KER V. CALIFORNIA, 374 U. S. 23 (1963)

Subscribe to Cases that cite 374 U. S. 23

U.S. Supreme Court

Ker v. California, 374 U.S. 23 (1963)

Ker v. California

No. 53

Argued December 11, 1962

Decided June 10, 1963

374 U.S. 23


1. The prohibition of the Fourth Amendment against unreasonable searches and seizures, which forbids the Federal Government to convict a man of crime by using evidence obtained from him by unreasonable search and seizure, is enforceable against the States through the Fourteenth Amendment by the same sanction of exclusion and by the application of the same constitutional standard prohibiting "unreasonable searches and seizures," as defined in the Fourth Amendment. Mapp v. Ohio, 367 U. S. 643. Pp. 374 U. S. 30-34.

(a) This Court's long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application is carried forward when that Amendment's proscriptions are enforced against the States through the Fourteenth Amendment. P. 374 U. S. 33.

(b) The reasonableness of a search is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the "fundamental criteria" laid down by the Fourth Amendment and in the opinions of this Court applying that Amendment, as distinguished from the exercise of its supervisory powers over federal courts; but findings of reasonableness by a trial court are respected only insofar as they are consistent with federal constitutional guarantees. P. 374 U. S. 33.

(c) The States are not precluded from developing working rules governing arrests, searches and seizures to meet "the practical demands of effective criminal investigation and law enforcement," provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. P. 374 U. S. 34.

2. Having reason to believe that one of the petitioners was selling marijuana and had just purchased some from a person who was known to be a dealer in marijuana, California police officers, without a search warrant, used a passkey to enter the apartment occupied

Page 374 U. S. 24

by petitioners, husband and wife, arrested them on suspicion of violating the State Narcotic Law, searched their apartment, and found three packages of marijuana, which they seized. At petitioners' trial, these packages of marijuana were admitted in evidence over petitioners' objection, and they were convicted. In affirming the convictions, the California District Court of Appeal found that there was probable cause for the arrests; that the entry into the apartment was for the purpose of arrest and was not unlawful; and that the search, being incident to the arrests, was likewise lawful and its fruits admissible in evidence against petitioners. Held: The judgment is affirmed. Pp. 374 U. S. 34-44.

195 Cal. App. 2d 246, 15 Cal. Rptr. 767, affirmed.

MR. JUSTICE CLARK delivered the opinion of the Court with reference to the standard by which state searches and seizures must be evaluated (Part I), together with an opinion applying that standard, in which MR. JUSTICE BLACK, MR. JUSTICE STEWART and MR. JUSTICE WHITE join (Parts II-V), and announced the judgment of the Court.

This case raises search and seizure questions under the rule of Mapp v. Ohio, 367 U. S. 643 (1961). Petitioners, husband and wife, were convicted of possession of marijuana in violation of § 11530 of the California Health and Safety Code. The California District Court of Appeal affirmed, 195 Cal.App.2d 246, 15 Cal.Rptr. 767, despite the contention of petitioners that their arrests in their

Page 374 U. S. 25

apartment without warrants lacked probable cause, [Footnote 1] and the evidence seized incident thereto and introduced at their trial was therefore inadmissible. The California Supreme Court denied without opinion a petition for hearing. This being the first case arriving here since our opinion in Mapp which would afford suitable opportunity for further explication of that holding in the light of intervening experience, we granted certiorari. 368 U.S. 974. We affirm the judgment before us.

The state courts' conviction and affirmance are based on these events, which culminated in the petitioners' arrests. Sergeant Cook of the Los Angeles County Sheriff's Office, in negotiating the purchase of marijuana from one Terrhagen, accompanied him to a bowling alley about 7 p.m. on July 26, 1960, where they were to meet Terrhagen's "connection." Terrhagen went inside and returned shortly, pointing to a 1946 DeSoto as his "connection's" automobile and explaining that they were to meet him "up by the oil fields" near Fairfax and Slauson Avenues in Los Angeles. As they neared that location, Terrhagen again pointed out the DeSoto traveling ahead of them, stating that the "connection" kept his supply of narcotics "somewhere up in the hills." They parked near some vacant fields in the vicinity of the intersection of Fairfax and Slauson, and, shortly thereafter, the DeSoto reappeared and pulled up beside them. The deputy then recognized the driver as one Roland Murphy, whose "mug" photograph he had seen and whom he knew from other narcotics officers to be a large-scale seller of marijuana currently out on bail in connection with narcotics charges.

