Protection From the Police
I
IF John Smith is clearly guilty of larceny, shall he be set free because policeman Jones violated rules in getting the evidence? As the protection of society against crime is not a game to whose rules the criminals adhere, one might expect the police to be unhampered by rules in fighting criminals. But there are rules, necessarily, and they can be invoked even by criminals.
John Cook, for example, sued officer Hastings for false imprisonment. Hastings answered that while he was patrolling his beat complaint came to him of a man who was grossly insulting women and children in a way that the legislature had made criminal; that he went to the place indicated, where he found Cook hiding behind a tree; that Cook refused to tell his name or his business and gave a palpably false explanation for his presence there; that he therefore believed Cook to be the offender and arrested him as part of his duty to protect the public. As these facts were not denied, the trial judge ruled that Hastings, having acted in good faith, was not liable to Cook. The supreme court, however, reversed this decision and held Hastings liable for false arrest, even though Cook was in fact the criminal, because Hastings had no written warrant to arrest Cook, nor was the offense committed in Hastings’s actual presence.
The same decision would probably have been rendered by the court of any state. It represents a well-established limitation upon the power of the police. Cook’s offense was only a misdemeanor. That is to say, it was punishable only by imprisonment in the county jail, not by sentence to the state penitentiary. Offenses punishable by death or imprisonment in the penitentiary rank as felonies. The rule is that, while any person may arrest without warrant for a felony, even a police officer must have a warrant to arrest for misdemeanor, unless it has been committed in his presence. In some states he cannot arrest without warrant even for misdemeanors committed in his presence, unless they be breaches of peace. Hastings, therefore, should have gone to some magistrate and secured a warrant for Cook’s arrest. Then, if he ever saw Cook again and still had the warrant and it was still valid, he could lawfully have made the arrest.
Another rule, universally accepted as salutary and desirable, is expressed in our constitutions, to the effect that the people shall forever be secure as to their persons, houses, papers, and effects against ‘unreasonable’ search and seizure, and that no warrant for search or arrest shall be issued except upon ‘probable cause’ supported by oath or affirmation. This rule too runs in favor of anyone injured, be he innocent or criminal. Even a police officer, if he makes an unreasonable search or unreasonable arrest, is liable in damages, and he is liable even though the search or the arrest reveals a criminal, just as policeman Hastings was. The criminal whom he has caught may come into court and protest, successfully, against the manner in which he was caught. Moreover, the officer may himself be punished as for crime, under certain circumstances. Such rules do exist, then, and the police are legally bound, under penalty, to observe them.
But if the police do apprehend a criminal, shall he go free because they did not follow the rules? One might expect a prompt negation. But there is more in the question than appears to a runner. If the police can successfully catch and convict criminals by violating the rules, will they not be tempted generally to ignore the rules? And if they ignore them where criminals are concerned will they not also ignore the rights and immunities of innocent citizens? Police who transgress the rules are, like officer Hastings, liable to suit. They may be disciplined by their superiors. If they oppress their employers, ‘ the people,’the people can successfully demand their immediate discharge. But is this sufficient really to protect the people?
The answer to the apparently simple question has in fact divided the nation. Shall the criminal go free because the police have misbehaved? A score of states have answered, ‘No — both must be punished.’ Some have not answered at all. But another score have freed the criminal, to the extent of holding that evidence illegally secured cannot be used to prove his guilt.
The theory of the judges in these latter states is obviously fear of the executive. Some allege that the constitutional prohibition against unreasonable search precludes use of the evidence. Others are more frank. They hark back to that period when government really lay in the hands of a class and the criminal courts were truly, though somewhat erratically, a shield of mass from class. This was the period when Dr. Horsley, Bishop of Rochester, could say in Parliament, ‘ What have the mass of the people to do with law, except to obey it ? ’ — the time when ' confessions ’ were practically rejected by courts because the employer class used its power so unfairly to obtain them. It was a period, moreover, when ‘the people’ had but little direct control of the executive, and their individual liberties were truly still precarious. Thus retrospective modern judges apparently apprehend that, given an inch, the police will take an ell. They foresee crude policemen invading harmless homes, or seizing or annoying innocent travelers, undeterred by the fear of punishment or the right of redress in the person offended. Accordingly, to forestall such activity, to protect us from our own police, they lay down the rule that illegal activity by its policemen shall profit society nothing in its war against crime.
II
To appreciate the answer which the judges of these states give, one must study their concrete decisions. For the sake of consistency, cases all from the same jurisdiction, Michigan, are here presented. Selected decisions from various states would give a more spectacular picture, but one less accurate. These cases nearly all happen to involve enforcement of the state Prohibition law. But the rules involved apply as well to the enforcement of any criminal law. Bootlegging and burglary are both felonies. If the bootlegger is freed because the police unlawfully found him out, the burglar too must be freed in like situation. The cases arise out of Prohibition enforcement simply because Prohibition enforcement touches so many people, provokes so much emotion, that the question demanded answer where before it had been tacitly ignored. In some states, indeed, what had been a negative answer before Prohibition was thereafter changed to an affirmative,
’Let him go free.’ But the doctrine was originated by the Federal courts before national Prohibition was contemplated, and the rule applies alike to every offender against society.
