Ker v. California/Concurrence-dissent Brennan

Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice GOLDBERG join.

I join Part I of Mr. Justice CLARK's opinion and the holding therein that 'as we said in Mapp * *  * the Fourth Amendment 'is enforceable against *  *  * (the States) by the same sanction of exclusion as is used against the Federal Government,' by the application of the same constitutional standard prohibiting 'unreasonable searches and seizures." Only our Brother HARLAN dissents from that holding; he would judge state searches and seizures 'by the more flexible concept of 'fundamental' fairness, of rights 'basic to a free society,' embraced in the Due Process Clause of the Fourteenth Amendment.'

However, Mr. Justice CLARK, Mr. Justice BLACK, Mr. Justice STEWART and Mr. Justice WHITE do not believe that the federal requirement of reasonableness contained in the Fourth Amendment was violated in this case. THE CHIEF JUSTICE, Mr. Justice DOUGLAS, Mr. Justice GOLDBERG and I have the contrary view. For even on the premise that there was probable cause by federal standards for the arrest of George Ker, the arrests of these petitioners were nevertheless illegal, because the unannounced intrusion of the arresting officers into their apartment violated the Fourth Amendment. Since the arrests were illegal, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 7 L.Ed.2d 1081, requires the exclusion of the evidence which was the product of the search incident to those arrests.

Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers' authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.

It was firmly established long before the adoption of the Bill of Rights that the fundamental liberty of the individual includes protection against unannounced police entries. '(T)he Fourth Amendment did but embody a principle of English liberty, a principle old, yet newly won, that finds another expression in the maxim 'every man's home is his castle." Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361, 365 (1921); Frank v. Maryland, 359 U.S. 360, 376-382, 79 S.Ct. 804, 813-817, 3 L.Ed.2d 877 (dissenting opinion). As early as Semayne's Case, 5 Co.Rep. 91a, 91b, 77 Eng.Rep. 194, 195 (1603), it was declared that '(i)n all cases when the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K(ing)'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors * *  * .' (Emphasis supplied.) Over a century later the leading commentators upon the English criminal law affirmed the continuing vitality of that principle. 1 Hale, Pleas of the Crown (1736), 583; see also 2 Hawkins, Pleas of the Crown (6th ed. 1787), c. 14, § 1; Foster, Crown Law (1762), 320-321. Perhaps its most emphatic confirmation was supplied only 35 years before the ratification of the Bill of Rights. In Curtis' Case, Fost. 135, 168 Eng.Rep. 67, decided in 1756, the defendant, on trial for the murder of a Crown officer who was attempting an entry to serve an arrest warrant, pleaded that because the officer had failed adequately to announce himself and his mission before breaking the doors, forceful resistance to his entry was justified and the killing was therefore justifiable homicide. In recognizing the defense the court repeated the principle that 'peace-officers, having a legal warrant to arrest for a breach of the peace, may break open doors, after having demanded admittance and given due notice of their warrant'; the court continued that 'no precise form of words is required in a case of this kind' because '(i)t is sufficient that the party hath notice, that the officer cometh not as a mere trespasser, but claiming to act under a proper authority * *  * .' Fost., at 136 137, 168 Eng.Rep., at 68. (Emphasis supplied.) The principle was again confirmed not long after the Fourth Amendment became part of our Constitution. Abbott, C.J., said in Launock v. Brown, 2 B. & Ald. 592, 593-594, 106 Eng.Rep. 482, 483 (1819):

' * *  * I am clearly of opinion that, in the case of a      misdemeanour, such previous demand is requisite *  *  *. It is     reasonable that the law should be so; for if no previous demand is made, how is it possible for a party to      know what the object of the person breaking open the door may      be? He has a right to consider it as an aggression on his     private property, which he will be justified in resisting to      the utmost.'

