U.S. Supreme Court Carroll v. United States, 267
U.S. 132 (1925) Carroll v. United
States No. 15 Argued December 4,
1923 Restored to docket for reargument
January 28, 1924 Reargued March 14,
1924 Decided March 2, 1925 267
U.S. 132 ERROR TO THE DISTRICT COURT OF THE
UNITED STATES FOR THE WESTERN DISTRICT OF
MICHIGAN Syllabus 1. The legislative history of 6 of the act supplemental to the
National Prohibition Act, November 23, 1921, c. 134, 42 Stat. 223,
which makes it a misdemeanor for any officer of the United States
to search a private dwelling without a search warrant or to search
any other building or property without a search warrant,
maliciously and without reasonable cause, shows clearly the intent
of Congress to make a distinction as to the necessity for a search
warrant in the searching of private dwellings and in the searching
of automobiles or other road vehicles, in the enforcement of the
Prohibition Act. P. 267 U. S.
144 .

															2. The Fourth Amendment denounces only such searches or seizures
as are unreasonable, and it is to be construed in the light of what
was deemed an unreasonable search and seizure when it was adopted,
and in a manner which will conserve public interests as well as the
interests and rights of individual citizens. P. 267 U. S.
147 .

															3. Search without a warrant of an automobile, and seizure
therein of liquor subject to seizure and destruction under the
Prohibition Act, do not violate the Amendment, if made upon
probable cause, i.e., upon a belief, reasonably arising
out of circumstances known to the officer, that the vehicle
contains such contraband liquor. P. 267 U. S.
149 .

															4. Various acts of Congress are cited to show that, practically
since the beginning of the Government, the Fourth Amendment has
been construed as recognizing a necessary difference between a
search for contraband in a store, dwelling-house, or other
structure Page 267 U. S. 133 for the search of which a warrant may readily be obtained, and a
search of a ship, wagon, automobile, or other vehicle which may be
quickly moved out of the locality or jurisdiction in which the
warrant must be sought. P. 267 U. S. 150 .

															5. Section 26, Title II, of the National Prohibition Act,
provides that, when an officer "shall discover any person in the
act" of transporting intoxicating liquor in any automobile, or
other vehicle, in violation of law, it shall be his duty to seize
the liquor and thereupon to take possession of the vehicle and
arrest the person in charge of it, and that, upon conviction of
such person, the court shall order the liquor destroyed, and,
except for good cause shown, shall order a public sale, etc. of the
other property seized. Held: (a) That the primary purpose is the seizure and destruction of
the contraband liquor, and the provisions for forfeiture of the
vehicle and arrest of the transporter are merely incidental. P. 267 U. S.
153 .

															(b) Hence, the right to search an automobile for illicit liquor
and to seize the liquor, if found, and thereupon to seize the
vehicle also and to arrest the offender, does not depend upon the
right to arrest the offender in the first instance, and therefore
it is not determined by the degree of his offence -- whether a
misdemeanor under § 29, Title II of the Act, because of being his
first or second offence, or a felony because it is his third, and
the rule allowing arrest without warrant for misdemeanor only when
the offence is committed in the officer's presence, but for a
felony when the officer has reasonable cause to believe that the
person arrested has committed a felony, is not the test of the
validity of such search and seizure. Pp. 267 U. S. 155 , 267 U. S.
156 .

															(c) The seizure is legal if the officer, in stopping and
searching the vehicle, has reasonable or probable cause for
believing that contraband liquor is being illegally transported in
it. P. 267 U. S.
155 .

															(d) The language of § 26 -- when an officer shall "discover "
any person in the act of transporting, etc. -- does not limit him
to what he learns of the contents of a passing automobile by the
use of his senses at the time. P. 267 U. S.
158 .

															(e) The section thus construed is consistent with the Fourth
Amendment. P. 267 U. S.
159 .

															6. Probable cause held to exist where prohibition officers,
while patrolling a highway much used in illegal transportation of
liquor, stopped and searched an automobile upon the faith of
information previously obtained by them that the car and its
occupants, identified by the officers, were engaged in the illegal
business of "bootlegging." P. 267 U. S.
159 . Page 267 U. S. 134 7. When contraband liquor, seized from an automobile and used in
the conviction of those in charge of the transportation, was shown
at the trial to have been taken in a search justified by probable
cause, held that the Court's refusal to return he liquor
on defendants' motion before trial, even if erroneous because
probable cause was not then proven, was not a substantial reason
for . reversing the conviction. P. 267 U. S.
162 .

															8. The Court notices judicially that Grand Rapids is about 152
miles from Detroit, and that Detroit, and its neighborhood along
the Detroit River, which is the international boundary, is one of
the most active centers for introducing illegally into this country
spirituous liquors for distribution into the interior. P. 267 U. S.
160 . Affirmed. This is a writ of error to the District Court under Section 238
of the Judicial Code. The plaintiffs in error, hereafter to be
called the defendants, George Carroll and John Kiro, were indicted
and convicted for transporting in an automobile intoxicating
spirituous liquor, to-wit: 68 quarts of so-called bonded whiskey
and gin, in violation of the National Prohibition Act. The ground
on which they assail the conviction is that the trial court
admitted in evidence two of the 68 bottles, one of whiskey and one
of gin, found by searching the automobile. It is contended that the
search and seizure were in violation of the Fourth Amendment, and
therefore that use of the liquor as evidence was not proper. Before
the trial, a motion was made by the defendants that all the liquor
seized be returned to the defendant Carroll, who owned the
automobile. This motion was denied.

															The search and seizure were made by Cronenwett, Scully and
Thayer, federal prohibition agents, and one Peterson, a state
officer, in December, 1921, as the car was going westward on the
highway between Detroit and Grand Rapids at a point 16 miles
outside of Grand Rapids. The facts leading to the search and
seizure were as follows: on September 29th, Cronenwett and Scully
were in an apartment in Grand Rapids. Three men came to that
apartment, a man named Kruska and the two defendants, Page 267 U. S. 135 Carroll and Kiro. Cronenwett was introduced to them as one
Stafford, working in the Michigan Chair Company in Grand Rapids,
who wished to buy three cases of whiskey. The price was fixed at
$13 a case. The three men said they had to go to the east end of
Grand Rapids to get the liquor and that they would be back in half
or three-quarters of an hour. They went away, and in a short time
Kruska came back and said they could not get it that night, that
the man who had it was not in, but that they would deliver it the
next day. They had come to the apartment in an automobile known as
an Oldsmobile Roadster, the number of which Cronenwett then
identified, a did Scully. The proposed vendors did not return the
next day, and the evidence disclosed no explanation of their
failure to do so. One may surmise that it was suspicion of the real
character of the proposed purchaser, whom Carroll subsequently
called by his first name when arrested in December following.
Cronenwett and his subordinates were engaged in patrolling the road
leading from Detroit to Grand Rapids, looking for violations of the
Prohibition Act. This seems to have been their regular tour of
duty. On the 6th of October, Carroll and Kiro, going eastward from
Grand Rapids in the same Oldsmobile Roadster, passed Cronenwett and
Scully some distance out from Grand Rapids. Cronenwett called to
Scully, who was taking lunch, that the Carroll boys had passed them
going toward Detroit, and sought with Scully to catch up with them
to see where they were going. The officers followed as far as East
Lansing, half way to Detroit, but there lost trace of them. On the
15th of December, some two months later, Scully and Cronenwett, on
their regular tour of duty, with Peterson, the State officer, were
going from Grand Rapids to Ionia, on the road to Detroit, when Kiro
and Carroll met and passed them in the same automobile, coming from
the direction of Detroit to Grand Rapids. The government agents
turned Page 267 U. S. 136 their car and followed the defendants to a point some sixteen
miles east of Grand Rapids, where they stopped them and searched
the car. They found behind the upholstering of the seats, the
filling of which had been removed, 68 bottles. These had labels on
them, part purporting to be certificates of English chemists that
the contents were blended Scotch whiskeys, and the rest that the
contents were Gordon gin made in London. When an expert witness was
called to prove the contents, defendants admitted the nature of
them to be whiskey and gin. When the defendants were arrested,
Carroll said to Cronenwett, "Take the liquor and give us one more
chance and I will make it right with you," and he pulled out a roll
of bills, of which one was for $10. Peterson and another took the
two defendants and the liquor and the car to Grand Rapids, while
Cronenwett, Thayer and Scully remained on the road looking for
other cars of whose coming they had information. The officers were
not anticipating that the defendants would be coming through on the
highway at that particular time, but when they met them there, they
believed they were carrying liquor, and hence the search, seizure
and arrest. Page 267 U. S. 143 MR. CHIEF JUSTICE TAFT, after stating the case as above,
delivered the opinion of the Court.

