Giordenello v. United States/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice BURTON and Mr. Justice WHITTAKER concur, dissenting.

I agree that petitioner did not waive his right to attack the complaint by his waiver of preliminary examination. But I cannot agree to other conclusions of the Court which, for all practical purposes, free another narcotics peddler, this time on the ground that the complaint did not provide 'a sufficient basis upon which a finding of probable cause could be made.'

The complaint stated that petitioner 'on or about January 26, 1956, at Houston, Texas * *  * did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation,' citing the statute violated. Petitioner contends that these allegations did not meet the 'essential facts' requirement of Rule 3 of the Federal Rules of Criminal Procedure. The Court does not pass on this contention, but instead reverses on Rule 4, reasoning that the complaint was deficient because it contained 'no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; (did) not indicate any sources for the complainant's belief; and (did) not set forth any other sufficient basis upon which a finding of probable cause could be made.' I note that petitioner, in his 39-page brief, does not rely on Rule 4, satisfying himself with contentions under Rule 3.

The Court is entirely in error in advancing the Rule 4 ground. The complaint alleged an actual occurrence which under the law constituted a prima facie offense-possession of narcotics. Unlawful importation is presumed. 35 Stat. 614, as amended, 21 U.S.C. § 174, 21 U.S.C.A. § 174. See Casey v. United States, 1928, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632. Petitioner's contention is that the complaint imported personal knowledge when in fact it was based in part on information. It thus appears strange for the Court to say that 'deficiencies' in the complaint 'could not be cured by the Commissioner's reliance upon a presumption * *  * (of) personal knowledge.' Implicit in petitioner's entire argument is the fact that no presumption was indulged. The complaint was positive and absolute in alleging that petitioner on a certain day and at a specific place 'did receive (and) conceal' heroin. Therefore, the Court's first objection, i.e., absence of an allegation of personal knowledge, is manifestly untenable. As to the second, concerning 'sources for the complainant's belief,' that is something never required in a complaint. In fact, as the Court well knows, sources are considered confidential in narcotics cases and divulgence is seldom required. Such a requirement is a wholly unnecessary and unwarranted extension of Rule 4. Finally, the catchall objection that the complaint did 'not set forth any other sufficient basis' constituting probable cause overlooks the fact that Agent Finley directly and explicitly stated under oath that petitioner 'did receive (and) conceal' heroin. It therefore follows as the night does the day that 'probable cause' existed, and the Commissioner had no recourse other than to issue the warrant. Neither the Court nor petitioner points out what more must be alleged.

The caveat that the Commissioner 'should not accept without question the complainant's mere conclusion' is not applicable here. If the statement that petitioner did 'receive' and 'conceal' narcotic drugs is a conclusion, it is also a fact. Unlike other criminal offenses, narcotics violations require no specific intent, and there is no need to spell out facts tending to show such intent. The distinction the Court draws between conclusions and facts is untenable because there is no need here for inferences, unlike ordinary criminal cases. If the accused has 'possession' he has committed an offense, absent satisfactory explanation therefor. And certainly one cannot 'receive' and 'conceal' without having 'possession.' Relating the purpose served by a complaint to that of an application for a search warrant, as the Court does here, citing Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, is most unfortunate. The obliteration of valid distinctions between the two can have little effect on narcotics cases, because subsequent to the arrest here the Congress authorized officers to make arrests without a warrant where there are 'reasonable grounds to believe that the person to be arrested has committed or is committing' a narcotics offense. 70 Stat. 570, 26 U.S.C. (Supp. V) § 7607, 26 U.S.C.A. § 7607. But in other fields of criminal law enforcement it increases the great burden already placed on officers and, like the requirement as to 'sources' and 'other evidentiary facts,' only beclouds what was clear as to the requisites of a complaint. The considerations underlying arrest are not apposite to those of search. As we have seen, arrests can be made in narcotics cases without a warrant where 'reasonable grounds' are present. Prior to this Federal Act, state law was applicable and in Texas permitted arrests without a warrant on 'probable cause' to believe a narcotics offense had been committed. See Giacona v. State, Tex.Cr.R., 298 S.W.2d 587, 588-589; Thomas v. State, 163 Tex.Cr.R. 68, 69-70, 288 S.W.2d 791, 792. Search warrants, on the other hand, are required by the Fourth Amendment 'notwithstanding facts unquestionably showing probable cause.' Agnello v. United States, 1925, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145. The Court does not strike down this complaint directly on the Fourth Amendment, but merely on an extension of Rule 4. It is unfortunate that through this byplay the constitutional limitations surrounding search and seizure are extended to the long-recognized powers of arrest.

Until petitioner came here he in no way attacked the complaint on the ground that it 'recited no more than the elements of the crime charged.' The Court admits as much. See footnote 2 in the majority opinion. Nevertheless, in the face of this admission and without either of the parties depending on Rule 4, much less briefing and arguing it, the Court strikes down this conviction on that ground. In the same breath it tags as 'belated' and refuses on that account to pass on the unanswerable position of the Government, which was fully briefed and argued, that the arrest may be upheld under state law, United States v. Di Re, 1948, 332 U.S. 581, 589, 68 S.Ct. 222, 226, 92 L.Ed. 210, as one on probable cause without a warrant. United States v. Rabinowitz, 1950, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653. I cannot subscribe to such a double standard. I ask, how in fairness can the Court consider and decide the case on a point not relied on below by petitioner and at the same time throw out the Government's claim as belated? And particularly so since the Court of Appeals recognized that claim in this language:

'Moreover, there was enough in the record to make it clear     that an honest official might well have thought he was fully      observing the legal restraints placed upon his actions, and      that he had good cause for arrest even if the warrant already      obtained was invalid since he believed he saw a felony being      committed in his presence *  *  * .' (Emphasis added.) 241 F.2d      575, 579.

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