Wong Sun v. United States/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

While I join the Court's opinion I do so because nothing the Court holds is inconsistent with my belief that there having been time to get a warrant, probable cause alone could not have justified the arrest of petitioner Toy without a warrant.

I adhere to the views I expressed in Jones v. United States, 362 U.S. 257, 273, 80 S.Ct. 725, 737, 4 L.Ed.2d 697. What I said in the Jones case had been earlier stated by Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (another narcotics case):

'The point of the Fourth Amendment, which often is not     grasped by zealous officers, is not that it denies law      enforcement the support of the usual inferences which      reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn     by a neutral and detached magistrate instead of being judged      by the officer engaged in the often competitive enterprise of      ferreting out crime. 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.' Pp. 13-14, 68 S.Ct. p. 369. And see Chapman v. United States, 365 U.S. 610, 615-616, 81     S.Ct. 776, 779, 5 L.Ed.2d 828.

The Court finds it unnecessary to reach that constitutional question. I mention it only to reiterate that the Johnson case represents the law and is in no way eroded by what we fail to decide today.

Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.