Note, then, the conviction and subsequent discharge of Adolf Preuss. The county sheriff had gone to Preuss’s house with a warrant to search for stolen beans. He did not find the beans, but he did find seven gallons of moonshine whiskey, which he seized and carried off as evidence. Preuss was indicted and eventually convicted of violation of the Prohibition law. He carried his case to the supreme court, however, and that tribunal reversed the conviction on the ground that the seizure of the evidence was unreasonable and therefore it should not have been used against him. ‘Except as he followed the strict mandate of his warrant,’said the court, ‘to search for and seize if found a described quantity of beans, the officer was a trespasser upon those premises.’ Not only was the state forbidden to avail itself of the evidence so seized; the officer could not even reveal to the jury what he saw while thus a trespasser.
An officer who has gone lawfully into a house to arrest a felon may search to some extent for evidence connected with the arrest. But, said Judge McDonald, of a particular case where the officer had entered with a warrant to arrest the defendant, ‘the right to arrest gave him lawful entry only to that part of the house which it was necessary for him to enter in order to serve his warrant. Here, where he was lawfully present, he could search for evidence of the crime for which the arrest was made, but further he could not go without invading the constitutional rights of the defendant. He and his officers did not gain lawful access to that part of the house where the white mule was kept. There they were trespassers. It follows that the liquor was unlawfully seized and that the circuit court was in error in permitting it to be used as evidence against the defendant. . . . The conviction is reversed.'
Of course an unlawful acquisition of evidence against a criminal cannot be made lawful by subsequently going through the proper formalities. The sheriff of Montcalm County went to Claude Alverson’s house to serve a legal paper upon him. Alverson was not at home and the sheriff broke in. For this entry the officer was undoubtedly liable to Alverson in a suit for damages and was possibly subject also to criminal prosecution. But he found within the house a complete whiskey-making outfit and a quantity of whiskey. Because the house was being used as a place of manufacture, the sheriff could have got a warrant, had he known the facts before he entered. Having thus learned the facts, he sent his deputy to get a warrant, by virtue of which he eventually carried off the still and the whiskey. Alverson’s subsequent conviction, however, was reversed by the supreme court on the ground that the search and the seizure really occurred before the warrant was issued and the illegality could not be cured.
Search warrants themselves are most carefully scrutinized. The commonwealth must prove affirmatively that the procedure of its officers was proper. If question of legality is raised, the state must prove itself right; if it fails, the evidence is suppressed without need for the criminal to prove illegality.
Warrants can be issued only upon affidavit showing reasonable cause to believe that the law is being violated. A mere oath that affiant so believes, or that the violation is ’a notorious fact,’ is not enough. Facts must be stated — facts strong enough to compel the magistrate to a similar opinion. And the one who knows the facts must appear in person before the magistrate. He cannot make his oath before some conveniently situated notary public and let a peace officer present it to the magistrate. He must go in person, and the facts to which he swears must be truly convincing.
If any of these requisites is lacking, the warrant is invalid, the search is ‘unreasonable,’ evidence thereby secured cannot be used, and anything seized — incriminating papers, forged securities, even liquor — may be returned to the lawbreaker.
A conviction has been reversed, and the lawbreaker discharged, because, though the evidence was secured under a written warrant, the affidavit upon which the warrant was issued was deficient in stating only that the affiant had bought liquor on the premises twenty days previous. The supreme court considered that facts which existed twenty days before the asking of a warrant were too remote to justify its issue. They declined to assume that conditions had not changed in the meantime. For the same reason, an affidavit stating that affiant “has seen persons drinking whiskey on the premises, has seen persons drunk on the premises, and has seen whiskey purchased on the premises’ was held insufficient because it did not state the date on which these things were seen.
These were not merely cases where the magistrate refused to issue a warrant on such an affidavit. On the contrary, the warrant had been issued, the facts verified the propriety of its issue, and the defendant was convicted. The upper court reversed the convictions on the ground that the warrants should not have been issued and that the technical insufficiency of the affidavits could not be cured by the reality of the defendants’ guilt.
Moreover, even if the affidavit be sufficient, a clerical failure to repeat the facts in the body of the warrant, or neglect to show the warrant to the owner of the premises so that he can read them, has been held to oblige the court to reverse a conviction.
This precision of rule and strict insistence on its observance by the agents of society have been somewhat relaxed in respect to search of automobiles. A police officer who turned the light of an electric torch into the tonneau of a car, without touching the car, was held justified in seizing burglars’ tools which he saw therein, and the conviction of the owner was sustained. And in general it is conceded that an automobile may be searched without any warrant if the police have legally arrested its occupant, or if they ‘reasonably’ believe that it is being used in violation of the law. But whether or not the searcher’s belief is reasonable depends upon the judge’s reaction to the pictured circumstances, and cannot be bolstered by the mere fact that it is in truth correct. Convictions resulting from ‘unreasonable’ molestation even of the guilty person will not be sustained.