															The constitutional and statutory provisions involved in this
case include the Fourth Amendment and the National Prohibition
Act.

															The Fourth Amendment is in part as follows:

															"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the person, or things to
be seized."

															Section 25, Title II, of the National Prohibition Act, c. 85, 41
Stat. 305, 315, passed to enforce the Eighteenth Amendment, makes
it unlawful to have or possess any liquor intended for use in
violating the Act, or which has been so used, and provides that no
property rights shall exist in such liquor. A search warrant may
issue and such liquor, with the containers thereof, may be seized
under the warrant and be ultimately destroyed. The section further
provides:

															"No search warrant shall issue to search any private dwelling
occupied as such unless it is being used for the unlawful sale of
intoxicating liquor, or unless it is in part used for some business
purpose such as a store, shop, saloon, restaurant, hotel, or
boarding house. The term 'private dwelling' shall be construed to
include the room or rooms used and occupied not transiently but
solely as Page 267 U. S. 144 a residence in an apartment house, hotel, or boarding
house."

															Section 26, Title II, under which the seizure herein was made,
provides in part as follows:

															"When the commissioner, his assistants, inspectors, or any
officer of the law shall discover any person in the act of
transporting in violation of the law, intoxicating liquors in any
wagon, buggy, automobile, water or air craft, or other vehicle, it
shall be his duty to seize any and all intoxicating liquors found
therein being transported contrary to law. Whenever intoxicating
liquors transported or possessed illegally shall be seized by an
officer he shall take possession of the vehicle and team or
automobile, boat, air or water craft, or any other conveyance, and
shall arrest any person in charge thereof."

															The section then provides that the court, upon conviction of the
person so arrested, shall order the liquor destroyed, and, except
for good cause shown, shall order a sale by public auction of the
other property seized, and that the proceeds shall be paid into the
Treasury of the United States.

															By Section 6 of an Act supplemental to the National Prohibition
Act, c. 134, 42 Stat. 222, 223, it is provided that, if any officer
or agent or employee of the United States engaged in the
enforcement of the Prohibition Act or this Amendment, "shall search
any private dwelling," as defined in that Act, "without a warrant
directing such search," or "shall without a search warrant
maliciously and without reasonable cause search any other building
or property," he shall be guilty of a misdemeanor and subject to
fine or imprisonment or both.

															In the passage of the supplemental Act through the Senate,
Amendment No. 32, known as the Stanley Amendment, was adopted, the
relevant part of which was as follows:

															"Section 6. That any officer, agent or employee of the United
States engaged in the enforcement of this Act or Page 267 U. S. 145 the National Prohibition Act, or any other law of the United
States, who shall search or attempt to search the property or
premises of any person without previously securing a search
warrant, as provided by law, shall be guilty of a misdemeanor and
upon conviction thereof shall be fined not to exceed $1000, or
imprisoned not to exceed one year, or both so fined and imprisoned
in the discretion of the Court."

															This Amendment was objected to in the House, and the Judiciary
Committee, to whom it was referred, reported to the House of
Representatives the following as a substitute.

															"Sec. 6. That no officer, agent or employee of the United
States, while engaged in the enforcement of this Act, the National
Prohibition Act, or any law in reference to the manufacture or
taxation of, or traffic in, intoxicating liquor, shall search any
private dwelling without a warrant directing such search, and no
such warrant shall issue unless there is reason to believe such
dwelling is used as a place in which liquor is manufactured for
sale or sold. The term 'private dwelling' shall be construed to
include the room or rooms occupied not transiently, but solely as a
residence in an apartment house, hotel, or boarding house. Any
violation of any provision of this paragraph shall be punished by a
fine of not to exceed $1000 or imprisonment not to exceed one year,
or both such fine and imprisonment, in the discretion of the
court."

															In its report, the Committee spoke in part as follows:

															"It appeared to the committee that the effect of the Senate
amendment No. 32, if agreed to by the House, would greatly cripple
the enforcement of the national prohibition act and would otherwise
seriously interfere with the Government in the enforcement of many
other laws, as its scope is not limited to the prohibition law, Page 267 U. S. 146 but applies equally to all laws where prompt action is
necessary. There are on the statute books of the United States a
number of laws authorizing search without a search warrant. Under
the common law and agreeably to the Constitution, search may in
many cases be legally made without a warrant. The Constitution does
not forbid search, as some parties contend, but it does forbid
unreasonable search. This provision in regard to search is, as a
rule, contained in the various State constitutions, but
notwithstanding that fact, search without a warrant is permitted in
many cases, and especially is that true in the enforcement of
liquor legislation."

															"The Senate amendment prohibits all search or attempt to search
any property or premises without a search warrant. The effect of
that would necessarily be to prohibit all search, as no search can
take place if it is not on some property or premises."

															"Not only does this amendment prohibit search of any lands, but
it prohibits the search of all property. It will prevent the search
of the common bootlegger and his stock in trade, though caught and
arrested in the act of violating the law. But what is perhaps more
serious, it will make it impossible to stop the rum running
automobiles engaged in like illegal traffic. It would take from the
officers the power that they absolutely must have to be of any
service, for if they cannot search for liquor without a warrant,
they might as well be discharged. It is impossible to get a warrant
to stop an automobile. Before a warrant could be secured, the
automobile would be beyond the reach of the officer, with its load
of illegal liquor disposed of."

															The conference report resulted, so far as the difference between
the two Houses was concerned, in providing for the punishment of
any officer, agent or employee of the Government who searches a
"private dwelling" without a warrant, and for the punishment of any
such officer, Page 267 U. S. 147 etc., who searches any "other building or property" where, and
only where, he makes the search without a warrant "maliciously and
without probable cause." In other words, it left the way open for
searching an automobile, or vehicle of transportation, without a
warrant, if the search was not malicious or without probable
cause.

															The intent of Congress to make a distinction between the
necessity for a search warrant in the searching of private
dwellings and in that of automobiles and other road vehicles is the
enforcement of the Prohibition Act is thus clearly established by
the legislative history of the Stanley Amendment. Is such a
distinction consistent with the Fourth Amendment? We think that it
is. The Fourth Amendment does not denounce all searches or
seizures, but only such as are unreasonable.

															The leading case on the subject of search and seizure is Boyd v. United States, 116 U. S. 616 . An
Act of Congress of June 22, 1874, authorized a court of the United
States, in revenue cases, on motion of the government attorney, to
require the defendant to produce in court his private books,
invoices and papers on pain in case of refusal of having the
allegations of the attorney in his motion taken as confessed. This
was held to be unconstitutional and void as applied to suits for
penalties or to establish a forfeiture of goods, on the ground
that, under the Fourth Amendment, the compulsory production of
invoices to furnish evidence for forfeiture of goods constituted an
unreasonable search even where made upon a search warrant, and that
it was also a violation of the Fifth Amendment, in that it
compelled the defendant in a criminal case to produce evidence
against himself or be in the attitude of confessing his guilt.