Page 374 U. S. 26

Terrhagen entered the DeSoto and drove off toward the oil fields with Murphy, while the Sergeant waited. They returned shortly, Terrhagen left Murphy's car carrying a package of marijuana and entered his own vehicle, and they drove to Terrhagen's residence. There, Terrhagen cut one pound of marijuana and gave it to Sergeant Cook, who had previously paid him. The Sergeant later reported this occurrence to Los Angles County Officers Berman and Warthen, the latter of whom had observed the occurrences as well.

On the following day, July 27, Murphy was placed under surveillance. Officer Warthen, who had observed the Terrhagen-Murphy episode the previous night, and Officer Markman were assigned this duty . At about 7 p.m. that evening, they followed Murphy's DeSoto as he drove to the same bowling alley in which he had met Terrhagen on the previous evening. Murphy went inside, emerged in about 10 minutes, and drove to a house where he made a brief visit. The officers continued to follow him but, upon losing sight of his vehicle, proceeded to the vicinity of Fairfax and Slauson Avenues, where they parked. There, immediately across the street from the location at which Terrhagen and Sergeant Cook had met Murphy on the previous evening, the officers observed a parked automobile whose lone occupant they later determined to be the petitioner George Douglas Ker.

The officers then saw Murphy drive past them. They followed him but lost sight of him when he extinguished his lights and entered the oil fields. The officers returned to their vantage point and, shortly thereafter, observed Murphy return and park behind Ker. From their location approximately 1,000 feet from the two vehicles, they watched through field glasses. Murphy was seen leaving his DeSoto and walking up to the driver's side of Ker's car, where he "appeared to have conversation with him." It was shortly before 9 p.m., and the distance in the

Page 374 U. S. 27

twilight was too great for the officers to see anything pass between Murphy and Ker or whether the former had anything in his hands as he approached.

While Murphy and Ker were talking, the officers had driven past them in order to see their faces closely and in order to take the license number from Ker's vehicle. Soon thereafter, Ker drove away, and the officers followed him, but lost him when he made a U-turn in the middle of the block and drove in the opposite direction. Now, having lost contact with Ker, they checked the registration with the Department of Motor Vehicles and ascertained that the automobile was registered to Douglas Ker at 4801 Slauson. They then communicated this information to Officer Berman, within 15 to 30 minutes after observing the meeting between Ker and Murphy. Though officers Warthen and Markman had no previous knowledge of Ker, Berman had received information at various times, beginning in November of 1959, that Ker was selling marijuana from his apartment and that "he was possibly securing this Marijuana from Ronnie Murphy, who is the alias of Roland Murphy." In early 1960, Officer Berman had received a "mug" photograph of Ker from the Inglewood Police Department. He further testified that, between May and July 27, 1960, he had received information as to Ker from one Robert Black, who had previously given information leading to at least three arrests and whose information was believed by Berman to be reliable. According to Officer Berman, Black had told him on four or five occasions after May, 1960, that Ker and others, including himself, had purchased marijuana from Murphy. [Footnote 2]

