Wilson v. Schnettler/Dissent Douglas

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BRENNAN concur, dissenting.

The trial judge on respondents' motion dismissed an 'amended petition for declaratory judgment' that made the following allegations: Petitioner was arrested by two of the respondents, agents of the Federal Bureau of Narcotics, who acted without a warrant. He was searched by these agents at the time of his arrest and narcotics were seized from him. Though imprisoned, he was neither taken before a Federal Commissioner nor charged with a crime against the United States. Instead, he was indicted for the possession of those same narcotics under the laws of Illinois. He unsuccessfully attempted to exclude the use of these narcotics as evidence or the testimony of the arresting agents by a motion made in the state court where 'the law of the forum was applied and the Federal rules of Criminal Procedure were not applied.' Petitioner based jurisdiction of the federal court on 'the supervisory powers of Federal Courts over federal law enforcement agencies.' Alleging that 'the respondents will be called to testify in such case that the petitioner unlawfully had in his possession the narcotic drugs seized by the respondents,' he asked, first, a declaratory judgment as to whether the federal agents had acted illegally in the arrest and incidental search of petitioner and, second, in the event that the search had been illegal, the impounding of the seized narcotics and an injunction against the respondents' testifying 'in respect to the narcotic drugs so seized' in the state proceedings.

These allegations, liberally construed, entitle petitioner to a hearing, and, if they are supported by evidence, to the relief he seeks. In Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, we held that an injunction would issue to prevent the use by federal agents in a state proceeding of the fruits of an illegal search. 'The obligation of the federal agent is to obey the Rules (of Criminal Procedure). They are drawn for innocent and guilty alike. They prescribe standards for law enforcement. They are designed to protect the privacy of the citizen, unless the strict standards set for searches and seizures are satisfied. That policy is defeated if the federal agent can flout them and use the fruits of his unlawful act either in federal or state proceedings.' Id., 350 U.S. at pages 217-218, 76 S.Ct. at page 294.

Under Rule 41(e), Federal Rules of Criminal Procedure, the federal court is instructed to hear and determine a motion to suppress made by 'A person aggrieved by an unlawful search and seizure (where) * *  * the property was illegally seized without warrant.' Implicit in that duty is the judicial enforcement of the provisions of the Fourth Amendment and Acts of Congress which limit the power of arrest and search. Judicial enforcement is no less to be invoked after the federal agents have acted than it is before they have acted, i.e., when they apply to the courts for a warrant. That, as I understand, is the teaching of the Rea case.

It is said that petitioner has failed to allege that the arrest in question was made without probable cause, and thus illegal under federal law. See 26 U.S.C. § 7607(2), 26 U.S.C.A. § 7607(2). It is said that he has failed to point out in what way his 'legal remedy' (i.e., the hearing on the motion to exclude in the state court) was inadequate. It is said that a federal court, in the exercise of discretion to grant or to deny declaratory relief, should refuse to act in these circumstances, especially since the grant of it would interfere with a state prosecution. I believe that none of these objections is well taken.

If it should appear at a hearing that the arrest and incidental search were legal under federal law, then petitioner would have no case. But surely his failure to make the magic allegation that the arrest was 'without probable cause' should not cause him to be summarily cut off. At most, the defect complained of would justify his being required to amend his pleading.

Petitioner's failure to allege the inadequacy of his 'legal remedy' may be as easily disposed of. He is invoking, in this proceeding, the 'supervisory powers' of the federal courts over the administration of federal law enforcement. That power is lodged in the federal courts. Congress could have entrusted the enforcement of all federal laws to state tribunals, as has India. But the First Congress made the decision to create a federal judicial system, complete unto itself. Some federal laws are enforceable in state tribunals. See e.g., Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967. But the Federal Rules of Criminal Procedure are not among them. Since the federal agents have chosen to avoid the federal courts, the issue as to compliance with the Federal Rules cannot be litigated in any way other than by this proceeding. In the state trial the issue will not be whether the federal agents have acted within the limits of their federal authority, but whether, under the state constitution, the search was a reasonable one. Under the Supremacy Clause state law must give way where, for example, a state procedure violates the Federal Constitution. Yet under the decision of this Court in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, not even the duty of excluding evidence, because it was seized in violation of the command of the Fourth Amendment, is imposed on state courts as a requirement of federal law. The proper forum-indeed the only one available for litigation of compliance with that requirement-is the federal court.

We should also overrule the objection based on the policy of 28 U.S.C. § 2283, 28 U.S.C.A. § 2283, which restrains a federal court from intermeddling with state proceedings, especially state criminal proceedings. Section 2283 prohibits, in certain circumstances, the grant by a federal court of 'an injunction to stay proceedings in a State court.' What we said about the relief sought in Rea v. United States, supra, is applicable here:

'The District Court is not asked to enjoin state officials     nor in any way to interfere with state agencies in      enforcement of state law. * *  * No injunction is sought      against a state official. The only remedy asked is against a     federal agent who, we are told, plans to use his illegal      search and seizure as the basis of testimony in the state      court.' Id., 350 U.S. at pages 216-217, 76 S.Ct. at page 294.

In this case, as in Rea, the interference, if any, is an indirect one and only incidental to placing federal officers under federal standards of behavior. If the considerations which led to decisions like Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, were not controlling in Rea v. United States, supra, they should not be controlling in this case.

