federal Bureau of Investigation and was broadcast to a field agent, Kiel, who was instructed to find the apartment. Kiel located the 'Lanai,' an apartment on Los Feliz Boulevard, at about 1 p.m., informed the radio control, and engaged the apartment manager in conversation. While they were talking, a man gave a key to the manager and told her that he was going to San Francisco for a new days. Agent Kiel learned from the manager that Flood, one of the two men who had rented Apartment 28 the previous day, was the man who had just turned in the key and left by the rear exit. The agent ran out into the alleyway but saw no one.

In the meantime, the federal officers learned from Weaver that Gilbert was registered under the name of Flood. They also learned that three men may have been involved in the robbery-the two who entered the bank and a third driving the getaway car. About 1:10 p.m., additional federal agents arrived at the apartment, in response to Agent Kiel's radio summons. Kiel told them that the resident of Apartment 28 was a Robert Flood who had just left. The agents obtained a key from the manager, entered the apartment and searched for a person or a hiding place for a person. They found no one. But they did find an envelope containing pictures of petitioner; the pictures were seized and shown to bank employees for identification. The agents also found a notebook containing a diagram of the area surrounding the bank, a clip from an automatic pistol, and a bag containing rolls of coins bearing the marking of the robbed bank. On the basis of this information, a search warrant was issued, and the automatic clip, notebook, and coin rolls were seized. Petitioner was arrested in Pennsylvania on February 26. The items seized during the search of his apartment were introduced in evidence at his trial for murder.

The California Supreme Court justified the search on the ground that the police were in not pursuit of the suspected bank robbers. The entry of the apartment was lawful. The subsequent search and seizure was lawful since the officers were trying to further identify suspects and to facilitate continued pursuit. 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.

I have set forth the testimony relating to the search more fully in the Appendix to this opinion. For the reasons stated there, I cannot agree that 'the facts do not appear with sufficient clarity to enable us to decide' the serious question presented.

Since the search and seizure took place without a warrant, it can stand only if it comes within one of the narrowly defined exceptions to the rule that a search and seizure must rest upon a validly executed search warrant. See, e.g. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Rios v. United States, 364 U.S. 253 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688; Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856. One of these exceptions is that officers having probable cause to arrest may enter a dwelling to make the arrest and conduct a contemporaneous search of the place of arrest 'in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody.' Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145. This, of course, assumes that an arrest has been made, and that the search 'is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.' Stoner v. State of California, supra, 376 U.S. at 486, 84 S.Ct. at 891. In this case, the exemption is not applicable since the arrest was made many days after the search and at a location far removed from the search.

Here, the officers entered the apartment, searched for petitioner and did not find him. Nevertheless, they continued searching the apartment and seized the pictures; the inescapable conclusion is that they were searching for evidence linking petitioner to the bank robbery, not for the suspected robbers. The court below said that, having legally entered the apartment, the officer 'could properly look through the apartment for anything that could be used to identify the suspects or expedite the pursuit.' 63 Cal.2d, at 707, 47 Cal.Rptr., at 919, 408 P.2d, at 375.

Prior to this case, police could enter and search a house without a warrant only incidental to a valid arrest. If this judgment stands, the police can search a house for evidence, even though the suspect is not arrested. The purpose of the search is, in the words of the California Supreme Court, 'limited to and incident to the purpose of the officers' entry'-that is, to apprehend the suspected criminal. Under that doctrine, the police are given license to search for any evidence linking the homeowner with the crime. Certainly such evidence is well calculated 'to identify the suspects,' and will 'expedite the pursuit' since the police can then concentrate on the person whose home has been ransacked. Ibid.