The protections of individual freedom carried into the Fourth Amendment, Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, undoubtedly included this firmly established requirement of an announcement by police officers of purpose and authority before breaking into an individual's home. The requirement is no mere procedural nicety or formality attendant upon the service of a warrant. Decisions in both the federal and state courts have recognized, as did the English courts, that the requirement is of the essence of the substantive protections which safeguard individual liberty. The Court of Appeals for the District of Columbia Circuit has said:

' * *  * there is no division of opinion among the learned      authors *  *  * that even where an officer may have power to break open a door without a warrant, he cannot      lawfully do so unless he first notifies the occupants as to      the purpose of his demand for entry.' Accarino v. United      States, 85 U.S.App.D.C. 394, 400, 179 F.2d 456, 462. Similarly, the Supreme Judicial Court of Massachusetts     declared in 1852:

'The maxim of law that every man's house is his castle * *  *      has not the effect to restrain an officer of the law from      breaking and entering a dwelling-house for the purpose of      serving a criminal process upon the occupant. In such case     the house of the party is no sanctuary for him, and the same      may be forcibly entered by such officer after a proper      notification of the purpose of the entry, and a demand upon      the inmates to open the house, and a refusal by them to do      so.' Barnard v. Bartlett, 10 Cush. (Mass.) 501, 502-503; cf. State v. Smith, 1 N.H. 346.

Courts of the frontier States also enforced the requirement. For example, Tennessee's high court recognized that a police officer might break into a home to serve an arrest warrant only 'after, demand for admittance and notice of his purpose,' McCaslin v. McCord, 116 Tenn. 690, 708, 94 S.W. 79, 83 ; cf. Hawkins v. Commonwealth, 14 B.Mon. (53 Ky.) 395. Indeed, a majority of the States have enacted the requirement in statutes substantially similar to California Penal Code § 844 and the federal statute, 18 U.S.C. § 3109.

Moreover, in addition to carrying forward the protections already afforded by English law, the Framers also meant by the Fourth Amendment to eliminate once and for all the odious practice of searches under general warrants and writs of assistance against which English law had generally left them helpless. The colonial experience under the writs was unmistakably 'fresh in the memories of those who achieved our independence and established our form of government.' Boyd v. United States, supra, 116 U.S., at 625, 6 S.Ct., at 529, 29 L.Ed. 746. The problem of entry under a general warrant was not, of course, exactly that of unannounced intrusion to arrest with a warrant or upon probable cause, but the two practices clearly invited common abuses. One of the grounds of James Otis' eloquent indictment of the writs bears repetition here:

'Now one of the most essential branches of English liberty is     the freedom of one's house. A man's house is his castle; and     whilst he is quiet he is as well guarded as a prince in his castle. This writ, if it should be     declared legal, would totally annihilate this privilege. Customhouse officers may enter our houses when they please;     we are commanded to permit their entry. Their menial servants     may enter, may break locks, bars, and everything in their      way: and whether they break through malice or revenge, no      man, no court, can inquire. Bare suspicion without oath is     sufficient.' Tudor, Life of James Otis (1823), 66-67.

Similar, if not the same, dangers to individual liberty are involved in unannounced intrusions of the police into the homes of citizens. Indeed in two respects such intrusions are even more offensive to the sanctity and privacy of the home. In the first place service of the general warrants and writs of assistance was usually preceded at least by some form of notice or demand for admission. In the second place the writs of assistance by their very terms might be served only during daylight hours. By significant contrast, the unannounced entry of the Ker apartment occurred after dark, and such timing appears to be common police practice, at least in California.

It is much too late in the day to deny that a lawful entry is as essential to vindication of the protections of the Fourth Amendment as, for example, probable cause to arrest or a search warrant for a search not incidental to an arrest. This Court settled in Gouled v. United States, 255 U.S. 298, 305-306, 41 S.Ct. 261, 263, 65 L.Ed. 647, that a lawful entry is the indispensable predicate of a reasonable search. We held there that a search would violate the Fourth Amendment if the entry were illegal whether accomplished 'by force or by an illegal threat or show of force' or 'obtained by stealth instead of by force or coercion.' Similarly, rigid restrictions upon unannounced entries are essential if the Fourth Amendment's prohibition against invasion of the security and privacy of the home is to have any meaning.