Arrests and searches of the person are likewise scrutinized with sedulous care to render unprofitable any illegal police activity. For felonies and for any offense in the officer’s presence, arrest without a warrant is permissible. But again there must be reasonable ground to believe the arrested person guilty — reason for the belief over and above the mere fact of actual guilt. Mere suspicion, however correct, will not avail the officer or profit society.
To policeman Klumpel, sitting at headquarters, came an anonymous telephone message that one Harry Ward was coming in on a certain street car with a suitcase full of whiskey. It might have been a joke, but Klumpel already had some suspicion of the gentleman named and took a chance. When he found Ward he was not sure that he had just got off the street car, but it was obvious that Ward was carrying a heavy suitcase. When asked if he had an objection to showing the contents of the suitcase, Ward said that he had. Klumpel arrested him; the suitcase was full of whiskey and Ward was convicted. Three appellate judges thought Klumpel had insufficient ground for making the arrest, despite the accuracy of his suspicion, and urged that the conviction be upset. The others considered that the circumstances as a whole justified Klumpel’s belief. Had there been only the anonymous message, however, they would have agreed in upsetting the conviction. Even a telegram from a known police captain, reading, ‘ I hold warrant for Frank G. Krotzer charge making a false statement . . . arrest and advise,’ was considered by two judges in another case as insufficient to protect the officers who made the arrest from a suit for false imprisonment.
Or, had there been no telephone message, the conviction would not have stood. Mr. William Foreman stepped from an interurban car, carrying a grip. A policeman said, ‘Say, Bill, wait a minute. I want to talk to you.’ But Bill hurried into a hotel. The officer arrested him and found whiskey in the grip. In this case the upper court agreed that the trial judge should have instructed the jury not to convict the defendant. Even the fact that the arrested person is ‘intoxicated to a certain degree’ is said not to be reasonable ground for believing that he is carrying liquor externally. It was held improper, although the suspicion was correct, to arrest a certain Mr. Kamhout on that basis.
III
This meticulous protection of even the guilty in order to save the innocent from police oppression may have a base of clay. Certainly the superstructure is dubious.
Even the limitations upon the power of the police to make arrests — their personal liability even when they get the right man — seem anachronistic in these days of complete popular control of the executive. The true interest of society to-day might rather require that the officer who gets the criminal be protected. Were he protected if right, his liability to suit or discharge if wrong should sufficiently restrain undue activity against innocent citizens. In the words of a minority judge, ‘The officer has no judicial immunity for errors of judgment. He must be right or suffer. Therefore, if he is right by ultimate determination, he ought not to suffer, provided he has acted in good faith.’ And certainly when an officer has a right to arrest on ‘reasonable’ suspicion the guilt of an offender should not be wholly ignored in adjudging the reasonableness of his suspicion. Guilt often betrays itself in impalpable manifestations which convince the beholder of its existence but which he cannot so depict as to persuade a cold judicial mind — especially if the narration be the inarticulate speech of an $1800-ayear policeman.
But, whatever their merits, this rule of holding the officer liable, be he right or wrong, and the refusal of the judges to consider the guilt of the person arrested, are not confined to the courts of Michigan. They are the common law of the country. In Florida, for example, one finds a gun-toter successfully suing the policeman who arrested him because the officer, though right, had not reasonable ground for his belief. And even in England constables were held liable for arresting a man whom a woman pointed out as having tried to pick her pocket.
Where Michigan differs is in saying not only that the officer shall be liable but that no advantage shall accrue to society because of his illegal action — that the criminal must not be convicted thereby. Though this apotheosis of protection developed under Prohibition, the rule extends its shield to any type of criminal. The ‘equal protection’ upon which our law is based makes no distinction in the privileges and immunities of felons. For just this reason, that it does extend to every criminal, whatever his crime, many states reject, the practical exoneration of the criminal which in other states follows police neglect of rules. To use the terse phrase of Judge Cardozo, ‘The pettiest police officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crime the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed and the murderer goes free. Another search, once more against the law, discloses counterfeit money, or the implements of forgery. The absence of a warrant means the freedom of the forger. Like instances can be multiplied. We may not subject society to these dangers until the legislature has spoken with a clearer voice.’
Shall criminals be freed, that the police may be kept in bounds? The answer is an evaluation of two conflicting public interests — public interest in freedom from crime, and public interest in freedom from police oppression. Unless the legislature speaks, the interests must be weighed and the answer given by the courts. Need criminals be freed to protect us from the police? To answer, the facts of modern conditions must be considered and the balance read by the judges. There are no more honest eyes to see the facts, if they can, and no truer scales in which to weigh them than those of the judiciary, but on those scales should be legibly graven Beccaria’s warning: —
‘It is a false idea of utility which thinks more of the inconvenience of individuals than of the general inconvenience,’