Vanderbilt Law Review Volume 18 Issue 1 Issue 1 - December 1964 Article 1 12-1964 Federal Power To Seize and Search Without Warrant Philip M. Carden Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Law Enforcement and Corrections Commons Recommended Citation Philip M. Carden, Federal Power To Seize and Search Without Warrant, 18 Vanderbilt Law Review 1 (1964) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol18/iss1/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT LAW REVIEW VOLUME 18 DEcmmm, 1964 NUMBER 1 Federal Power To Seize and Search Without Warrant Philip M. Carden* Mr. Garden here explores the history and development of the power of federal officers to seize and search without warrant. The study is divided into the power to search persons, places, vehicles, and to seize things The author concludes that, with a limited exception, no federal power of search or seizure of persons or property without prior special warrantcan be derived from the federal constitution. Finally,the author suggests that the Supreme Court may refuse to follow its dicta uphold- ing the federal power to search and seize without warrant if the proper case is brought before it. INTRODUCIION Federal law enforcement officers have power' to seize persons; 2 to search them,3 their body orifices,4 blood vessels,5 pockets, 6 pocket- books, 7 brief cases,8 automobiles,9 fields,' 0 dwellings,1 offices,12 hotel *Member, Tennessee Bar. 1. Some judges and text writers refer blithely to an officer's "right" to search and seize. For present purposes, however, the word "right" will be reserved for reference to those rights of the individual that are protected by the Constitution against infringe- ment by government. On the other hand, the word "power" will be used in the sense of governmental power having some legal sanction and not to the naked power an individual police officer can exert merely because he has weapons. 2. Draper v. United States, 358 U.S. 307 (1959). 3. ibid. 4. Blackford v. United States, 247 F.2d 745 (9th Cir. 1957), cert. denied, 356 U.S. 914 (1958). 5. Breithaupt v. Abram, 352 U.S. 432 (1957). Although this case involved state officers, the state and federal standards are now said to be the same. Ker v. California, 374 U.S. 23 (1963). 6. Charles v. United States, 278 F.2d 386 (9th Cir.), cert. denied, 364 U.S. 831 (1960). 7. Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951), cert. denied, 342 U.S. 926 (1952). 8. Draper v. United States, supra note 2. 9. Brinegar v. United States, 338 U.S. 160 (1949). 10. Hester v. United States, 265 U.S. 57 (1924). 11. Harris v. United States, 331 U.S. 145 (1947). 12. United States v. Rabinowitz, 339 U.S. 56 (1950). VANDERBILT LAW REVIEW [ VOL. 18 rooms, 13 closets,'14 beds,15 safes and filing cabinets, 16 nooks and cran- nies;1V and to seize their papers and effects, all without special war- rants. "Such is the power, and, therefore, one would naturally expect that the law to warrant it should be clear in proportion as the power is exorbitant. If it is law, it will be found in our books; if it is not to be found there, it is not law."18 As the first seventeen footnotes indicate, the law is now to be found in the books, but the questions are: (1) Who put it there? (2) What books did he find it in? (3) Is it clear in proportion as the power is exorbitant? For purposes of seeking the answers to those questions, it may be well to subdivide the power into its different applications as follows: A. The power to seize persons (arrest) B. The power to search persons C. The power to search places (1) Dwelling houses (2) Other houses (3) Open fields D. The power to search vehicles E. The power to seize things The sources of these powers will be sought, first, by reference to the decisions of the Supreme Court of the United States, second, by reference to federal statutes, and, third, from the Constitution and its history. I. SUPREME COURT CASES A. Seizure of Persons The last case, as of this writing,19 in which the Supreme Court of the United States upheld an arrest by a federal officer without a warrant was Draper v. United States.20 The Court's discussion of this power in its entirety follows: 13. Abel v. United States, 362 U.S. 217 (1960). 14. Marron v. United States, 275 U.S. 192 (1927). 15. Harris v. United States, supra note 11. 16. United States v. Rabinowitz, supra note 12. 17. Harris v. United States, supra note 11. 