															In Weeks v. United States, 232 U.
S. 383 , it was held that a court in a criminal
prosecution could not retain letters of the accused seized in his
house, in his absence and without his authority, by a United States
marshal Page 267 U. S. 148 holding no warrant for his arrest and none for the search of his
premises, to be used as evidence against him, the accused having
made timely application to the court for an order for the return of
the letters.

															In Silverthorne Lumber Company v. United States, 251 U. S. 385 , a
writ of error was brought to reverse a judgment of contempt of the
District Court, fining the company and imprisoning one
Silverthorne, its president, until he should purge himself of
contempt in not producing books and documents of the company before
the grand jury to prove violation of the statutes of the United
States by the company and Silverthorne. Silverthorne had been
arrested, and, while under arrest, the marshal had gone to the
office of the company without a warrant and made a clean sweep of
all books, papers and documents found there, and had taken copies
and photographs of the papers. The District Court ordered the
return of the originals, but impounded the photographs and copies.
This was held to be an unreasonable search of the property and
possessions of the corporation and a violation of the Fourth
Amendment, and the judgment for contempt was reversed.

															In Gouled v. United States, 255 U.
S. 298 , the obtaining through stealth by a
representative of the Government, from the office of one suspected
of defrauding the Government, of a paper which had no pecuniary
value in itself, but was only to be used as evidence against its
owner, was held to be a violation of the Fourth Amendment. It was
further held that, when the paper was offered in evidence and duly
objected to, it must be ruled inadmissible because obtained through
an unreasonable search and seizure, and also in violation of the
Fifth Amendment because working compulsory incrimination.

															In Amos v. United States, 255 U.
S. 313 , it was held that, where concealed liquor was
found by government officers without a search warrant in the home
of the defendant, Page 267 U. S. 149 in his absence, and after a demand made upon his wife, it was
inadmissible as evidence against the defendant because acquired by
an unreasonable seizure.

															In none of the cases cited is there any ruling as to the
validity under the Fourth Amendment of a seizure without a warrant
of contraband goods in the course of transportation and subject to
forfeiture or destruction.

															On reason and authority, the true rule is that, if the search
and seizure without a warrant are made upon probable cause, that
is, upon a belief, reasonably arising out of circumstances known to
the seizing officer, that an automobile or other vehicle contains
that which by law is subject to seizure and destruction, the search
and seizure are valid. The Fourth Amendment is to be construed in
the light of what was deemed an unreasonable search and seizure
when it was adopted, and in a manner which will conserve public
interests as well as the interests and rights of individual
citizens.

															In Boyd v. United States, 116 U.
S. 616 , as already said, the decision did not turn on
whether a reasonable search might be made without a warrant; but
for the purpose of showing the principle on which the Fourth
Amendment proceeds, and to avoid any misapprehension of what was
decided, the Court, speaking through Mr. Justice Bradley, used
language which is of particular significance and applicability
here. It was there said (page 116 U. S.
623 ):

															"The search for and seizure of stolen or forfeited goods, or
goods liable to duties and concealed to avoid the payment thereof,
are totally different things from a search for and seizure of a
man's private books and papers for the purpose of obtaining
information therein contained, or of using them as evidence against
him. The two things differ toto coelo. In the one case,
the government is entitled to the possession of the property; in
the other, it is not. The seizure of stolen goods is authorized by
the Page 267 U. S. 150 common law, and the seizure of goods forfeited for a breach of
the revenue laws, or concealed to avoid the duties payable on them,
has been authorized by English statutes for at least two centuries
past, and the like seizures have been authorized by our own revenue
acts from the commencement of the government. The first statute
passed by Congress to regulate the collection of duties, the act of
July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect.
As this act was passed by the same Congress which proposed for
adoption the original amendments to the Constitution, it is clear
that the members of that body did not regard searches and seizures
of this kind as 'unreasonable,' and they are not embraced within
the prohibition of the amendment. So, also, the supervision
authorized to be exercised by officers of the revenue over the
manufacture or custody of excisable articles, and the entries
thereof in books required by law to be kept for their inspection,
are necessarily excepted out of the category of unreasonable
searches and seizures. So, also, the laws which provide for the
search and seizure of articles and things which it is unlawful for
a person to have in his possession for the purpose of issue or
disposition, such as counterfeit coin, lottery tickets, implements
of gambling, &c., are not within this category. Commonwealth v. Dana, 2 Met. (Mass.) 329. Many other
things of this character might be enumerated."

															It is noteworthy that the twenty-fourth section of the Act of
1789, to which the Court there refers, provides:

															"That every collector, naval officer and surveyor, or other
person specially appointed by either of them for that purpose,
shall have full power and authority, to enter any ship or vessel,
in which they shall have reason to suspect any goods, wares or
merchandise subject to duty shall be concealed, and therein to
search for, seize, and secure any such goods, wares or merchandise,
and if they shall have cause to suspect a concealment thereof, in
any Page 267 U. S. 151 particular dwelling-house, store, building, or other place, they
or either of them shall, upon application on oath or affirmation to
any justice of the peace, be entitled to a warrant to enter such
house, store, or other place (in the day time only) and there to
search for such goods, and if any shall be found, to seize and
secure the same for trial, and all such goods, wares, and
merchandise, on which the duties shall not have been paid or
secured, shall be forfeited."

															Like provisions were contained in the Act of August 4, 1790, c.
35, Sections 451, 1 Stat. 145, 170; in Section 27 of the Act of
February 18, 1793, c. 8, 1 Stat. 305, 315, and in Sections 68-71 of
the Act of March 2, 1799, c. 22, 1 Stat. 627, 677, 678.

															Thus, contemporaneously with the adoption of the Fourth
Amendment, we find in the first Congress, and in the following
Second and Fourth Congresses, a difference made as to the necessity
for a search warrant between goods subject to forfeiture, when
concealed in a dwelling house or similar place, and like goods in
course of transportation and concealed in a movable vessel where
they readily could be put out of reach of a search warrant. Compare Hester v. United States, 265 U. S.
57 .

															Again, by the second section of the Act of March 3, 1815, 3
Stat. 231, 232, it was made lawful for customs officers not only to
board and search vessels within their own and adjoining districts,
but also to stop, search and examine any vehicle, beast or person
on which or whom they should suspect there was merchandise which
was subject to duty or had been introduced into the United States
in any manner contrary to law, whether by the person in charge of
the vehicle or beast or otherwise, and if they should find any
goods, wares or merchandise thereon, which they had probable cause
to believe had been so unlawfully brought into the country, to
seize and secure the same, and the vehicle or beast as well, for
trial Page 267 U. S. 152 and forfeiture. This Act was renewed April 27, 1816, 3 Stat.
315, for a year and expired. The Act of February 28, 1865, revived
Section 2 of the Act of 1815, above described, c. 67, 13 Stat. 441.
The substance of this section was reenacted in the third section of
the Act of July 18, 1866, c. 201, 14 Stat. 178, and was thereafter
embodied in the Revised Statutes as Section 3061. Neither Section
3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated
a operative by this Court in Cotzhausen v. Nazro, 107 U. S. 215 , 107 U. S. 219 . See also United States v. One Black Horse, 129 Fed.
167.

