Vale v. Louisiana/Dissent Black

Mr. Justice BLACK, with whom THE CHIEF JUSTICE joins, dissenting.

The Fourth Amendment to the United States Constitution prohibits only 'unreasonable searches.' A warrant has never been thought to be an absolute requirement for a constitutionally proper search. Searches, whether with or without a warrant, are to be judged by whether they are reasonable, and, as I said, speaking for the Court in Preston v. United States, 376 U.S. 364, 366-367, 84 S.Ct. 881, 882-883, 11 L.Ed.2d 777 (1964), common sense dictates that reasonableness varies with the circumstances of the search. See, e.g., Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The Louisiana Supreme Court held not only that the police action here was reasonable but also that failure to conduct an immediate search would have been unreasonable. 252 La. 1056, 1070, 215 So.2d 811, 816. With that view I am in complete agreement, for the following reasons.

The police, having warrants for Vale's arrest, were watching his mother's house from a short distance away. Not long after they began their vigil a car arrived, sounded its horn, and backed into a parking space near the house. The driver did not get out, but instead honked the car horn again. Vale, who had been arrested twice the month before and against whom an indictment for a narcotics offense was then pending, came out of his mother's house and talked to the driver of the car. At the conclusion of the conversation Vale looked both ways, up and down the street, and then went back inside the house. When he reappeared he stopped before going to the car and stood, as one of the officers testified, '(l)ooking back and forth like to see who might be coming or who was in the neighborhood.' He then walked to the car and leaned in.

From this behavior the officers were convinced that a narcotics transaction was taking place at that very moment. They drove down the street toward Vale and the parked car. When they came within a few car lengths of the two men Vale saw them and began to walk quickly back toward the house. At the same time the driver of the car attempted to pull away. The police brought both parties to the transaction to a stop. They then saw that the driver of the car was one Saucier, a known narcotics addict. He hurriedly placed something in his mouth, and apparently swallowed it. The police placed both Vale and Saucier under arrest.

At this point the police had probable cause to believe that Vale was engaged in a narcotics transfer, and that a supply of narcotics would be found in the house, to which Vale had returned after his first conversation, from which he had emerged furtively bearing what the police could readily deduce was a supply of narcotics, and toward which he hurried after seeing the police. But the police did not know then who else might be in the house. Vale's arrest took place near the house, and anyone observing from inside would surely have been alerted to destroy the stocks of contraband which the police believed Vale had left there. The police had already seen Saucier, the narcotics addict, apparently swallow what Vale had given him. Believing that some evidence had already been destroyed and that other evidence might well be, the police were faced with the choice of risking the immediate destruction of evidence or entering the house and conducting a search. I cannot say that their decision to search was unreasonable. Delay in order to obtain a warrant would have given an accomplice just the time he needed.

That the arresting officers did, in fact, believe that others might be in the house is attested to by their actions upon entering the door left open by Vale. The police at once checked the small house to determine if anyone else was present. Just as they discovered the house was empty, however, Vale's mother and brother arrived. Now what had been a suspicion became a certainty: Vale's relatives were in possession and knew of his arrest. To have abandoned the search at this point, and left the house with Vale, would not have been the action of reasonable police officers. As Mr. Justice White said, dissenting in Chimel v. California, 395 U.S. 752, 775, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969):

'For the police to search the house while the evidence they     had probable cause to search out and seize was still there      cannot be considered unreasonable.'

In my view, whether a search incident to a lawful arrest is reasonable should still be determined by the facts and circumstances of each case. Ker v. California, 374 U.S. 23, 34-36, 83 S.Ct. 1623, 1630-1631, 10 L.Ed.2d 726 (1963); United States v. Rabinowitz, 339 U.S. 56, 63-64, 70 S.Ct. 430, 434, 94 L.Ed. 653 (1950). For the reasons given above I am convinced that the search here was reasonable, even though Vale had not yet crossed the threshold of the house toward which he was headed.

Moreover, the circumstances here were sufficiently exceptional to justify a search, even if the search was not strictly 'incidental' to an arrest. The Court recognizes that searches to prevent the destruction or removal of evidence have long been held reasonable by this Court. Preston v. United States, supra; McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Whether the 'exceptional circumstances' justifying such a search exist or not is a question that may be, as it is here, quite distinct from whether or not the search was incident to a valid arrest. See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed.2d 436 (1948). It is thus unnecessary to determine whether the search was valid as incident to the arrest under either Chimel v. United States, supra, or under the pre-Chimel standard as interpreted in Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). It is only necessary to find that, given Vale's arrest in a spot readily visible to anyone in the house and the probable existence of narcotics inside, it was reasonable for the police to conduct an immediate search of the premises.

The Court, however, finds the search here unreasonable. First, the Court suggests that the contraband was not 'in the process of destruction.' None of the cases cited by the Court supports the proposition that 'exceptional circumstances' exist only when the process of destruction has already begun. On the contrary we implied that those circumstances did exist when 'evidence or contraband was threatened with removal or destruction.' Johnson v. United States, supra, 333 U.S. at 15, 68 S.Ct. at 369 (emphasis added). See also Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 779, 5 L.Ed.2d 828 (1961); Hernandez v. United States, 353 F.2d 624 (C.A.9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2d 1021 (1966).

Second, the Court seems to argue that the search was unreasonable because the police officers had time to obtain a warrant. I agree that the opportunity to obtain a warrant is one of the factors to be weighed in determining reasonableness. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); United States v. Rabinowitz, supra, 339 U.S. at 66, 70 S.Ct. at 435 (Black, J., dissenting). But the record conclusively shows that there was no such opportunity here. As I noted above, once the officers had observed Vale's conduct in front of the house they had probable cause to believe that a felony had been committed and that immediate action was necessary. At no time after the events in from of Mrs. Vale's house would it have been prudent for the officers to leave the house in order to secure a warrant.

The Court asserts, however, that because the police obtained two warrants for Vale's arrest there is 'no reason * *  * to suppose that it was impracticable for them to obtain a search warrant as well.' The difficulty is that the two arrest warrants on which the Court seems to rely so heavily were not issued because of any present misconduct of Vale's; they were issued because the bond had been increased for an earlier narcotics charge then pending against Vale. When the police came to arrest Vale, they knew only that his bond had been increased. There is nothing in the record to indicate that, absent the increased bond, there would have been probable cause for an arrest, much less a search. Probable cause for the search arose for the first time when the police observed the activity of Vale and Saucier in and around the house.

I do not suggest that all arrests necessarily provide the basis for a search of the arrestee's house. In this case there is far more than a mere street arrest. The police also observed Vale's use of the house as a base of operations for his commercial business, his attempt to return hurriedly to the house on seeing the officers, and the apparent destruction of evidence by the man with whom Vale was dealing. Furthermore the police arrival and Vale's arrest were plainly visible to anyone within the house, and the police had every reason to believe that someone in the house was likely to destroy the contraband if the search were postponed.

This case raises most graphically the question how does a policeman protect evidence necessary to the State if he must leave the premises to get a warrant, allowing the evidence he seeks to be destroyed. The Court's answer to that question makes unnecessarily difficult the conviction of those who prey upon society.