Whiteley v. Warden, Wyoming State Penitentiary/Opinion of the Court

Petitioner Whiteley, in 1965, was convicted in the District Court for the Second Judicial District of the State of Wyoming on charges of breaking and entering and being an habitual criminal. Both at his arraignment and at trial Whiteley challenged the constitutionality of the use of evidence seized during a search incident to an arrest which he claimed was illegal. The trial court overruled petitioner's motion to suppress, and on appeal the Supreme Court of Wyoming affirmed. Whiteley v. State, 418 P.2d 164 (1966). This proceeding commenced with a petition for habeas corpus in the United States District Court for the District of Wyoming, which was denied on November 25, 1968. Whiteley v. Wyoming, 293 F.Supp. 381. On appeal, the United States Court of Appeals for the Tenth Circuit affirmed. Whiteley v. Meacham, 416 F.2d 36 (1969). We granted certiorari, limiting the writ to the issue of the constitutionality of the arrest and ensuing search and seizure. 397 U.S. 1062, 90 S.Ct. 1505, 25 L.Ed.2d 683 (1970). We reverse the judgment of the Tenth Circuit for the reasons stated herein.

* The circumstances surrounding petitioner's arrest and the incidental search and seizure, as stated by the Wyoming Supreme Court, 418 P.2d 164, 165-166, are as follows:

'On November 23, 1964, certain business establishments in     Saratoga were broken into, including the Rustic Bar and      Shively's Hardware, the offenses being investigated by the      Carbon County Sheriff, (Sheriff Ogburn) who, acting on a tip,      the next day signed a complaint charging defendant and      another with breaking and entering the building identified as the Rustic Bar. This complaint was made before a justice     of the peace at approximately 11:30 a.m. on the 24th, and a      warrant issued. After the investigation, the sheriff put out     a state item on the radio to pick up two suspects of the      breaking and entering, defendant and another. The message     went to the network at Casper and was transmitted over the      State, received by the Albany County Sheriff's Office and      communicated to the Laramie Police Department, the message      giving names and descriptions of the two persons and advising      the type of car probably being driven and the amount of money      taken, including certain old coins with the dates. Late at     night on November 24, a Laramie patrolman, in reliance on the      information in the radio item, arrested the defendant and his      companion. At the time, the patrolman had no warrant for     defendant's arrest nor search warrant. The officer together     with a deputy sheriff, who had come up in the meantime,      searched the car and removed a number of items introduced in      evidence, including tools and old coins, identified at the      trial as taken from Shively's Hardware. * *  * '

Sheriff Ogburn's complaint, which provided the basis for the arrest warrant issued by the justice of the peace, is as follows:

'I, C. W. Ogburn, do solemnly swear that on or about the 23     day of November, A.D. 1964, in the County of Carbon and State      of Wyoming, the said Harold Whiteley and Jack Daley,      defendants did then and there unlawfully break and enter a      locked and sealed building (describing the location and      ownership of the building).' App. 28.

A state item 881, the bulletin which Sheriff Ogburn put out on the radio and which led to petitioner's arrest and search by the Laramie patrolman, is as follows:

'P & H for B & E Saratoga, early A.M. 11-24-64. Subj. #1.     Jack Daley, WMA, 38, D.O.B. 2-29-(26), 5 10, 175, med. build, med. comp., blonde and blue. Tat. left shoulder: 'Love     Me or Leave Me.' #2. Harold Whitley, WMA, 43, D.O.B. 6-22-21,     5 11, 180, med. build, fair comp. brown eyes. Tat. on right     arm 'Bird.' Poss. driving 1953 or 1954 Buick, light green     bottom, dark top. Wyo. lic. 2-bal. unknown. Taken: $281.71 in     small change, numerous old coins ranging from .5¢ pieces to      silver dollars, dated from 1853 to 1908. Warrant issues, will     extradite. Special attention Denver. * *  * ' App. 31.

The decisions of this Court concerning Fourth Amendment probable-cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In the instant case-so far as the record stipulated to by the parties reveals -the sole support for the arrest warrant issued at Sheriff Ogburn's request was the complaint reproduced above. That complaint consists of nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense described in the complaint. The actual basis for Sheriff Ogburn's conclusion was an informer's tip, but that fact, as well as every other operative fact, is omitted from the complaint. Under the case just cited, that document alone could not support the independent judgment of a disinterested magistrate.