															Again, by Section 2140 of the Revised Statutes, any Indian
agent, sub-agent or commander of a military post in the Indian
Country, having reason to suspect or being informed that any white
person or Indian is about to introduce, or has introduced, any
spirituous liquor or wine into the Indian Country, in violation of
law, may cause the boats, stores, packages, wagons, sleds and
places of deposit of such person to be searched, and if any liquor
is found therein, then it, together with the vehicles, shall be
seized and proceeded against by libel in the proper court and
forfeited. Section 2140 was the outgrowth of the Act of May 6,
1822, c. 58, 3 Stat. 682, authorizing Indian agents to cause the
goods of traders in the Indian Country to be searched upon
suspicion or information that ardent spirits were being introduced
into the Indian Country, to be seized and forfeited if found, and
of the Act of June 30, 1834, Section 20, c. 161, 4 Stat. 729, 732,
enabling an Indian agent having reason to suspect any person of
having introduced or being about to introduce liquors into the
Indian Country to cause the boats, stores or places of deposit of
such person to be searched and the liquor found forfeited. This
Court recognized the statute of 1822 as justifying such a search
and seizure in American Fur Co. v. United
States , 2 Pet. 358. By the Indian Page 267 U. S. 153 Appropriation Act of March 2, 1917, c. 146, 39 Stat. 969, 970,
automobiles used in introducing or attempting to introduce
intoxicants into the Indian Territory may be seized, libeled and
forfeited as provided in the Revised Statutes, Section 2140.

															And again, in Alaska, by Section 174 of the Act of March 3,
1899, c. 429, 30 Stat. 1253, 1280, it is provided that collectors
and deputy collectors, or any person authorized by them in writing,
shall be given power to arrest persons and seize vessels and
merchandise in Alaska liable to fine, penalties or forfeiture under
the Act and to keep and deliver the same, and the Attorney General,
in construing the Act, advised the Government:

															"If your agents reasonably suspect that a violation of law has
occurred, in my opinion they have power to search any vessel within
the 3-mile limit according to the practice of customs officers when
acting under Section 3059 of the Revised Statutes, and to seize
such vessels."

															26 Opinions Attorneys General 243.

															We have made a somewhat extended reference to these statutes to
show that the guaranty of freedom from unreasonable searches and
seizures by the Fourth Amendment has been construed, practically
since the beginning of the Government, as recognizing a necessary
difference between a search of a store, dwelling house or other
structure in respect of which a proper official warrant readily may
be obtained, and a search of a ship, motor boat, wagon or
automobile, for contraband goods, where it is not practicable to
secure a warrant because the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant must be
sought.

															Having thus established that contraband goods concealed and
illegally transported in an automobile or other vehicle may be
searched for without a warrant, we come now to consider under what
circumstances such search may be made. It would be intolerable and
unreasonable Page 267 U. S. 154 if a prohibition agent were authorized to stop every automobile
on the chance of finding liquor, and thus subject all persons
lawfully using the highways to the inconvenience and indignity of
such a search. Travelers may be so stopped in crossing an
international boundary because of national self protection
reasonably requiring one entering the country to identify himself
as entitled to come in, and his belongings as effects which may be
lawfully brought in. But those lawfully within the country,
entitled to use the public highways, have a right to free passage
without interruption or search unless there is known to a competent
official authorized to search, probable cause for believing that
their vehicles are carrying contraband or illegal merchandise.
Section 26, Title II, of the National Prohibition Act, like the
second section of the Act of 1789, for the searching of vessels,
like the provisions of the Act of 1815, and Section 3061, Revised
Statutes, for searching vehicles for smuggled goods, and like the
Act of 1822, and that of 1834 and Section 2140, R.S., and the Act
of 1917 for the search of vehicles and automobiles for liquor
smuggled into the Indian Country, was enacted primarily to
accomplish the seizure and destruction of contraband goods;
secondly, the automobile was to be forfeited, and thirdly, the
driver was to be arrested. Under Section 29, Title II, of the Act
the latter might be punished by not more than $500 fine for the
first offense, not more than $1,000 fine or 90 days' imprisonment
for the second offense, and by a fine of $500 or more and by not
more than 2 years' imprisonment for the third offense. Thus, he is
to be arrested for a misdemeanor for his first and second offenses
and for a felony if he offends the third time. The main purpose of
the Act obviously was to deal with the liquor and its
transportation and to destroy it. The mere manufacture of liquor
can do little to defeat the policy of the Eighteenth Amendment and
the Prohibition Act, unless the forbidden Page 267 U. S. 155 product can be distributed for illegal sale and use. Section 26
was intended to reach and destroy the forbidden liquor in
transportation, and the provisions for forfeiture of the vehicle
and the arrest of the transporter were incidental. The rule for
determining what may be required before a seizure may be made by a
competent seizing official is not to be determined by the character
of the penalty to which the transporter may be subjected. Under
Section 28, Title II, of the Prohibition Act, the Commissioner of
Internal Revenue, his assistants, agents and inspectors are to have
the power and protection in the enforcement of the Act conferred by
the existing laws relating to the manufacture or sale of
intoxicating liquors. Officers who seize under Section 26 of the
Prohibition Act are therefore protected by Section 970 of the
Revised Statutes, providing that:

															"When, in any prosecution commenced on account of the seizure of
any vessel, goods, wares, or merchandise, made by any collector or
other officer, under any Act of Congress authorizing such seizure,
judgment is rendered for the claimant, but it appears to the court
that there was reasonable cause of seizure, the court shall cause a
proper certificate thereof to be entered, and the claimant shall
not, in such case, be entitled to costs, nor shall the person who
made the seizure, nor the prosecutor, be liable to suit or judgment
on account of such suit or prosecution: Provided, That the
vessel, goods, wares, or merchandise be, after judgment, forthwith
returned to such claimant or his agent."

															It follows from this that, if an officer seizes an automobile or
the liquor in it without a warrant and the facts as subsequently
developed do not justify a judgment of condemnation and forfeiture,
the officer may escape costs or a suit for damages by a showing
that he had reasonable or probable cause for the seizure. Stacey v. Emery, 97 U. S. 642 . The
measure of legality of such a seizure is, Page 267 U. S. 156 therefore, that the seizing officer shall have reasonable or
probable cause for believing that the automobile which he stops and
seizes has contraband liquor therein which is being illegally
transported.

															We here find the line of distinction between legal and illegal
seizures of liquor in transport in vehicles. It is certainly a
reasonable distinction. It gives the owner of an automobile or
other vehicle seized under Section 26, in absence of probable
cause, a right to have restored to him the automobile, it protects
him under the Weeks and Amos cases from use of
the liquor as evidence against him, and it subjects the officer
making the seizures to damages. On the other hand, in a case
showing probable cause, the Government and its officials are given
the opportunity which they should have, to make the investigation
necessary to trace reasonably suspected contraband goods and to
seize them.

															Such a rule fulfills the guaranty of the Fourth Amendment. In
cases where the securing of a warrant is reasonably practicable, it
must be used, and when properly supported by affidavit and issued
after judicial approval, protects the seizing officer against a
suit for damages. In cases where seizure is impossible except
without warrant, the seizing officer acts unlawfully and at his
peril unless he can show the court probable cause. United
States v. Kaplan, 286 Fed. 963, 972.

															But we are pressed with the argument that, if the search of the
automobile discloses the presence of liquor and leads under the
statute to the arrest of the person in charge of the automobile,
the right of seizure should be limited by the common law rule as to
the circumstances justifying an arrest without warrant for a
misdemeanor. The usual rule is that a police officer may arrest
without warrant one believed by the officer upon reasonable cause
to have been guilty of a felony, and that he may only arrest
without a warrant one guilty of misdemeanor if committed Page 267 U. S. 157 in his presence. Kurtz v. Moffitt, 115 U.
S. 487 ; Elk v. United States, 177 U.
S. 529 . The rule is sometimes expressed as follows:

															"In cases of misdemeanor, a peace officer, like a private
person, has at common law no power of arresting without a warrant
except when a breach of the peace has been committed in his
presence or there is reasonable ground for supposing that a breach
of peace is about to be committed or renewed in his presence."