The rationale of Rea v. United States, supra, was that the federal courts had a specific duty of supervising compliance of federal law enforcement officers with the Federal Rules of Criminal Procedure. 'A federal agent has violated the federal Rules governing searches and seizures-Rules prescribed by this Court and made effective after submission to the Congress. See 327 U.S. 821 et seq. The power of the federal courts extends to policing those requirements and making certain that they are observed.' Id., 350 U.S. at page 217, 76 S.Ct. at page 294. The Rea case is now distinguished because in that case other contacts with the federal courts existed beyond the bare fact that federal officers were the actors in the illegal search. The additional contacts in the Rea case were three: (1) The search was made under a purported warrant of the federal courts. (2) An indictment based on the acquisition of the seized narcotics was filed in the federal court, although subsequently dismissed. (3) A motion to suppress was made in the federal court, while the indictment was pending, and was granted.

Those factual differences should not lead to a different result in this case. The decisive factor, indeed the only relevant one in this case, as in Rea, is that federal law enforcement officers are the actors in an illegal search and seizure.

If the officers in Rea had acted without any warrant, the result would not have been different. The victim of the search could certainly have obtained an order of suppression against the use of the evidence in the federal courts. Rule 41(e) specifically so provides. The motion to suppress might have been made before an indictment was filed. Again, the victim would be entitled to an order regarding the use of the evidence in federal courts. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374. The federal agents would not be 'flouting' the Rules any the less if, in either of these two situations, they had, after the issue of the order under Rule 41(e), prepared to use the suppressed evidence in a state court.

To be sure, no federal indictment was ever filed in this case; and the state proceeding was commenced prior to the issue of any order by a federal court on the legality of the search and seizure made by the federal law officers. That fact affords no reason why the victim of lawless federal police may not apply to a federal court for relief. When the Court relies on this circumstance it repudiates the very basis of the Rea decision, viz.: that the substantive command of the Federal Rules of Criminal Procedure has been 'flouted' by federal officers.

Under the Fourth Amendment, the judiciary has a special duty of protecting the right of the people to be let alone, except as warrants issue on a showing of probable cause. This special relation of federal courts to the control of federal officials who lawlessly invade the privacy of individual citizens reaches far back into history. It had, at first, an ominous note, as the courts themselves were the instrument of oppression. It was before a colonial court that James Otis, Jr., made his plea against the infamous 'writs of assistance.' Since then the courts have played an honorable role in the protection of privacy. Warrants, which were at the start only a form of judicial protection extended to officials, have become the means for protecting the individual. A judicial officer has been interposed between the suspicious official and the citizen. The role of the courts has been active. In Weeks v. United States, 232 U.S. 383, 391-392, 34 S.Ct. 341, 344, 58 L.Ed. 652, this Court said:

That case forged the doctrine, now firmly entrenched, that the federal courts will not admit illegally seized property as evidence. It is this doctrine which was the core of the substantive command whose procedural outlines are reflected in Rule 41(e). It is this doctrine that we unsympathetically reject today.

Our cases reflect the belief that federal judges have a distinct mission to perform in actively protecting the right of privacy of the individual. We said in Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436:

'Any assumption that evidence sufficient to support a     magistrate's disinterested determination to issue a search      warrant will justify the officers in making a search without      a warrant would reduce the Amendment to a nullity and leave      the people's homes secure only in the discretion of police      officers.'

This particular view reflected the deeplying assumption that the command of the Fourth Amendment implies continuous supervision by the judiciary over law enforcement officers, quite different from the passive role which courts play in some spheres. The rule that a search, otherwise legal, may be illegal for failure to apply to a magistrate for a warrant was expressed in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, and McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. We stated that 'search warrants are to be obtained and used wherever reasonably practicable.' Trupiano v. United States, supra, 334 U.S. at page 709, 68 S.Ct. at page 1234. We have occasionally retreated, as United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877; and Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, show. But we returned to the basic philosophy of the Fourth Amendment in Rea v. United States, supra. When I wrote for the Court in that case saying that '(t)he obligation of the federal agent is to obey the Rules,' I thought we meant obedience to the substantive law for which those rules offer a procedural matrix. 350 U.S. at page 217, 76 S.Ct. at page 294. It is difficult for me to believe that that protection is limited to those situations where the federal officers invoke the 'process' of the federal court. Rule 41(e) provides a remedy by way of suppression where 'the property was illegally seized without warrant,' as it was in this case, if the allegations are supported by evidence.

When we forsake Rea v. United States and tell the federal courts to keep hands off, we wink at a new form of official lawlessness. Federal officials are now free to violate the Federal Rules that were designed to protect the individual's privacy, provided they turn the evidence unlawfully obtained over to the States for prosecution. This is an evasion of federal law that has consequences so serious that I must dissent. This case may be inconsequential in the tides of legal history. But the rule we fashion is an open invitation to federal officials to 'flout' federal law, to make such searches as they desire, to forget about the search warrants required by the Fourth Amendment, to break into homes willynilly, and then to repair to state courts. There the Federal Rules do not apply; there the exclusionary rule of Weeks v. United States, supra, does not apply. See Wolf v. People of State of Colorado, supra. There evidence, unlawfully obtained by the standards that govern federal officials, may be used against the victim. A few States have exclusionary rules as strict as those commanded by the Fourth Amendment. Many permit the use in state prosecutions of evidence which would be barred if tendered in federal prosecutions. The tender regard which is expressed for federal-state relations will in ultimate effect be a tender regard for federal officials who flout federal law. Today we lower federal law enforcement standards by giving federal agents carte blanche to break down doors, ransack homes, search and seize to their heart's content-so long as they stay away from federal courts and do not try to use the evidence there. This is an invitation to lawlessness which I cannot join.