It is true, of course, that the only decision of this Court which forbids federal officers to arrest and search after an unannounced entry, Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, did not rest upon constitutional doctrine but rather upon an exercise of this Court's supervisory powers. But that disposition in no way implied that the same result was not compelled by the Fourth Amendment. Miller is simply an instance of the usual practice of the Court not to decide constitutional questions when a nonconstitutional basis for decision is available. See International Assn. of Machinists v. Street, 367 U.S. 740, 749-750, 81 S.Ct. 1784, 1789-1790, 6 L.Ed.2d 1141. The result there drew upon analogy to a federal statute, similar in its terms to § 844, with which the federal officers concededly had not complied in entering to make an arrest. Nothing we said in Miller so much as intimated that, without such a basis for decision, the Fourth Amendment would not have required the same result. The implication, indeed, is quite to the conary. For the history adduced in Miller in support of the nonconstitutional ground persuasively demonstrates that the Fourth Amendment's protections include the security of the householder against unannounced invasions by the police.

The command of the Fourth Amendment reflects the lesson of history that 'the breaking an outer door is, in general, so violent, obnoxious and dangerous a proceeding, that it should be adopted only in extreme cases, where an immediate arrest is requisite.' 1 Burn, Justice of the Peace (28th ed. 1837), 275-276.

I have found no English decision which clearly recognizes any exception to the requirement that the police first give notice of their authority and purpose before forcibly entering a home: Exceptions were early sanctioned in American cases, e.g., Read v. Case, 4 Conn. 166, but these were rigidly and narrowly confined to situations not within the reason and spirit of the general requirement. Specifically, exceptional circumstances have been thought to exist only when, as one element, the facts surrounding the particular entry support a finding that those within actually knew or must have known of the officer's presence and purpose to seek admission. Cf. Miller v. United States, supra, 357 U.S., at 311-313, 78 S.Ct., at 1196-1198, 2 L.Ed.2d 1332. For example, the earliest exception seems to have been that '(i)n the case of an escape after arrest, the officer, on fresh pursuit of the offender to a house in which he takes refuge, may break the doors to recapture him, in the case of felony, without a warrant, and without notice or demand for admission to the house of the offender.' Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 804 (1924). The rationale of such an exception is clear, and serves to underscore the consistency and the purpose of the general requirement of notice: Where such circumstances as an escape and hot pursuit by the arresting officer leave no doubt that the fleeing felon is aware of the officer's presence and purpose, pausing at the threshold to make the ordinarily requisite announcement and demand would be a superfluous act which the law does not require. But no exceptions have heretofore permitted unannounced entries in the absence of such awareness on the part of the occupants-unless possibly where the officers are justified in the belief that someone within is in immediate danger of bodily harm.

Two reasons rooted in the Constitution clearly compel the courts to refuse to recognize exceptions in other situations when there is no showing that those within were or had been made aware of the officers' presence. The first is that any exception not requiring a showing of such awareness necessarily implies a rejection of the inviolable presumption of innocence. The excuse for failing to knock or announce the officer's mission where the occupants are oblivious to his presence can only be an almost automatic assumption that the suspect within will resist the officer's attempt to enter peacefully, or will frustrate the arrest by an attempt to escape, or will attempt to destroy whatever possibly incriminating evidence he may have. Such assumptions do obvious violence to the presumption of innocence. Indeed, the violence is compounded by another assumption, also necessarily involved, that a suspect to whom the officer first makes known his presence will further violate the law. It need hardly be said that not every suspect is in fact guilty of the offense of which he is suspected, and that not everyone who is in fact guilty will forcibly resist arrest or attempt to escape or destroy evidence.

The second reason is that in the absence of a showing of awareness by the occupants of the officers' presence and purpose, 'loud noises' or 'running' within would amount, ordinarily, at least, only to ambiguous conduct. Our decisions in related contexts have held that ambiguous conduct cannot form the basis for a belief of the officers that an escape or the destruction of evidence is being attempted. Wong Sun v. United States, 371 U.S. 471, 483-484, 83 S.Ct. 407, 415-416, 9 L.Ed.2d 441; Miller v. United States, supra, 357 U.S., at 311, 78 S.Ct., at 1196-1197, 2 L.Ed.2d 1332.