The search and seizure in this case violates another limitation, which concededly the ill-starred decision in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, flouted, viz., that a general search for evidence, even when the police are in 'hot pursuit' or have a warrant of arrest, does not make constitutional a general search of a room or of a house (United States v. Lefkowitz, 285 U.S. 452, 463-464, 52 S.Ct. 420, 422-423, 76 L.Ed. 877). If it did, then the police, acting without a search warrant, could search more extensively than he n they a have warrant. For the warrant must, as prescribed by the Fourth Amendment, 'particularly' describe the 'things to be seized.' As stated by the Court in United States v. Lefkowitz, supra, at 464, 52 S.Ct., at 423:

'The authority of officers to search one's house or place of     business contemporaneously with his lawful arrest therein      upon a valid warrant of arrest certainly is not greater than      that conferred by a search warrant issued upon adequate proof      and sufficiently describing the premises and the things      sought to be obtained. Indeed, the informed and deliberate     determinations of magistrates empowered to issue warrants as      to what searches and seizures are permissible under the      Constitution are to be preferred over the hurried action of      officers and others who may happen to make arrests. Security     against unlawful searches is more likely to be attained by      resort to search warrants than by reliance upon the caution      and sagacity of petty officers while acting under the      excitement that attends the capture of persons accused of      crime.'

Indeed, if at the very start, there had been a search warrant authorizing the seizure of the automatic clip, notebook, and coin rolls, the envelope containing pictures of petitioner could not have been seized. 'The requirement that warrants shall particularly describe the things to be seized * *  * prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231.

The modern police technique of ransacking houses, even to the point of seizing their entire contents as was done in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, is a shocking departure from the philosophy of the Fourth Amendment. For the kind of search conducted here was indeed a general search. And if the Fourth Amendment was aimed at any particular target it was aimed at that. When we take that step, we resurrect one of the deepest-rooted complaints that gave rise to our Revolution. As the Court stated in Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 529, 29 L.Ed. 746:

'The practice had obtained in the colonies of issuing writs     of assistance to the revenue officers empowering them, in      their discretion, to search suspected places for smuggled      goods, which James Otis pronounced 'the worst instrument of      arbitrary power, the most destructive of English liberty and      the fundamental prnciples of law, that ever was found in an      English and the fundamental principles of law, liberty of      every man in the hands of every petty officer.' This was in      February, 1761, in Boston, and the famous debate in which it      occurred was perhaps the most prominent event which      inaugurated the resistance of the colonies to the oppressions      of the mother country. 'Then and there,' said John Adams,     'then and there was the first scene of the first act of      opposition to the arbitrary claims of Great Britain. Then and     there the child Independence was born."

I would not allow the general search to reappear on the American scene.

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.

As the Court notes, there is some confusion in the record respecting the timing of events surrounding the search and the breadth of purpose with which the search was conducted. The confusion results from the testimony of the agents involved.

Agent Kiel testified that Agents Schlatter and Onsgaard arrived at the apartment at about 1:10 and entered the apartment in a minute or two after their arrival. Kiel received the photographs from Agent Schlatter between 1:25 and 1:30.

Agent Schlatter testified that he, Agent Onsgaard and some local police arrived at the apartment about 1:05 and that Agent Crowley and one or two local police officers arrived in another car at the same time. Schlatter briefly talked to Kiel and the apartment manager and then entered the apartment. Upon entering he saw no oe. He 'made a very fast search of the apartment for (a) person or a hiding place of a person and * *  * found none.' This search took 'a matter of seconds or a minute at the outside' and '(a)fter we had searched for a person or persons, and no one was there, it then became a matter of a stakeout under the assumption that the person or persons involved would come back.' It seemed to Schlatter that 'an agent had (the photograph) in his hand,' when he first saw it, that it 'was in the hands of an agent or an officer,' and Schlatter had 'a vague recollection that (the agent or officer told him he had found it) in the bedroom *  *  * .' There were a number of photographs. Schlatter took the photographs out to Kiel and instructed him to take one of them to the savings and loan association and see if anyone there could recognize the photograph. Schlatter testified that he was in the apartment for about 30 minutes after making the search and left other agents behind when he left.