															Halsbury's Laws of England, Vol. 9, part III, 612.

															The reason for arrest for misdemeanors without warrant at common
law was promptly to suppress breaches of the peace, 1 Stephen,
History of Criminal Law, 193, while the reason for arrest without
warrant on a reliable report of a felony was because the public
safety and the due apprehension of criminals charged with heinous
offenses required that such arrests should be made at once without
warrant. Rohan v. Sawan, 5 Cush. 281. The argument for
defendants is that, as the misdemeanor to justify arrest without
warrant must be committed in the presence of the police officer,
the offense is not committed in his presence unless he can by his
senses detect that the liquor is being transported, no matter how
reliable his previous information by which he can identify the
automobile as loaded with it. Elrod v. Moss, 278 Fed. 123; Hughes v. State, 145 Tenn. 544.

															So it is that, under the rule contended for by defendants, the
liquor, if carried by one who has been already twice convicted of
the same offense, may be seized on information other than the
senses, while, if he has been only once convicted, it may not be
seized unless the presence of the liquor is detected by the senses
as the automobile concealing it rushes by. This is certainly a very
unsatisfactory line of difference when the main object of the
section is to forfeit and suppress the liquor, the arrest of the
individual being only incidental, as shown by the lightness Page 267 U. S. 158 of the penalty. See Commonwealth v. Street, 3 Pa.Dist.
& Co. Reports, 783. In England at the common law, the
difference in punishment between felonies and misdemeanors was very
great. Under our present federal statutes, it is much less
important, and Congress may exercise a relatively wide discretion
in classing particular offenses as felonies or misdemeanors. As the
main purpose of Section 26 was seizure and forfeiture, it is not so
much the owner as the property that offends. Agnew v.
Haymes, 141 Fed. 631, 641. The language of the section
provides for seizure when the officer of the law "discovers" anyone
in the act of transporting the liquor by automobile or other
vehicle. Certainly it is a very narrow and technical construction
of this word which would limit it to what the officer sees, hears
or smells as the automobile rolls by, and exclude therefrom, when
he identifies the car, the convincing information that he may
previously have received as to the use being made of it.

															We do not think such a nice distinction is applicable in the
present case. When a man is legally arrested for an offense,
whatever is found upon his person or in his control which it is
unlawful for him to have and which may be used to prove the offense
may be seized and held as evidence in the prosecution. Weeks v.
United States, 232 U. S. 383 , 232 U. S. 392 ; Dillon v. O'Brien and Davis, 16 Cox. C.C. 245; Getchell v. Page, 103 Me. 387; Kneeland v.
Connally, 70 Ga. 424; 1 Bishop, Criminal Procedure, Sec. 211;
1 Wharton, Criminal Procedure (10th edition), Sec. 97. The argument
of defendants is based on the theory that the seizure in this case
can only be thus justified. If their theory were sound, their
conclusion would be. The validity of the seizure then would turn
wholly on the validity of the arrest without a seizure. But the
theory is unsound. The right to search and the validity of the
seizure are not dependent on the right to arrest. They are
dependent on the reasonable cause the seizing officer Page 267 U. S. 159 has for belief that the contents of the automobile offend
against the law. The seizure in such a proceeding comes before the
arrest, as Section 26 indicates. It is true that Section 26, Title
II, provides for immediate proceedings against the person arrested,
and that, upon conviction, the liquor is to be destroyed and the
automobile or other vehicle is to be sold, with the saving of the
interest of a lienor who does not know of its unlawful use; but it
is evident that, if the person arrested is ignorant of the contents
of the vehicle, or if he escapes, proceedings can be had against
the liquor for destruction or other disposition under Section 25 of
the same title. The character of the offense for which, after the
contraband liquor is found and seized, the driver can be prosecuted
does not affect the validity of the seizure.

															This conclusion is in keeping with the requirements of the
Fourth Amendment and the principles of search and seizure of
contraband forfeitable property, and it is a wise one, because it
leaves the rule one which is easily applied and understood and is
uniform. Holbck v. State, 106 Ohio St.195, accords with
this conclusion. Ash v. United States, 299 Fed. 277 and Milam v. United States, 296 Fed. 629, decisions by the
Circuit Court of Appeals for the fourth circuit, take the same
view. The Ash case is very similar in its facts to the
case at bar, and both were by the same court which decided Snyder v. United States, 285 Fed. 1, cited for the
defendants. See also Park v. United States (1st C.C.A.)
294 Fed. 776, 783, and Lambert v. United States, (9th
C.C.A.) 282 Fed. 413.

															Finally, was there probable cause? In The
Apollon , 9 Wheat. 362, the question was whether the
seizure of a French vessel at a particular place was upon probable
cause that she was there for the purpose of smuggling. In this
discussion, Mr. Justice Story, who delivered the judgment of the
Court, said (page 22 U. S.
374 ):

															"It has been very justly observed at the bar that the Court is
bound to take notice of public facts and geographical Page 267 U. S. 160 positions, and that this remote part of the country has been
infested, at different periods, by smugglers, is a matter of
general notoriety, and may be gathered from the public documents of
the government."

															We know in this way that Grand Rapids is about 152 miles from
Detroit, and that Detroit and its neighborhood along the Detroit
River, which is the International Boundary, is one of the most
active centers for introducing illegally into this country
spirituous liquors for distribution into the interior. It is
obvious from the evidence that the prohibition agents were engaged
in a regular patrol along the important highways from Detroit to
Grand Rapids to stop and seize liquor carried in automobiles. They
knew or had convincing evidence to make them believe that the
Carroll boys, as they called them, were so-called "bootleggers" in
Grand Rapids, i.e., that they were engaged in plying the
unlawful trade of selling such liquor in that city. The officers
had soon after noted their going from Grand Rapids half way to
Detroit, and attempted to follow them to that city to see where
they went, but they escaped observation. Two months later, these
officers suddenly met the same men on their way westward,
presumably from Detroit. The partners in the original combination
to sell liquor in Grand Rapids were together in the same automobile
they had been in the night when they tried to furnish the whisky to
the officers which was thus identified as part of the firm
equipment. They were coming from the direction of the great source
of supply for their stock to Grand Rapids, where they plied their
trade. That the officers, when they saw the defendants, believed
that they were carrying liquor we can have no doubt, and we think
it is equally clear that they had reasonable cause for thinking so.
Emphasis is put by defendants' counsel on the statement made by one
of the officers that they were not looking for defendants at the
particular time when they appeared. We do not perceive that it has
any weight. As soon as they did appear, Page 267 U. S. 161 the officers were entitled to use their reasoning faculties upon
all the facts of which they had previous knowledge in respect to
the defendants.

