Wainwright v. City of New Orleans/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

If this case is to be decided by the traditional Fourth Amendment standards applicable prior to Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the question is whether a person who is unconstitutionally arrested must submit to a search of his person, or whether he may offer at least token resistance.

Police officers while cruising late one night saw petitioner standing on a street corner and concluded that he fitted the general description of a murder suspect. They accosted him and asked him to identify himself. He had no identification on his person, only at home. He gave the officers his name and address, and informed them that he was a law student. The officers told him he was being questioned because he fitted the description of a murder suspect who had on his left forearm a tattoo which read, 'born to raise hell.' The officers asked him to remove the coat he was wearing so they could check his forearm, but he refused. He was then 'seized' and taken to the police station, where he was asked to remove his jacket. He refused, folding his arms and crouching in a corner. The officers then attempted to take his jacket off, each pulling on one arm. There was no battle or fracas of any consequence. Petitioner, however, did resist this attempt by moving about and by pushing one officer to one side and then pushing the other officer to the other side. But so far as the record shows no more violence happened than that produced by the combined efforts of petitioner and the officers which caused the officers to be butted around the room. He did not strike at the officers, or kick them, and none of them had any marks or bruises or torn clothing.

I didn't see him. It wasn't visible to me.'

'Later, in answer to a question posed by the court, Martello stated that none of the four officers who removed petitioner's jacket suffered any 'marks, bruises, or torn clothing.'

On cross-examination Officer O'Rourke testified as follows:

'Q. How was he [petitioner] pushing you around? Did he strike out at someone?

'A. No. Like a football player going through a line.

'Q. Did he try to run?

'A. No, dancing from wall to wall.'

He was booked on three charges-vagrancy, resisting an officer, and reviling the police.

At the end of the State's case petitioner moved for dismissal of the charges. That ruling was held under advisement and petitioner was at once arraigned on three new charges, one of resisting an officer and two for disturbing the peace by assaulting an officer. The trial on this second case was had and petitioner fined $25 on each charge or given 30 days in jail on each charge, the sentences being suspended. On appeal the conviction of resisting an officer was reversed, but his conviction on two charges of disturbing the peace was affirmed by the Criminal District Court and later by the Supreme Court of Louisiana, the complaint in the first case apparently being abandoned. While petitioner tried to get the appellate courts to incorporate the record in the first case into the record in the second, that was not done. But that defect has been remedied here, the transcripts of all the hearings now being before the Court.

The records before us do not even approach establishing probable cause for arrest. The officers had no warrant. They did not see petitioner commit any crime. There was no arrest which could be justified under the heading of vagrancy. That could be made use of only by the factor of loitering, but petitioner was seen standing still for only five to 10 seconds. To be sure he did not have identification papers on him and 'very little funds.' But those factors obviously could not be ingredients of a crime under our present system of government. Cf. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654.

It is plain that the officers 'seized' petitioner to question him further concerning a murder. It is apparently on that ground that the Criminal District Court concluded that petitioner's arrest was 'legal.' But he was not arrested for murder or for any related offense, but only for vagrancy. The circumstances of this case show that the arrest was no more than arrest on suspicion, which of course was unconstitutional-at least prior to Terry v. State of Ohio-and robs the search of any color of legality. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134.

Under our authorities (cf. John Bad Elk v. United States, 177 U.S. 529, 534-535, 20 S.Ct. 729, 44 L.Ed.2d 874; and see United States v. Di Re, 332 U.S. 581, 594, 68 S.Ct. 222, 92 L.Ed. 210), at least prior to the ill-starred case of Terry v. State of Ohio, a citizen had the right to offer some resistance to an unconstitutional 'seizure' or 'search.' Must he now stand quietly and supinely while officers 'pat him down,' whirl him around, and throw him in the wagon?

The present episode may be an insignificant one and the hurt to petitioner nominal. But the principle that a citizen can defy an unconstitutional act is deep in our system. Thomas v. Collins, 323 U.S. 516, 532-537, 65 S.Ct. 315, 89 L.Ed. 430.

When in a recent case (Wright v. State of Georgia, 373 U.S. 284, 291-292, 83 S.Ct. 1240, 10 L.Ed.2d 349), it was said that 'failure to obey the command of a police officer constitutes a traditional form of breach of the peace,' we made a qualification: 'Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.'

We should not let those fences of the law be broken down.

This case points up vividly the dangers which emanate from the Court's decision in Terry v. State of Ohio, the so-called 'stop-and-frisk' case. If this case is to be decided by the new test of 'searches' and 'seizures' announced in that case, startling problems are presented. The officers here had no more than an unsubstantiated suspicion that petitioner was a murder suspect, a suspicion based only on a superficial resemblance between petitioner and the wanted man. Thus they had no right to 'seize' petitioner. Is the case dismissed as improvidently granted because the officers had 'reasonable suspicion' justifying the seizure, or reasonable grounds to believe that petitioner was armed and dangerous? These questions are not answered by the Court; and leaving them unanswered gives a new impetus to Terry v. State of Ohio. If this 'seizure' was constitutional, then the sleepless professor who walks in the night to find the relaxation for sleep is easy prey to the police, as are thousands of other innocent Americans raised in the sturdy environment where no policeman can lay a hand on the citizen without 'probable cause' that a crime has been or is about to be committed. That was the philosophy of Walt Whitman, Vachel Lindsay, and Carl Sandburg and it was faithfully reflected in our law.

The interest of society in apprehending murderers is obviously strong; yet when the manhunt is on, passions often carry the day. I fear the long and short of it is that an officer's 'seizure' of a person on the street, even though not made upon 'probable cause,' means that if the suspect resists the 'seizure,' he may then be taken to the police station for further inquisition. That is a terrifying spectacle-a person is plucked off the street and whisked to the police station for questioning and identification merely because he resembles the suspected perpetrator of a crime. I fear that with Terry and with Wainwright we have forsaken the Western tradition and taken a long step toward the oppressive police practices not only of Communist regimes but of modern Iran, 'democratic' Formosa, and Franco Spain, with which we are now even more closely allied.