Beyond these constitutional considerations, practical hazards of law enforcement militate strongly against any relaxation of the requirement of awareness. First, cases of mistaken identity are surely not novel in the investigation of crime. The possibility is very real that the police may be misinformed as to the name or address of a suspect, or as to other material information. That possibility is itself a good reason for holding a tight rein against judicial approval of unannounced police entries into private homes. Innocent citizens should not suffer the shock, fright or embarrassment attendant upon an unannounced police intrusion. Second, the requirement of awareness also serves to minimize the hazards of the officers' dangerous calling. We expressly recognized in Miller v. United States, supra, 357 U.S., at 313, n. 12, 78 S.Ct., at 1198, 2 L.Ed.2d 1332, that compliance with the federal notice statute 'is also a safeguard for the police themselves who might be mistaken for prowlers and be shot down by a fearful householder.' Indeed, one of the principal objectives of the English requirement of announcement of authority and purpose was to protect the arresting officers from being shot as trespassers, ' *  *  * for if no previous demand is made, how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the utmost.' Launock v. Brown, 2 B. & Ald. 592, 594, 106 Eng.Rep. 482, 483 (1819).

These compelling considerations underlie the constitutional barrier against recognition of exceptions not predicated on knowledge or awareness of the officers' presence. State and federal officers have the common obligation to respect this basic constitutional limitation upon their police activities. I reject the contention that the courts, in enforcing such respect on the part of all officers, state or federal, create serious obstacles to effective law enforcement. Federal officers have operated for five years under the Miller rule with no discernible impairment of their ability to make effective arrests and obtain important narcotics convictions. Even if it were true that state and city police are generally less experienced or less resourceful than their federal counterparts (and the experience of the very police force involved in this case, under California's general exclusionary rule adopted judicially in 1955, goes very far toward refuting any such suggestion, see Elkins v. United States, 364 U.S. 206, 220-221, 80 S.Ct. 1437, 1445-1446, 4 L.Ed.2d 1669), the Fourth Amendment's protections against unlawful search and seizure do not contract or expand depending upon the relative experience and resourcefulness of different groups of law-enforcement officers. When we declared in Mapp that, because the rights of the Fourth Amendment were of no lesser dignity than those of the other liberties of the Bill of Rights absorbed in the Fourteenth, ' * *  * we can no longer permit (them) to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend (their) enjoyment,' 367 U.S., at 660, 81 S.Ct., at 1694, 6 L.Ed.2d 1081-I thought by these words we had laid to rest the very problems of constitutional dissonance which I fear the present case so soon revives.

I turn now to my reasons for believing that the arrests of these petitioners were illegal. My Brother CLARK apparently recognizes that the element of the Kers' prior awareness of the officers' presence was essential, or at least highly relevant, to the validity of the officers' unannounced entry into the Ker apartment, for he says 'Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police.' (Emphasis supplied.) But the test under the 'fresh pursuit' exception which my Brother CLARK apparently seeks to invoke depends not, of course, upon mere conjecture whether those within 'might well have been' expecting the police, but upon whether there is evidence which shows that the occupants were in fact aware that the police were about to visit them. That the Kers were wholly obvious to the officers' presence is the only possible inference on the uncontradicted facts; the 'fresh pursuit' exception is therefore clearly unavailable. When the officers let themselves in with the passkey, 'proceeding quietly,' as my Brother CLARK says, George Ker was sitting in his living room reading a newspaper, and his wife was busy in the kitchen. The marijuana, moreover, was in full view on the top of the kitchen sink. More convincing evidence of the complete unawareness of an imminent police visit can hardly be imagined. Indeed, even the conjecture that the Kers 'might well have been expecting the police' has no support in the record. That conjecture is made to rest entirely upon the unexplained U-turn made by Ker's car when the officers lost him after the rendezvous at the oil fields. But surely the U-turn must be disregarded as wholly ambiguous conduct; there is absolutely no proof that the driver of the Ker car knew that the officers were following it. Cf. Miller v. United States, supra, 357 U.S., at 311, 75 S.Ct., at 1196-1197, 2 L.Ed.2d 1332; Wong Sun v. United States, supra, 371 U.S., at 483-484, 83 S.Ct., at 415-416, 9 L.Ed.2d 441.