															The necessity for probable cause in justifying seizures on land
or sea, in making arrests without warrant for past felonies, and in
malicious prosecution and false imprisonment cases has led to
frequent definition of the phrase. In Stacey v. Emery, 97 U. S. 642 , 97 U. S. 645 , a
suit for damages for seizure by a collector, this Court defined
probable cause as follows:

															"If the facts and circumstances before the officer are such as
to warrant a man of prudence and caution in believing that the
offense has been committed, it is sufficient." Locke v. United
States , 7 Cranch 339; The George, 1 Mason,
24; The Thompson , 3 Wall. 155. It was laid down by Chief Justice Shaw, in Commonwealth v. Carey, 12 Cush. 246, 251 that

															"if a constable or other peace officer arrest a person without a
warrant, he is not bound to show in his justification a felony
actually committed, to render the arrest lawful; but if he suspects
one on his own knowledge of facts, or on facts communicated to him
by others, and thereupon he has reasonable ground to believe that
the accused has been guilty of felony, the arrest is not
unlawful." Commonwealth v. Phelps, 209 Mass. 396; Rohan v.
Sawin, 5 Cush. 281, 285. In McCarthy v. De Armit, 99
Pa. St. 63, the Supreme Court of Pennsylvania sums up the
definition of probable cause in this way (page 69):

															"The substance of all the definitions is a reasonable ground for
belief in guilt."

															In the case of the Director General v. Kastenbaum, 263 U. S. 25 , which
was a suit for false imprisonment, it was said by this Court (page 263 U. S.
28 ):

															"But, as we have seen, good faith is not enough to constitute
probable cause. That faith must be grounded on facts within
knowledge of the Director General's agent, Page 267 U. S. 162 which in the judgment of the court would make his faith
reasonable." See also Munn v. e Nemours, 3 Wash.C.C. 37.

															In the light of these authorities, and what is shown by this
record, it is clear the officers here had justification for the
search and seizure. This is to say that the facts and circumstances
within their knowledge and of which they had reasonably trustworthy
information were sufficient, in themselves, to warrant a man of
reasonable caution in the belief that intoxicating liquor was being
transported in the automobile which they stopped and searched.

															Counsel finally argue that the defendants should be permitted to
escape the effect of the conviction because the court refused on
motion to deliver them the liquor when, as they say, the evidence
adduced on the motion was much less than that shown on the trial,
and did not show probable cause. The record does not make it clear
what evidence was produced in support of or against the motion.
But, apart from this, we think the point is without substance here.
If the evidence given on the trial was sufficient, as we think it
was, to sustain the introduction of the liquor as evidence, it is
immaterial that there was an inadequacy of evidence when
application was made for its return. A conviction on adequate and
admissible evidence should not be set aide on such a ground. The
whole matter was gone into at the trial, so no right of the
defendants was infringed.

															Counsel for the Government contend that Kiro, the defendant who
did not own the automobile, could not complain of the violation of
the Fourth Amendment in the use of the liquor as evidence against
him, whatever the view taken as to Carroll's rights. Our conclusion
as to the whole case makes it unnecessary for us to discuss this
aspect of it.

															The judgment is Affirmed. Page 267 U. S. 163 MR. JUSTICE MCKENNA, before his retirement, concurred in this
opinion.

															The separate opinion of MR. JUSTICE McREYNOLDS concurred in by
MR. JUSTICE SUTHERLAND.

															1. The damnable character of the "bootlegger's" business should
not close our eyes to the mischief which will surely follow any
attempt to destroy it by unwarranted methods.

															"To press forward to a great principle by breaking through every
other great principle that stands in the way of its establishment;
. . . in short, to procure an imminent good by means that are
unlawful, is as little consonant to private morality as to public
justice."

															Sir William Scott, The Louis, 2 Dolson 210, 257.

															While quietly driving an ordinary automobile along a much
frequented public road, plaintiffs in error were arrested by
Federal officers without a warrant and upon mere suspicion --
ill-founded, as I think. The officers then searched the machine and
discovered carefully secreted whisky, which was seized and
thereafter used as evidence against plaintiffs in error when on
trial for transporting intoxicating liquor contrary to the Volstead
Act (c. 85, 41 Stat. 305). They maintain that both arrest and
seizure were unlawful, and that use of the liquor as evidence
violated their constitutional rights.

															This is not a proceeding to forfeit seized goods; nor is it an
action against the seizing officer for a tort. Cases like the
following are not controlling: Crowell v.
M'Fadon , 8 Cranch 94, 12
U. S. 98 ; United States v. 1960 Bags of
Coffee , 8 Cranch 398, 403 [argument of counsel --
omitted], 12 U. S. 405 ; Otis v.
Watkins , 9 Cranch 339; Gelston v.
Hoyt , 3 Wheat. 246, 16 U. S. 310 , 16 U. S. 318 ; Wood v. United
States , 16 Pet. 342; Taylor v.
United States , 3 How. 197, 44 U. S. 205 .
They turned upon express provisions of applicable Acts of Congress;
they did not involve the point now presented, and afford little, if
any, assistance toward its proper solution. The Volstead Act does
not, in terms, authorize arrest or seizure upon mere suspicion. Page 267 U. S. 164 Whether the officers are shielded from prosecution or action by
Rev.Stat. Sec. 970 is not important. That section does not
undertake to deprive the citizen of any constitutional right, or to
permit the use of evidence unlawfully obtained. It does, however,
indicate the clear understanding of Congress that probable cause is
not always enough to justify a seizure.

															Nor are we now concerned with the question whether, by apt
words, Congress might have authorized the arrest without a warrant.
It has not attempted to do this. On the contrary, the whole history
of the legislation indicates a fixed purpose not so to do. First
and second violations are declared to be misdemeanors -- nothing
more -- and Congress, of course, understood the rule concerning
arrests for such offenses. Whether different penalties should have
been prescribed or other provisions added is not for us to inquire;
nor do difficulties attending enforcement give us power to
supplement the legislation.

															2. As the Volstead Act contains no definite grant of authority
to arrest upon suspicion and without warrant for a first offense,
we come to inquire whether such authority can be inferred from its
provisions.

															Unless the statute which creates a misdemeanor contains some
clear provision to the contrary, suspicion that it is being
violated will not justify an arrest. Criminal statutes must be
strictly construed and applied, in harmony with rules of the common
law. United States v. Harris, 177 U.
S. 305 , 177 U. S. 310 .
And the well settled doctrine is that an arrest for a misdemeanor
may not be made without a warrant unless the offense is committed
in the officer's presence. Kurtz v. Moffitt, 115 U. S. 487 , 115 U. S. 498 --

															"By the common law of England, neither a civil officer nor a
private citizen had the right without a warrant to make an arrest
for a crime not committed in his presence except in the case Page 267 U. S. 165 of felony, and then only for the purpose of bringing the
offender before a civil magistrate." Elk v. United States, 177 U. S. 529 , 177 U. S. 531 --

															"An officer, at common law, was not authorized to make an arrest
without a warrant, for a mere misdemeanor not committed in his
presence." Commonwealth v. Wright, 158 Mass. 149, 158 --

															"It is suggested that the statutory misdemeanor of having in
one's possession short lobsters with intent to sell them is a
continuing offence, which is being committed while such possession
continues, and that, therefore, an officer who sees any person in
possession of such lobsters with intent to sell them can arrest
such person without a warrant, as for a misdemeanor committed in
his presence. We are of opinion, however, that for statutory
misdemeanors of this kind, not amounting to a breach of the peace,
there is no authority in an officer to arrest without a warrant
unless it is given by statute. . . . The Legislature has often
empowered officers to arrest without warrant for similar offenses,
which perhaps tends to show that, in its opinion, no such right
exists at common law." Pinkerton v. Verberg, 78 Mich. 573, 584 --

															"Any law which would place the keeping and safe conduct of
another in the hands of even a conservator of the peace, unless for
some breach of the peace committed in his presence, or upon
suspicion of felony, would be most oppressive and unjust, and
destroy all the rights which our Constitution guarantees. These are
rights which existed long before our Constitution, and we have
taken just pride in their maintenance, making them a part of the
fundamental law of the land. . . . If persons can be restrained of
their liberty, and assaulted and imprisoned, under such
circumstances, without complaint or warrant, then there is no limit
to the power of a police officer."

