Shipley v. California/Dissent White

Mr. Justice WHITE, dissenting.

I found inexplicable the Court's acceptance of the warrantless arrest in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, while at the same time holding the contemporaneous search invalid without considering the exigencies created by the arrest itself. See id., at 770, 89 S.Ct., at 2044 (dissenting opinion). Even more mystifying are the opinions and the orders issued in the instant case and six others which have been held pending the decision in Chimel: No. 837, Von Cleef v. New Jr sey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728; No. 1097, Misc., Harris v. Illinois, 395 U.S. 985, 89 S.Ct. 2137, 23 L.Ed.2d 774; No. 1037, Misc., Mahoney v. LaVallee, 395 U.S. 985, 89 S.Ct. 2137, 23 L.Ed.2d 774; No. 500, Schmear v. Gagnon, 395 U.S. 978, 89 S.Ct. 2125, 23 L.Ed.2d 767; No. 550, Misc., Jamison v. United States, 395 U.S. 986, 89 S.Ct. 2135, 23 L.Ed.2d 774; and No. 395, Misc., Chrisman v. California, 395 U.S. 985, 89 S.Ct. 2135, 23 L.Ed.2d 774. I fear that the summary dispositions in these cases, which strain so hard to avoid deciding the retroactivity of Chimel, will only magnify the confusion in this important area of the law.

It is particularly hard to square the Court's summary reversal of Shipley's conviction, which invalidates a warrantless search of a house where the arrest was made in a detached garage, with the denials of certiorari in Harris and Mahoney. In Harris, the arrest occurred in the lobby of a four-story apartment building; the ensuing search without a warrant involved an apartment on an upper floor. The chronology was reversed in Mahoney where petitioner was arrested in his apartment, but the accompanying search uncovered a gun in the building basement. This case, Shipley, purports to rest on pre-Chimel law, but certiorari in Harris and Mahoney cannot be denied without assuming the nonretroactivity of Chimel and then determining that these cases do not deserve the same summary reversal given to Shipley. In Schmear, Jamison, and Chrisman, as in Chimel, the Court fails to find a substantial issue in the warrantless arrest and its bearing on the warrantless search. Finally, the per curiam in Von Cleef invokes Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957), without noting that the seizures in Von Cleef were limited to evidence and instrumentalities of the crimes being investigated and for which the arrests were made.

I join the grant of certiorari in this case but dissent from the summaary reversal.