Page 374 U. S. 28

Armed with the knowledge of the meeting between Ker and Murphy and with Berman's information as to Ker's dealings with Murphy, the three officers and a fourth, Officer Love, proceeded immediately to the address which they had obtained through Ker's license number. They found the automobile which they had been following -- and which they had learned was Ker's -- in the parking lot of the multiple-apartment building and also ascertained that there was someone in the Kers' apartment. They then went to the office of the building manager and obtained from him a passkey to the apartment. Officer Markman was stationed outside the window to intercept any evidence which might be ejected, and the other three officers entered the apartment. Officer Berman unlocked and opened the door, proceeding quietly, he testified, in order to prevent the destruction of evidence, [Footnote 3] and found petitioner George Ker sitting in the living room. Just as he identified himself, stating that "We are Sheriff's Narcotics Officers, conducting a narcotics investigation," petitioner Diane Ker emerged from the kitchen. Berman testified that he repeated his identification to her and immediately walked to the kitchen. Without entering, he observed through the open doorway a small scale atop the kitchen sink, upon which lay a "brick-like-brick-shaped package containing the green leafy substance" which he recognized as marijuana. He beckoned the petitioners into the kitchen where, following their denial of knowledge of the contents of the two and two-tenths pound package and

Page 374 U. S. 29

failure to answer a question as to its ownership, he placed them under arrest for suspicion of violating the State Narcotic Law. Officer Markman testified that he entered the apartment approximately "a minute, minute and a half" after the other officers, at which time Officer Berman was placing the petitioners under arrest. As to this sequence of events, petitioner George Ker testified that his arrest took place immediately upon the officers' entry and before they saw the brick of marijuana in the kitchen.

Subsequent to the arrest and the petitioners' denial of possession of any other narcotics, the officers, proceeding without search warrants, found a half-ounce package of marijuana in the kitchen cupboard and another atop the bedroom dresser. Petitioners were asked if they had any automobile other than the one observed by the officers, and George Ker replied in the negative, while Diane remained silent. On the next day, having learned that an automobile was registered in the name of Diane Ker, Officer Warthen searched this car without a warrant, finding marijuana and marijuana seeds in the glove compartment and under the rear seat. The marijuana found on the kitchen scale, that found in the kitchen cupboard and in the bedroom, and that found in Diane Ker's automobile [Footnote 4] were all introduced into evidence against the petitioners.

The California District Court of Appeal in affirming the convictions found that there was probable cause for the arrests; that the entry into the apartment was for the purpose of arrest and was not unlawful; and that the search being incident to the arrests was likewise lawful and its fruits admissible in evidence against petitioners. These conclusions were essential to the affirmance, since the California Supreme Court in 1955 had held that evidence

Page 374 U. S. 30

obtained by means of unlawful searches and seizures was inadmissible in criminal trials. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. The court concluded that, in view of its findings and the implied findings of the trial court, this Court's intervening decision in Mapp v. Ohio, supra, did "not justify a change in our original conclusion." 195 Cal.App.2d, at 257, 15 Cal.Rptr., at 773.


In Mapp v. Ohio, at 367 U. S. 646-647, 367 U. S. 657, we followed Boyd v. United States, 116 U. S. 616, 116 U. S. 630 (1886), which held that the Fourth Amendment, [Footnote 5] implemented by the self-incrimination clause of the Fifth, [Footnote 6] forbids the Federal Government to convict a man of crime by using testimony or papers obtained from him by unreasonable searches and seizures as defined in the Fourth Amendment. We specifically held in Mapp that this constitutional prohibition is enforceable against the States through the Fourteenth Amendment. [Footnote 7] This means, as we said in Mapp, that the Fourth Amendment "is enforceable against them (the states) by the same sanction of exclusion as is used against the Federal Government," by the application of the same constitutional standard prohibiting "unreasonable

Page 374 U. S. 31

searches and seizures." 367 U.S. at 367 U. S. 655. We now face the specific question as to whether Mapp requires the exclusion of evidence in this case which the California District Court of Appeals has held to be lawfully seized. It is perhaps ironic that the initial test under the Mapp holding comes from California, whose decision voluntarily to adopt the exclusionary rule in 1955 has been commended by us previously. See Mapp v. Ohio, supra, at 367 U. S. 651-652; Elkins v. United States, 364 U. S. 206, 364 U. S. 220 (1960).

Preliminary to our examination of the search and seizures involved here, it might be helpful for us to indicate what was not decided in Mapp. First, it must be recognized that the

"principles governing the admissibility of evidence in federal criminal trials have not been restricted . . . to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts . . . this Court has . . . formulated rules of evidence to be applied in federal criminal prosecutions."