Agent Crowley testified that he entered the apartment 'around 1:30, give or take a few minutes either way' and that he would say that the other officers had been in the apartment less than five minutes before he entered. He believed that 'the officers and the other agent who had been with (him) at the rear of the building when the first entry was made, entered with (him).' When Crowley entered the apartment it 'had already been searched for people.' He received 'instructions * *  * to look through the apartment for anything we could find that we could use to identify or continue the pursuit of this person without conducting a detailed search.' In the bedroom, on the dresser, Crowley saw an envelope bearing the name 'Marlboro Photo Studio'; it appeared to him to be an envelope containing photos and he could see that there was something inside. Crowley opened the envelope and saw several copies of photographs. He discussed the matter with 'Onsgaard who was in charge in the building and he instructed (Crowley) to give it to another agent for him to utilize in pursuing the investigation, and (he was) reasonably certain that that agent was Mr. Schlatter.' This was about 1:30 according to Crowley. In the course of his search which turned up the photographs, Crowley 'turned over (items) to see what was on the reverse, such as business cards, sales slips from local stores, that sort of item which might have been folded and would appear to possibly contain information of value to pursuit.' He relayed the information obtained in this manner to the man coordinating the operation. Crowley remained in the apartment until the next morning.

Agent Townsend testified that he arrived at the apartment '(s)ometime between perhaps 1:30 and 2:00.' Within an hour of his arrival, he began a search. Townsend testified that he, Agent Crowley, another agent and a local officer 'looked through the bedroom closet and the dresser and I think the headstand.' This was after it was known that no one, other than agents and police officers, was in the apartment. Townsend stated that the agents and officers were '(i)n and out of the bedroom,' that he found money in the bedroom dresser about an hour after he arrived in the apartment, and that he could not 'say specifically' whether Crowley was there at that time.

Thus, there is some conflict regarding the times at which the events took place and with respect to the nature of the searches conducted by the various officers. The way I read the record, however, it is not in such a state 'that the facts do not appear with sufficient clarity to enable us to decide' the question presented. Crowley's testimony that he came upon the photographs while searching 'for anything * *  * that we could use to identify or continue the pursuit' stands uncontradicted, as does his testimony that the apartment had already been searched for a person prior to his search uncovering the photographs. Schlatter's testimony that the operation 'became a matter of a stake-out' after the unsuccessul search for a person does not contradict Crowley's testimony. A search for identifying evidence is certainly compatible with a 'stake-out.' And Crowley best knew what he was doing when he discovered the photographs. Nor does Townsend's testimony that he and others, perhaps including Crowley, conducted a detailed search conflict with Crowley's testimony. First, the record indicates that the detailed search was conducted after the photographs had been found. According to the testimony of Kiel and Schlatter, Schlatter gave the photographs to Kiel at about 1:30; according to Townsend, he arrived sometime between 1:30 and 2. Second, even if the detailed search took place before Crowley found the photographs and Crowley participated in that search, that does not indicate that Crowley's search which turned up the photographs was more limited than Crowley claimed. If anything, it would indicate that his search was more general than he stated. Finally, Townsend's testimony as to the general search does not conflict with Schlatter's testimony that the operation became a 'stake-out' after the suspect was not found. As I have said, a 'stake-out' does not preclude a detailed search for evidence. And, the record indicates that Schlatter was not in the apartment when Townsend and the others conducted the detailed search.

The way I read the record, the photographs were discovered in the course of a general search for evidence. But even if Crowley is not believed and his testimony relating to the nature of his search is thrown out and it is simply assumed that he came upon the envelope in the course of a search for the suspect, there was no reason to pry into the envelope and seize the pictures-other than to obtain evidence. An envelope would contain neither the suspect nor the weapon.

Mr. Justice WHITE, whom Mr. Justice HARLAN and Mr. Justice STEWART join, concurring in part and dissenting in part.

I concur in Parts I, II, and III of the Court's opinion, but for the reasons stated in my separate opinion in United States v. Wade, 386 U.S. 250, 87 S.Ct. 1944, 18 L.Ed.2d 1170, I dissent from Part IV of the Court's opinion and would therefore affirm the judgment of the Supreme Court of California.

Mr. Justice FORTAS, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part.