My Brother CLARK invokes chiefly, however, the exception allowing an unannounced entry when officers have reason to believe that someone within is attempting to destroy evidence. But the minimal conditions for the application of that exception are not present in this case. On the uncontradicted record, not only were the Kers completely unaware of the officers' presence, but, again on the uncontradicted record, there was absolutely no activity within the apartment to justify the officers in the belief that anyone within was attempting to destroy evidence. Plainly enough, the Kers left the marijuana in full view on top of the sink because they were wholly oblivious that the police were on their trial. My Brother CLARK recognizes that there is no evidence whatever of activity in the apartment, and is thus forced to find the requisite support for this element of the exception in the officers' testimony that, in their experience in the investigation of narcotics violations, other narcotics suspects had responded to police announcements by attempting to destroy evidence. Clearly such a basis for the exception fails to meet the requirements of the Fourth Amendment; if police experience in pursuing other narcotics suspects justified an unannounced police intrusion into a home, the Fourth Amendment would afford no protection at all.

The recognition of exceptions to great principles always creates, of course, the hazard that the exceptions will devour the rule. If mere police experience that some offenders have attempted to destroy contraband justifies unannounced entry in any case, and cures the total absence of evidence not only of awareness of the officers' presence but even of such an attempt in the particular case, I perceive no logical basis for distinguishing unannounced police entries into homes to make arrests for any crime involving evidence of a kind which police experience indicates might be quickly destroyed or jettisoned. Moreover, if such experience, without more, completely excuses the failure of arresting officers before entry, at any hour of the day or night, either to announce their purpose at the threshold or to ascertain that the occupant already knows of their presence, then there is likewise no logical ground for distinguishing between the stealthy manner in which the entry in this case was effected, and the more violent manner usually associated with totalitarian police of breaking down the door or smashing the lock.

My Brother CLARK correctly states that only when state law 'is not violative of the Federal Constitution' may we defer to state law in gauging the validity of an arrest under the Fourth Amendment. Since the California law of arrest here called in question patently violates the Fourth Amendment, that law cannot constitutionally provide the basis for affirming these convictions. This is not a case of conflicting testimony pro and con the existence of the elements requisite for finding a basis for the application of the exception. I agree that we should ordinarily be constrained to accept the state fact-finder's resolution of such factual conflicts. Here, however, the facts are uncontradicted: the Kers were comletely oblivious of the presence of the officers and were engaged in no activity of any kind indicating that they were attempting to destroy narcotics. Our duty then is only to decide whether the officers' testimony-that in their general experience narcotics suspects destroy evidence when forewarned of the officers' presence-satisfies the constitutional test for application of the exception. Manifestly we should hold that such testimony does not satisfy the constitutional test. The subjective judgment of the police officers cannot constitutionally be a substitute for what has always been considered a necessarily objective inquiry, namely, whether circumstances exist in the particular case which allow an unannounced police entry.

We have no occasion here to decide how many of the situations in which, by the exercise of our supervisory power over the conduct of federal officers, we would exclude evidence, are also situations which would require the exclusion of evidence from state criminal proceedings under the constitutional principles extended to the States by Mapp. But where the conduct effecting an arrest so clearly transgresses those rights guaranteed by the Fourth Amendment as does the conduct which brought about the arrest of these petitioners, we would surely reverse the judgment if this were a federal prosecution involving federal officers. Since our decision in Mapp has made the guarantees of the Fourteenth Amendment coextensive with those of the Fourth we should pronounce precisely the same judgment upon the conduct of these state officers.