McNabb v. United States, 318 U. S. 332, 318 U. S. 341 (1943); cf. Miller v. United States, 357 U. S. 301 (1958); Nardone v. United States, 302 U. S. 379 (1937). Mapp, however, established no assumption by this Court of supervisory authority over state courts, cf. Cleary v. Bolger, 371 U. S. 392, 371 U. S. 401 (1963), and, consequently, it implied no total obliteration of state laws relating to arrests and searches in favor of federal law. Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of Elkins v. United States, supra, at 364 U. S. 221, that "a healthy federalism depends upon the avoidance of needless conflict between state and federal courts" by itself urging that

"[f]ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches."

367 U.S. at 367 U. S. 658. (Emphasis added.) Second, Mapp did not attempt the impossible task of laying

Page 374 U. S. 32

down a "fixed formula" for the application in specific cases of the constitutional prohibition against unreasonable searches and seizures; it recognized that we would be "met with "recurring questions of the reasonableness of searches," and that, "at any rate, "[r]easonableness is in the first instance for the [trial court] to determine," id., at 367 U. S. 653, thus indicating that the usual weight be given to findings of trial courts.

Mapp, of course, did not lend itself to a detailed explication of standards, since the search involved there was clearly unreasonable, and bore no stamp of legality even from the Ohio Supreme Court. Id., at 367 U. S. 643-645. This is true also of Elkins v. United States, where all of the courts assumed the unreasonableness of the search in question and this Court "invoked" its "supervisory power over the administration of criminal justice in the federal courts," 364 U.S. at 364 U. S. 216, in declaring that the evidence so seized by state officers was inadmissible in a federal prosecution. The prosecution being in a federal court, this Court of course announced that

"[t]he test is one of federal law, neither enlarged by what one state court may have countenanced nor diminished by what another may have colorably suppressed."

Id. at 364 U. S. 224. Significant in the Elkins holding is the statement, apposite here, that

"it can fairly be said that, in applying the Fourth Amendment, this Court has seldom shown itself unaware of the practical demands of effective criminal investigation and law enforcement."

Id. at 364 U. S. 222.

Implicit in the Fourth Amendment's protection from unreasonable searches and seizures is its recognition of individual freedom. That safeguard has been declared to be "as of the very essence of constitutional liberty," the guaranty of which "is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen. . . ." Gouled v. United States, 255 U. S. 298, 255 U. S. 304 (1921); @cf. 287 U. S. 65-68 (1932). While the language of the Amendment is "general," it

"forbids every search that is unreasonable; it protects all, those suspected or known as to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made. . . ."

Go-Bart Importing Co. v. United States, 282 U. S. 344, 282 U. S. 357 (1931). MR. JUSTICE Butler there stated for the Court that

"[t]he Amendment is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted."

Ibid. He also recognized that "[t]here is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances." Ibid.; see United States v. Rabinowitz, 339 U. S. 56, 339 U. S. 63 (1950); Rios v. United States, 364 U. S. 253, 364 U. S. 255 (1960).

This Court's long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application is carried forward when that Amendment's proscriptions are enforced against the States through the Fourteenth Amendment. And, although the standard of reasonableness is the same under the Fourth and Fourteenth Amendments, the demands of our federal system compel us to distinguish between evidence held inadmissible because of our supervisory powers over federal courts and that held inadmissible because prohibited by the United States Constitution. We reiterate that the reasonableness of a search is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the "fundamental criteria" laid down by the Fourth Amendment and in opinions of this Court applying that Amendment. Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees. As we have stated above and in other cases involving

Page 374 U. S. 34

federal constitutional rights, findings of state courts are by no means insulated against examination here. See, e.g., Spano v. New York, 360 U. S. 315, 360 U. S. 316 (1959); Thomas v. Arizona, 356 U. S. 390, 356 U. S. 393 (1958); Pierre v. Louisiana, 306 U. S. 354, 306 U. S. 358 (1939). While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental -- i.e., constitutional -- criteria established by this Court have been respected. The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet "the practical demands of effective criminal investigation and law enforcement" in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. See Jones v. United States, 362 U. S. 257 (1960). Such a standard implies no derogation of uniformity in applying federal constitutional guarantees, but is only a recognition that conditions and circumstances vary just as do investigative and enforcement techniques.

