McDonald v. United States (335 U.S. 451)/Dissent Burton

Mr. Justice BURTON, with whom The CHIEF JUSTICE and Mr. Justice REED join, dissenting.

In our opinion the judgment should have been affirmed. This is a case of a lawful arrest followed by a seizure of the instruments of the crime which then were in plain sight. There was no search. There is, therefore, no issue as to the need for a search warrant. In regard to the arrest, the only issue is as to the need for a warrant of arrest to make it lawful. For the reasons stated below, we believe the arrest for the crime committed in the presence of the officers was clearly lawful without the issuance of a formal warrant for it. At the time of the raid, there were sufficient grounds to justify the police in suspecting that the unlawful lottery, which later proved to be in operation, was in progress within the building which had been under surveillance. A 'numbers game,' such as was there conducted, is a form of lottery generally regarded as detrimental to the communities where it flourishes. It is highly profitable to its principals at the expense of its players. Yet it is so simple in operation that its headquarters are readily movable. Accordingly, it requires substantial police effort to stop such unlawful operations at their source. It is difficult to locate the principals and it is still more difficult to secure proof suffi ient to convict them unless they are arrested in the midst of one of the comparatively brief periodical sessions when the essential computations for the operation of the lottery are being made. Such sessions are held when the operators determine the day's winners and arrange for the distribution among those winners of their respective shares of the cash which has been collected through a network of writers, collectors and runners.

Under the circumstances, a prompt entry by the police was justified when they reasonably suspected that the crime of operating a numbers lottery was being committed at that moment. The petitioners, as tenants or occupants of a room, had no right to object to the presence of officers in the hall of the rooming house. The actual observance by the police of the commission of the suspected crime thereupon justified their immediate arrest of those engaged in it without securing a warrant for such arrest.

This case is primarily an instance where the police succeeded in surprising the petitioners in the midst of the unlawful operations which the police suspected were being carried on periodically by McDonald as a principal operator and by others at the place in question. It is generally not a violation of any constitutional privilege of the accused for a police officer to arrest such accused without a warrant of arrest if the arrest is made at the very moment when the accused is engaged in a violation of law in the presence of the officer. It is generally not a violation of any constitutional privilege of such accused for the arresting officer thereupon to seize at least the articles then in plain sight and which have been seen by the officer to have been used in the commission of the crime for which the accused is being arrested. We see no adequate reason for a distinction in favor of the accused here. In this case there was no search for the seized property because its presence was obvious. Also, there was no seizure of anything other than the articles which the arresting officer saw in use in some material connection with the crime which the accused committed in the officer's presence. It, therefore, was not a violation of the constitutional rights of the accused to permit such seized articles to be presented in evidence in securing their convictions of the crimes which they were charged with committing in the presence of the arresting officer.