18. Boyd v. United States, 116 U.S. 616, 627 (1886), quoting from Lord Camden's opinion in Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (1765). 19. Memorandum cases have not been surveyed. 20. Supra note 2. 1964] POWER TO SEIZE AND SEARCH 26 U.S.C. (Supp. V) § 7607, added by § 104(a) of the Narcotic Control Act of 1956, 70 Stat. 570, provides, in pertinent part: "The Commissioner . and agents, of the Bureau of Narcotics . may.... "(2) make arrests without warrant for violations of any law of the United States relating to narcotic drugs . where the violation is com- mitted in the presence of the person making the arrest or where such person has reasonable grounds to believe that the person to be arrested has committed or is committing such violation." The crucial question for us then is whether knowledge of the related facts and circumstances gave Marsh "probable cause" within the meaning of the Fourth Amendment, and "reasonable grounds" within the meaning of § 104(a), supra, to believe that petitioner had committed or was committing a violation of the narcotic laws. If it did, the arrest, though without a warrant, was lawfu .... 21 Petitioner does not dispute this analysis of the question for decision. The only case citations included in the text were clearly, by the specificity of page references, given in support of the incidental search rule which was omitted from the above quotation and will be dis- cussed under Part B of this article. Two cases are cited in a footnote in support of the proposition that "probable cause" and "reasonable grounds" mean the same thing.22 No suggestion appears why the as- serted equivalence between the constitutional standard for issuing a warrant and the statutory standard for dispensing with the necessity of a warrant has any relevance. The implication seems to be that officers are governed by the same standard as magistrates-a propo- sition the Court has subsequently had some difficulty with.2 3 In any event, both the Court and the litigants obviously assumed in the Draper case that Congress had power to delegate the magisterial and police functions to a single officer. Thus the point under inquiry was assumed without citation of prior authority in Draper. In United States v. Rabinowitz,4 the officers had a warrant that the Court held was valid, but the Court added: Even if the warrant of arrest were not sufficient to authorize the arrest for possession of the stamps, the arrest therefor was valid because the officers had probable cause to believe that a felony was being committed in their very presence. Carroll v. United States, 267 U.S. 132, 156-57.25 No mention of statutory authority appears and no source for the power was cited other than Carroll. In Carroll, at the pages cited, 21. Id. at 310-11. 22. United States v. Walker, 246 F.2d 519, 526 (7th Cir. 1957); cf. United States v. Bianco, 189 F.2d 716, 720 (3d Cir. 1951). 23. E.g., Jones v. United States, 362 U.S. 257, 270 (1960). 24. Supra note 12. 25. Id. at 60. VANDERBILT LAW REVIEW [ VOL. 18 the Court discussed the common law rule of arrest without a warrant, particularly in reference to its differentiation between misdemeanors and felonies on which the petitioner in that case relied for reversal. The propriety of federal officers exercising common law powers was not discussed, no statutory authority was cited, and the decision did not rest on the existence of such a power, the Court having found an independent power to search vehicles without a warrant regardless of any power to arrest without a warrant.2 At the pages cited in Rabino- witz the Carroll opinion cited Kurtz v. Moffitt2 7 and Bad Elk V. United States,2 each of which assumed without deciding that Con- gress could constitutionally delegate power to arrest without a warrant and decided that Congress had not delegated such a power in the particular cases. In Brinegar v. United States,2 9 the Court posed the question for decision in terms of probable cause for arrest 0 but apparently de- cided it on the authority of the Carroll case in which no probable cause for arrest was found until after the search. In Trupiano v. United States,31 the Court upheld an arrest without a warrant but held the search and seizure of property was not prop- erly incident thereto because the officers had ample opportunity to get a search warrant and failed to do so. The Court's discussion of the arrest point follows: Reference is made to the well established right of law enforcement officers to arrest without a warrant for a felony committed in their presence.