Applying this federal constitutional standard we proceed to examine the entire record including the findings of California's courts to determine whether the evidence seized from petitioners was constitutionally admissible under the circumstances of this case.


The evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. The lawfulness of the arrest without warrant, in turn, must be based upon

Page 374 U. S. 35

probable cause, which exists

"where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."

Brinegar v. United States, 338 U. S. 160, 338 U. S. 175-176 (1949), quoting from Carroll v. United States, 267 U. S. 132, 267 U. S. 162 (1925); accord, People v. Fischer, 49 Cal.2d 442, 317 P.2d 967 (1957); Bompensiero v. Superior Court, 44 Cal.2d 178, 281 P.2d 250(1955). The information within the knowledge of the officers at the time they arrived at the Kers' apartment, as California's courts specifically found, clearly furnished grounds for a reasonable belief that petitioner George Ker had committed and was committing the offense of possession of marijuana. Officers Markman and Warthen observed a rendezvous between Murphy and Ker on the evening of the arrest which was a virtual reenactment of the previous night's encounter between Murphy, Terrhagen and Sergeant Cook, which concluded in the sale by Murphy to Terrhagen and the Sergeant of a package of marijuana of which the latter had paid Terrhagen for one pound which he received from Terrhagen after the encounter with Murphy. To be sure, the distance and lack of light prevented the officers from seeing and they did not see any substance pass between the two men, but the virtual identity of the surrounding circumstances warranted a strong suspicion that the one remaining element -- a sale of narcotics -- was a part of this encounter as it was the previous night. But Ker's arrest does not depend on this single episode with Murphy. When Ker's U-turn thwarted the officer's pursuit, they learned his name and address from the Department of Motor Vehicles and reported the occurrence to Officer Berman. Berman, in turn, revealed information from an informer whose reliability had been tested previously, as

Page 374 U. S. 36

well as from other sources, not only that Ker had been selling marijuana from his apartment but also that his likely source of supply was Murphy himself. That this information was hearsay does not destroy its role in establishing probable cause. Brinegar v. United States,supra. In Draper v. United States, 358 U. S. 307 (1959), we held that information from a reliable informer, corroborated by the agents' observations as to the accuracy of the informer's description of the accused and of his presence at a particular place, was sufficient to establish probable cause for an arrest without warrant. [Footnote 8] The corroborative elements in Draper were innocuous in themselves, but here, both the informer's tip and the personal observations connected Ker with specific illegal activities involving the same man, Murphy, a known marijuana dealer. To say that this coincidence of information was sufficient to support a reasonable belief of the officers that Ker was illegally in possession of marijuana is to indulge in understatement.

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers entered the apartment to arrest her husband, was nevertheless present at the time of her arrest. Upon their entry and announcement of their identity, the officers were met not only by George Ker, but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the brick-shaped package of marijuana in plain view. Even assuming that her presence in

Page 374 U. S. 37

a small room with the contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers' belief that she was in joint possession with her husband, that fact was accompanied by the officers' information that Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that, at the time of her arrest, there were not sufficient grounds for a reasonable belief that Drane Ker, as well as her husband, as committing the offense of possession of marijuana in the presence of the officers.


It is contended that the lawfulness of the petitioners arrests, even if they were based upon probable cause, was vitiated by the method of entry. This Court, in cases under the Fourth Amendment, was long recognized that the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution. Miller v . United States, supra; United States v. Di Re, 332 U. S. 581 (1948); Johnson v. United States, 333 U. S. 10, 333 U. S. 15, n. 5 (1948). A fortiori, the lawfulness of these arrests by state officers for state offenses is to be determined by California law. California Penal Code, § 844, [Footnote 9] permits peace officers to break into a dwelling place for the purpose of arrest after demanding admittance and explaining their purpose. Admittedly the officers did not comply with the terms of this statute since they entered quietly and without announcement, in order to prevent the destruction of contraband. The California District Court of Appeal,

Page 374 U. S. 38

however, held that the circumstances here came within a judicial exception which had been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146 Cal.App.2d 630, 304 P.2d 1 75 (1956); People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, cert. denied, 352 U.S. 858 (1956), and that the noncompliance was therefore lawful.