															3. The Volstead Act contains no provision which annuls the
accepted common law rule or discloses definite intent Page 267 U. S. 166 to authorize arrests without warrant for misdemeanors not
committed in the officer's presence.

															To support the contrary view, Section 26 is relied upon --

															"When . . . any officer of the law shall discover any person in
the act of transporting in violation of the law, intoxicating
liquors in any wagon, buggy, automobile, water or aircraft, or
other vehicle, it shall be his duty to seize any and all
intoxicating liquors found therein being transported contrary to
law. Whenever intoxicating liquors transported or possessed
illegally shall be seized by an officer, he shall take possession
of the vehicle and team or automobile, boat, air or water craft, or
any other conveyance, and shall arrest any person in charge
thereof."

															Let it be observed that this section has no special application
to automobiles; it includes any vehicle -- buggy, wagon, boat or
air craft. Certainly, in a criminal statute, always to be strictly
construed, the words "shall discover. . . in the act of
transporting in violation of the law" cannot mean shall have
reasonable cause to suspect or believe that such transportation is
being carried on. To discover and to suspect are wholly different
things. Since the beginning, apt words have been used when Congress
intended that arrests for misdemeanors or seizures might be made
upon suspicion. It has studiously refrained from making a felony of
the offense here charged, and it did not undertake by any apt words
to enlarge the power to arrest. It was not ignorant of the
established rule on the subject, and well understood how this could
be abrogated, as plainly appears from statutes like the following:
"An Act to regulate the collection of duties on imports and
tonnage," approved March 2, 1789, c. 22, 1 Stat. 627, 677, 678;

															"An Act to provide more effectually for the collection of the
duties imposed by law on goods, wares and merchandise imported Page 267 U. S. 167 into the United States, and on the tonnage of ships or
vessels,"

															approved August 4, 1790, c. 35, 1 Stat. 145, 170; "An Act
further to provide for the collection of duties on imports and
tonnage," approved March 3, 1815, c. 94, 3 Stat. 231, 232. These
and similar Acts definitely empowered officers to seize upon
suspicion and therein radically differ from the Volstead Act, which
authorized no such thing.

															"An Act supplemental to the National Prohibition Act," approved
November 23, 1921, c. 134, 42 Stat. 222, 223, provides --

															"That any officer, agent, or employee of the United States
engaged in the enforcement of this Act, or the National Prohibition
Act, or any other law of the United States, who shall search any
private dwelling as defined in the National Prohibition Act, and
occupied as such dwelling, without a warrant directing such search,
or who while so engaged shall without a search warrant maliciously
and without reasonable cause search any other building or property,
shall be guilty of a misdemeanor and upon conviction thereof shall
be fined for a first offense not more than $1,000, and for a
subsequent offense not more than $1,000 or imprisoned not more than
one year, or both such fine and imprisonment."

															And it is argued that the words and history of this section
indicate the intent of Congress to distinguish between the
necessity for warrants in order to search private dwellings and the
right to search automobiles without one. Evidently Congress
regarded the searching of private dwellings as matter of much
graver consequence than some other searches, and distinguished
between them by declaring the former criminal. But the connection
between this distinction and the legality of plaintiffs in error's
arrest is not apparent. Nor can I find reason for inquiring
concerning the validity of the distinction under the Fourth
Amendment. Of course, the distinction is Page 267 U. S. 168 valid, and so are some seizures. But what of it? The Act made
nothing legal which theretofore was unlawful, and to conclude that,
by declaring the unauthorized search of a private dwelling
criminal, Congress intended to remove ancient restrictions from
other searches and from arrests as well would seem impossible.

															While the Fourth Amendment denounces only unreasonable seizures,
unreasonableness often depends upon the means adopted. Here, the
seizure followed an unlawful arrest, and therefore became itself
unlawful -- as plainly unlawful as the seizure within the home so
vigorously denounced in Weeks v. United States, 232 U. S. 383 , 232 U. S. 391 , 232 U. S. 392 , 232 U. S.
393 .

															In Snyder v. United States, 285 Fed. 1, 2, the Court of
Appeals, Fourth Circuit, rejected evidence obtained by an
unwarranted arrest, and clearly announced some very wholesome
doctrine:

															"That an officer may not make an arrest for a misdemeanor not
committed in his presence, without a warrant, has been so
frequently decided as not to require citation of authority. It is
equally fundamental that a citizen may not be arrested on suspicion
of having committed a misdemeanor and have his person searched by
force, without a warrant of arrest. If, therefore, the arresting
officer in this case had no other justification for the arrest than
the mere suspicion that a bottle, only the neck of which he could
see protruding from the pocket of defendant's coat, contained
intoxicating liquor, then it would seem to follow without much
question that the arrest and search, without first having secured a
warrant, were illegal. And that his only justification was his
suspicion is admitted by the evidence of the arresting officer
himself. If the bottle had been empty, or if it had contained
anyone of a dozen innoxious liquids, the act of the officer would,
admittedly, have been an unlawful invasion of the personal liberty
of the defendant. That it happened in this instance to contain
whisky, we think, Page 267 U. S. 169 neither justifies the assault nor condemns the principle which
makes such an act unlawful."

															The validity of the seizure under consideration depends on the
legality of the arrest. This did not follow the seizure, but the
reverse is true. Plaintiffs in error were first brought within the
officers' power, and, while therein, the seizure took place. If an
officer, upon mere suspicion of a misdemeanor, may stop one on the
public highway, take articles away from him, and thereafter use
them as evidence to convict him of crime, what becomes of the
Fourth and Fifth Amendments?

															In Weeks v. United States, supra, through Mr. Justice
Day, this court said:

															"The effect of the Fourth Amendment is to put the courts of the
United States and Federal officials, in the exercise of their power
and authority, under limitations and restraints as to the exercise
of such power and authority, and to forever secure the people,
their persons, houses, papers and effects against all unreasonable
searches and seizures under the guise of law. This protection
reaches all alike, whether accused of crime or not, and the duty of
giving to it force and effect is obligatory upon all entrusted
under our Federal system with the enforcement of the laws. The
tendency of those who execute the criminal laws of the country to
obtain conviction by means of unlawful seizures and enforced
confessions, the latter often obtained after subjecting accused
persons to unwarranted practices destructive of rights secured by
the Federal Constitution, should find no sanction in the judgments
of the courts which are charged at all times with the support of
the Constitution and to which people of all conditions have a right
to appeal for the maintenance of such fundamental rights. . . . The
efforts of the courts and their officials to bring the guilty to
punishment, praiseworthy as they are, are not to be aided by the
sacrifice of those great principles established by years of
endeavor and suffering which have Page 267 U. S. 170 resulted in their embodiment in the fundamental law of the
land." Silverthorne Lumber Co. v. United States, 251 U.
S. 385 , 251 U. S.
391 :

															"The proposition could not be presented more nakedly. It is
that, although, of course, its seizure was an outrage which the
Government now regrets, it may study the papers before it returns
them, copy them, and then may use the knowledge that it has gained
to call upon the owners in a more regular form to produce them;
that the protection of the Constitution covers the physical
possession, but not any advantages that the Government can gain
over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U. S. 383 , to be sure, had
established that laying the papers directly before the grand jury
was unwarranted, but it is taken to mean only that two steps are
required instead of one. In our opinion, such is not the law. It
reduces the Fourth Amendment to a form of words. 232 U.S. 232 U. S. 393 . The essence
of a provision forbidding the acquisition of evidence in a certain
way is that not merely evidence so acquired shall not be used
before the court, but that it shall not be used at all. Of course,
this does not mean that the facts thus obtained become sacred and
inaccessible. If knowledge of them is gained from an independent
source, they may be proved like any others, but the knowledge
gained by the Government's own wrong cannot be used by it in the
way proposed." Gouled v. United States, 255 U.
S. 298 , and Amos v. United States, 255 U.
S. 313 , distinctly point out that property procured by
unlawful action of Federal officers cannot be introduced as
evidence.