The State, however, contends that regardless of the sufficiency of the complaint to support the arrest warrant, the Laramie police officer who actually made the arrest possessed sufficient factual information to support a finding of probable cause for arrest without a warrant. In support of this proposition, the State argues that a reviewing court should employ less stringent standards for reviewing a police officer's assessment of probable cause as a prelude to a warrantless arrest than the court would employ in reviewing a magistrate's assessment as a prelude to issuing an arrest or search warrant. That proposition has been consistently rejected by this Court. United States v. Ventresca, 380 U.S., at 105-109, 85 S.Ct., at 746; Aguilar v. Texas, 378 U.S., at 110-111, 84 S.Ct., at 1511-1512; Jones v. United States, 362 U.S., at 270-271, 80 S.Ct., at 735-736. And the reason for its rejection is both fundamental and obvious: less stringent standards for reviewing the officer's discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual basis supporting the officer's probable-cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate's assessment. See McCray v. Illinois, 386 U.S. 300, 304-305, 87 S.Ct. 1056, 1058 1059, 18 L.Ed.2d 62 (1967).

Applying those standards to the instant case, the information possessed by the Laramie police officer at the time of arrest and search consisted of: (1) the data contained in state bulletin 881, reproduced supra; (2) the knowledge, obtained by personal observation, that two men were driving a car matching the car described in the radio bulletin; (3) the knowledge, possessed by one of the arresting officers, that one of the people in the car was Jack Daley, App. 71; (4) the knowledge, acquired by personal observation, that the other individual in the car fitted the description of Whiteley contained in state bulletin 881; and (5) the knowledge, acquired by the officer after stopping Whiteley, that he had given a false name.

This Court has held that where the initial impetus for an arrest is an informer's tip, information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). But the additional information acquired by the arresting officers must in some sense be corroborative of the informer's tip that the arrestees committed the felony or, as in Draper itself, were in the process of committing the felony. See the opinions of the Court and that of Mr. Justice White concurring in Spinelli v. United States, supra, and p. 423, 89 S.Ct. p. 592. In the present case, the very most the additional information tended to establish is that either Sheriff Ogburn, or his informant, or both of them, knew Daley and Whiteley and the kind of car they drove; the record is devoid of any information at any stage of the proceeding from the time of the burglary to the event of the arrest and search that would support either the reliability of the informant or the informant's conclusion that these men were connected with the crime. Spinelli v. United States, supra; McCray v. Illinois, supra; Aguilar v. Texas, supra.

The State, however, offers one further argument in support of the legality of the arrest and search: the Laramie police relied on the radio bulletin in making the arrest, and not on Sheriff Ogburn's unnamed informant. Clearly, it is said, they had probable cause for believing that the passengers in the car were the men described in the bulletin, and, in acting on the bulletin, they reasonably assumed that whoever authorized the bulletin had probable cause to direct Whiteley's and Daley's arrest. To prevent arresting officers from acting on the assumption that fellow officers who call upon them to make an arrest have probable cause for believing the arrestees are prepetrators of a crime would, it is argued, unduly hamper law enforcement.

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.

In sum, the complaint on which the warrant issued here clearly could not support a finding of probable cause by the issuing magistrate. The arresting officer was not himself possessed of any factual data tending to corroborate the informer's tip that Daley and Whiteley committed the crime. Therefore, petitioner's arrest violated his constitutional rights under the Fourth and Fourteenth Amendments; the evidence secured as an incident thereto should have been excluded from his trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

There remains the question as to the proper disposition of this case. The State urges us to remand so that it will have an opportunity to develop a record which might show that the issuing magistrate had factual information additional to that presented in Sheriff Ogburn's complaint. Brief for Respondent 8-9. Yet the State concedes, as on the record it must, that at every stage in the proceedings below petitioner argued the insufficiency of the warrant as well as the lack of probable cause at the time of the arrest. Brief for Respondent 4. Knowing the basis for petitioner's constitutional claim, the State chose to try those proceedings on the record it had developed in the state courts. See n. 4, supra. Its sole explanation for this state of affairs is that 'the state has felt, based on precedent and logic, that no court would accept the legal reasoning of petitioner.' Brief for Respondent 9. In the circumstances of this case, that justification, as we have shown, is untenable.

Pursuant to our authority under 28 U.S.C. § 2106 to make such disposition of the case 'as may be just under the circumstances,' we reverse the judgment of the Tenth Circuit and remand with directions that the writ is to issue unless the State makes appropriate arrangements to retry petitioner. Cf. Giordenello v. United States, 357 U.S., at 487-488, 78 S.Ct., at 1250-1251.

It is so ordered.

Reversed and remanded with directions.

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