Since the petitioner's federal constitutional protection from unreasonable searches and seizures by police officers is here to be determined by whether the search was incident to a lawful arrest, we are warranted in examining that arrest to determine whether, notwithstanding its legality under state law, the method of entering the home may offend federal constitutional standards of reasonableness, and therefore vitiate the legality of an accompanying search. We find no such offensiveness on the facts here. Assuming that the officers' entry by use of a key obtained from the manager is the legal equivalent of a "breaking," see Keiningham v. United States, 109 U.S.App.D.C. 272, 276, 287 F.2d 126, 130 (1960), it has been recognized from the early common law that such breaking is permissible in executing an arrest under certain circumstances. See Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 800-806 (1924). Indeed, 18 U.S.C. § 3109, [Footnote 10] dealing with the execution of search warrants by federal officers, authorizes breaking of doors in words very similar to those of the California statute, both statutes including a requirement of notice of authority and purpose. In Miller v. United States, supra, this Court held unlawful an arrest, and therefore its accompanying search, on the ground that the District of

Page 374 U. S. 39

Columbia officers before entering a dwelling did not fully satisfy the requirement of disclosing their identity and purpose. The Court stated that

"the lawfulness of the arrest without warrant is to be determined by reference to state law. . . . By like reasoning the validity of the arrest of petitioner is to be determined by reference to the law of the District of Columbia."

357 U.S. at 357 U. S. 305-306. The parties there conceded and the Court accepted that the criteria for testing the arrest under District of Columbia law were "substantially identical" to the requirements of § 3109. Id. at 357 U. S. 306. Here, however, the criteria under California law clearly include an exception to the notice requirement where exigent circumstances are present. Moreover, insofar as violation of a federal statute required the exclusion of evidence in Miller, the case is inapposite for state prosecutions, where admissibility is governed by constitutional standards. Finally, the basis of the judicial exception to the California statute, as expressed by Justice Traynor in People v. Maddox, 46 Cal.2d at 306, 294 P.2d, at 9, effectively answers the petitioners' contention:

"It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make a reasonable search, his entry and his search are not unreasonable. Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844. Moreover, since the demand and explanation requirements

Page 374 U. S. 40

of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. (Read v. Case, 4 Conn. 166, 170 [10 Am.Dec. 110]; see Restatement, Torts, § 206, comment d.) Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance."

No such exigent circumstances as would authorize noncompliance with the California statute were argued in Miller, and the Court expressly refrained from discussing the question, citing the Maddox case without disapproval. 357 U.S. at 357 U. S. 309. [Footnote 11] Here justification for the officers' failure to give notice is uniquely present. In addition to the officers' belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police. [Footnote 12] We therefore hold that, in the particular

Page 374 U. S. 41

circumstances of this case, the officers' method of entry, sanctioned by the law of California, was not unreasonable under the standards of the Fourth Amendment as applied to the States through the Fourteenth Amendment.


Having held the petitioners' arrests lawful, it remains only to consider whether the search which produced the evidence leading to their convictions was lawful as incident to those arrests. The doctrine that a search without warrant may be lawfully conducted if incident to a lawful arrest has long been recognized as consistent with the Fourth Amendment's protection against unreasonable searches and seizures. See Marron v. United States, 275 U. S. 192 (1927); Harris v. United States, 331 U. S. 145 (1947); Abel v. United States, 362 U. S. 217 (1960); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Cal.L.Rev. 474, 490-493 (1961). The cases have imposed no requirement that the arrest be under authority of an arrest warrant, but only that it be lawful. See Marron v. United States, supra, at 275 U. S. 198-199; United States v. Rabinowitz, supra, at 339 U. S. 61; cf. Agnello v. United States, 269 U. S. 20, 269 U. S. 30-31 (1925). The question remains whether the officers' action here exceeded the recognized bounds of an incidental search.