															The arrest of plaintiffs in error was unauthorized, illegal and
violated the guarantee of due process given by the Fifth Amendment.
The liquor offered in evidence was obtained by the search which
followed this arrest, and was therefore obtained in violation of
their constitutional Page 267 U. S. 171 rights. Articles found upon or in the control of one lawfully
arrested may be used as evidence for certain purposes, but not at
all when secured by the unlawful action of a Federal officer.

															4. The facts known by the officers who arrested plaintiffs in
error were wholly insufficient to create a reasonable belief that
they were transporting liquor contrary to law. These facts were
detailed by Fred Cronenwelt, chief prohibition officer. His entire
testimony as given at the trial follows --

															"I am in charge of the Federal Prohibition Department in this
District. I am acquainted with these two respondents, and first saw
them on September 29, 1921, in Mr. Scully's apartment on Oakes
Street, Grand Rapids. There were three of them that came to Mr.
Scully's apartment, one by the name of Kruska, George Kiro and John
Carroll. I was introduced to them under the name of Stafford, and
told them I was working for the Michigan Chair Company, and wanted
to buy three cases of whisky, and the price was agreed upon. After
they thought I was all right, they said they would be back in half
or three-quarters of an hour; that they had to go out to the east
end of Grand Rapids, to get this liquor. They went away and came
back in a short time, and Mr. Kruska came upstairs and said they
couldn't get it that night; that a fellow by the name of Irving,
where they were going to get it, wasn't in, but they were going to
deliver it the next day, about ten. They didn't deliver it the next
day. I am not positive about the price. It seems to me it was
around $130 a case. It might be $135. Both respondents took part in
this conversation. When they came to Mr. Scully's apartment, they
had this same car. While it was dark and I wasn't able to get a
good look at this car, later, on the sixth day of October, when I
was out on the road with Mr. Scully, I was waiting on the highway
while he went to Reed's Lake to get a light Page 267 U. S. 172 lunch, and they drove by, and I had their license number and the
appearance of their car, and knowing the two boys, seeing them on
the 29th day of September, I was satisfied when I seen the car on
December 15th it was the same car I had seen on the 6th day of
October. On the 6th day of October, it was probably twenty minutes
before Scully got back to where I was. I told him the Carroll boys
had just gone toward Detroit and we were trying to catch up with
them and see where they were going. We did catch up with them
somewhere along by Ada, just before we got to Ada, and followed
them to East Lansing. We gave up the chase at East Lansing."

															"On the 15th of December, when Peterson and Scully and I
overhauled this car on the road, it was in the country, on Pike 16,
the road leading between Grand Rapids and Detroit. When we passed
the car, we were going toward Ionia, or Detroit, and the Kiro and
Carroll boys were coming towards Grand Rapids when Mr. Scully and I
recognized them and said 'there goes the Carroll brothers,' and we
went on still further in the same direction we were going and
turned around and went back to them; drove up to the side of them.
Mr. Scully was driving the car; I was sitting in the front seat,
and I stepped out on the running board and held out my hand and
said, 'Carroll, stop that car,' and they did stop it. John Kiro was
driving the car. After we got them stopped, we asked them to get
out of the car, which they did. Carroll referred to me and called
me by the name of 'Fred' just as soon as I got up to him. Raised up
the back part of the roadster; didn't find any liquor there; then
raised up the cushion; then I struck at the lazyback of the seat
and it was hard. I then started to open it up, and I did tear the
cushion some, and Carroll said, 'Don't tear the cushion; we have
only got six cases in there;' and I took out two bottles and found
out it was liquor; satisfied it was liquor. Mr. Peterson and a
fellow by the Page 267 U. S. 173 name of Gerald Donker came in with the two Carroll boys and the
liquor and the car to Grand Rapids. They brought the two defendants
and the car and the liquor to Grand Rapids. I and the other men
besides Peterson stayed out on the road, looking for other cars
that we had information were coming in. There was conversation
between me and Carroll before Peterson started for town with the
defendants. Mr. Carroll said, 'Take the liquor and give us one more
chance and I will make it right with you.' At the same time, he
reached in one of his trousers pockets and pulled out money; the
amount of it I don't know. I wouldn't say it was a whole lot. I saw
a ten dollar bill, and there was some other bills; I don't know how
much there was; it wasn't a large amount."

															"As I understand, Mr. Hanley helped carry the liquor from the
car. On the next day afterwards, we put this liquor in boxes, steel
boxes, and left it in the Marshal's vault, and it is still there
now. Mr. Hanley and Chief Deputy Johnson, some of the agents and
myself were there. Mr. Peterson was there the next day that the
labels were signed by the different officers; those two bottles,
Exhibits 'A' and 'B.'"

															"Q. Now, those two bottles, Exhibits 'A' and 'B,' were those the
two bottles you took out of the car out there, or were those two
bottles taken out of the liquor after it go up here?"

															"A. We didn't label them out on the road; simply found it was
liquor and sent it in, and this liquor was in Mr. Hanley's custody
that evening and during the middle of the next day when we checked
it over to see the amount of liquor that was there. Mr. Johnson and
I sealed the bottles and Mr. Johnson's name is on the label that
goes over the box with mine, and this liquor was taken out of the
case today. It was taken out for the purpose of analyzation. The
others were not broken until today. " Page 267 U. S. 174 "Q. And are you able to tell us, from the label and from the
bottles, whether it is part of the same liquor taken out of that
car? A. It has the appearance of it, yes sir. Those are the bottles
that were in there that Mr. Hanley said was gotten out of the
Carroll car."

															"[Cross-examination.] I think I was the first one to get back to
the Carroll car after it was stopped. I had a gun in my pocket; I
didn't present it. I was the first one to the car, and raised up
the back of the car, but the others were there shortly afterward.
We assembled right around the car immediately."

															"Q. And whatever examination and what investigation you made you
went right ahead and did it in your own way? A. Yes, sir."

															"Q. And took possession of it, arrested them, and brought them
in? A. Yes, sir."

															"Q. And at that time, of course, you had no search warrant? A.
No, sir. We had no knowledge that this car was coming through at
that particular time."

															"[Redirect examination.] The lazyback was awfully hard when I
struck it with my fist. It was harder than upholstery ordinarily is
in those backs; a great deal harder. It was practically solid.
Sixty-nine quarts of whiskey in one lazyback."

															The negotiation concerning three cases of whisky on September
29th was the only circumstance which could have subjected
plaintiffs in error to any reasonable suspicion. No whisky was
delivered, and it is not certain that they ever intended to deliver
any. The arrest came two and a half months after the negotiation.
Every act in the meantime is consistent with complete innocence.
Has it come about that merely because a man once agreed to deliver
whisky, but did not, he may be arrested whenever thereafter he
ventures to drive an automobile on the road to Detroit!

															5. When Congress has intended that seizures or arrests might be
made upon suspicion, it has been careful to say Page 267 U. S. 175 so. The history and terms of the Volstead Act are not consistent
with the suggestion that it was the purpose of Congress to grant
the power here claimed for enforcement officers. The facts known
when the arrest occurred were wholly insufficient to engender
reasonable belief that plaintiffs in error were committing a
misdemeanor, and the legality of the arrest cannot be supported by
facts ascertained through the search which followed.

															To me, it seems clear enough that the judgment should be
reversed.

															I am authorized to say that MR. JUSTICE SUTHERLAND concurs in
this opinion.