Petitioners contend that the search was unreasonable in that the officers could practicably have obtained a search warrant. The practicability of obtaining a warrant is not the controlling factor when a search is sought to be justified as incident to arrest, United States v. Rabinowitz,

Page 374 U. S. 42

supra; but we need not rest the validity of the search here on Rabinowitz, since we agree with the California court that time clearly was of the essence. The officers' observations and their corroboration, which furnished probable cause for George Ker's arrest, occurred at about 9 p.m., approximately one hour before the time of arrest. The officers had reason to act quickly because of Ker's furtive conduct and the likelihood that the marijuana would be distributed or hidden before a warrant could be obtained at that time of night. [Footnote 13] Thus, the facts bear no resemblance to those in Trupiano v. United States, 334 U. S. 699 (1948), where federal agents for three weeks had been in possession of knowledge sufficient to secure a search warrant.

The search of the petitioners' apartment was well within the limits upheld in Harris v. United States, supra, which also concerned a private apartment dwelling. The evidence here, unlike that in Harris, was the instrumentality of the very crime for which petitioners were arrested, and the record does not indicate that the search here was an extensive in time or in area as that upheld in Harris.

The petitioners' only remaining contention is that the discovery of the brick of marijuana cannot be justified as incidental to arrest since it preceded the arrest. This contention is, of course, contrary to George Ker's testimony, but we reject it in any event. While an arrest may not be used merely as the pretext for a search without warrant, the California court specifically found and the record supports both that the officers entered the apartment for

Page 374 U. S. 43

the purpose of arresting George Ker and that they had probable cause to make that arrest prior to the entry. [Footnote 14] We cannot say that it was unreasonable for Officer Berman, upon seeing Diane Ker emerge from the kitchen, merely to walk to the doorway of that adjacent room. We thus agree with the California court's holding that the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view. United States v. Lee, 274 U. S. 559 (1927); United States v. Lefkowitz, 285 U. S. 452, 285 U. S. 465 (1932); People v. West, 144 Cal.App.2d 214, 300 P.2d 729 (1956). Therefore, while California law does not require that an arrest precede an incidental search as long as probable cause exists at the outset, Wilson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36 (1956), the California court did not rely on that rule and we need not reach the question of its status under the Federal Constitution.


The petitioners state and the record bears out that the officers searched Diane Ker's automobile on the day subsequent to her arrest. The reasonableness of that search, however, was not raised in the petition for certiorari, nor was it discussed in the brief here. Ordinarily "[w]e do not reach for constitutional questions not raised by the parties," Mazer v. Stein, 347 U. S. 201, 347 U. S. 206, n. 5 (1954), nor extend our review beyond those specific federal questions

Page 374 U. S. 44

properly raised in the state court. The record gives no indication that the issue was raised in the trial court or in the District Court of Appeal, the latter court did not adjudicate it and we therefore find no reason to reach it on the record. [Footnote 15]

For these reasons, the judgment of the California District Court of Appeal is affirmed.


[Footnote 1]

This contention was initially raised prior to the trial. Section 995, California Penal Code, provides for a motion to set aside the information on the ground that the defendant has been committed without probable cause. Evidence on that issue was presented out of the presence of the jury, and, following the court's denial of the motion, the petitioners were tried and convicted by the jury.

[Footnote 2]

During the hearing on the § 995 motion, see note 1 supra, Black testified for the defense, admitting that he knew the petitioners but denying that he gave Officer Berman information about George Ker. Black first denied, but then admitted, that he had met with Officer Berman and another officer in whose presence Berman said the information about Ker was given.

[Footnote 3]

Arresting Officers Berman and Warthen had been attached to the narcotics detail of the Los Angeles County Sheriff's office for three and four years, respectively. Each had participated in hundreds of arrests involving marijuana. Warthen testified that, on "many, many occasions" in his experience with narcotics arrests,

"persons have flushed narcotics down toilets, pushed them down drains and sinks and many other methods of getting rid of them prior to my entrance. . . ."

[Footnote 4]

For the reasons discussed in 374 U. S. we find that the validity of the search of the automobile is not before us and we therefore do not pass on it.

[Footnote 5]

"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 persons or things to be seized."

[Footnote 6]

"No person . . . shall be compelled in any criminal case to be a witness against himself. . . ."

[Footnote 7]

Our holding as to enforceability of this federal constitutional rule against the States had its source in the following declaration in Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27-28 (1949):

"The security of one's privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is . . . implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause."

[Footnote 8]

In Draper, the arrest upon probable cause was authorized under 26 U.S.C. § 7607, authorizing narcotics agents to make an arrest without warrant if they have "reasonable grounds to believe that the person to be arrested has committed or is committing such violation." Under § 836, California Penal Code, an officer may arrest without a warrant if he has "reasonable cause to believe that the person to be arrested has committed a felony. . . ."

[Footnote 9]

"To make an arrest, . . . in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which . . . [he has] reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired."

[Footnote 10]

"The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."

[Footnote 11]

Nor has the Court rejected the proposition that noncompliance may be reasonable in exigent circumstances subsequent to Miller. In Wong Sun v. United States, 371 U. S. 471 (1963), the Court held that federal officers had not complied with § 3109 in executing an arrest . There, the Court noted that, in Miller, it had reserved the question of an exception in exigent circumstances and stated that,

"[h]ere, as in Miller, the Government claims no extraordinary circumstances -- such as the imminent destruction of vital evidence, or the need to rescue a victim in peril -- . . . which excused the officer's failure truthfully to state his mission before he broke in."

Id. at 371 U. S. 483-484.

[Footnote 12]

A search of the record with the aid of hindsight may lend some support to the conclusion that, contra the reasonable belief of the officers, petitioners may not have been prepared for an imminent visit from the police. It goes without saying that, in determining the lawfulness of entry and the existence of probable cause, we may concern ourselves only with what the officers had reason to believe at the time of their entry. Johnson v. United States, 333 U. S. 10, 333 U. S. 17 (1948). As the Court said in United States v. Di Re, 332 U. S. 581, 332 U. S. 595 (1948), "a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from" what is dug up subsequently. (Emphasis added.)

[Footnote 13]

In cases in which a search could not be regarded as incident to arrest because the petitioner was not present at the time of the entry and search, the absence of compelling circumstances, such as the threat of destruction of evidence, supported the Court's holdings that searches without warrants were unconstitutional. See Chapman v. United States, 365 U. S. 610, 365 U. S. 615 (1961); United States v. Jeffers, 342 U. S. 48, 342 U. S. 52 (1951); Taylor v. United States, 286 U. S. 1, 286 U. S. 5 (1932).

[Footnote 14]

Compare Johnson v. United States, note 12 supra, at 374 U. S. 40. There, the Court held that a search could not be justified as incident to arrest, since the officers, prior to their entry into a hotel room, had no probable cause for the arrest of the occupant. The Court stated that

"[a]n officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion."

Here, of course, probable cause for the arrest of petitioner George Ker provided that valid basis.

[Footnote 15]

The record shows that petitioners made no objection to the admission of any of the evidence, thus failing to observe a state procedural requirement. People v. Brittain, 149 Cal.App.2d 201, 308 P.2d 38 (1957); see Mapp v. Ohio, supra, at 367 U. S. 659, n. 9. However, the District Court of Appeal passed on the issue of the narcotics seized in the apartment, presumably on the ground that petitioners preserved that question by their motion under § 995, California Penal Code, which was directed toward the principal objection to that search -- the alleged lack of probable cause. While "[t]here can be no question as to the proper presentation of a federal claim when the highest state court passes on it," Raley v. Ohio, 360 U. S. 423, 360 U. S. 436(1959), there is no indication in the court's opinion that it passed on the issue of the search of the automobile, nor is there any indication in the petitioners' briefs in that court that the issue was presented.

ChanRobles Legal Resources:

ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review :

ChanRobles MCLE On-line

ChanRobles Lawnet Inc. - ChanRobles MCLE On-line :