United States v. Watson

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 74-538 Argued: October 8, 1975 --- Decided: January 26, 1976
MR. JUSTICE WHITE delivered the opinion of the Court.

This case presents questions under the Fourth Amendment as to the legality of a warrantless arrest and of an ensuing search of the arrestee's automobile carried out with his purported consent.

I

The relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day [p413] Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson Khoury did so, a meeting being scheduled for August 22. [n1] Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that, if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested. He was removed from the restaurant to the street, where he was given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). A search having revealed that Watson had no credit cards on his person, the inspector asked if he could look inside Watson's car, which was standing within view. Watson said, "Go ahead," and repeated these words when the inspector cautioned that "[i]f I find anything, it is going to go against you." Using keys furnished by Watson, the inspector entered the car and found under the floor mat an envelope containing two credit cards in the names of other persons. These cards were the basis for two counts of a four-count indictment charging Watson with possessing stolen mail in violation of 18 U.S.C. § 1708. [n2]

Prior to trial, Watson moved to suppress the cards, claiming that his arrest was illegal for want of probable cause and an arrest warrant and that his consent to search the car was involuntary and ineffective because he had not been told that he could withhold consent. [p414] The motion was denied, and Watson was convicted of illegally possessing the two cards seized from his car. [n3]

A divided panel of the Court of Appeals for the Ninth Circuit reversed, 504 F.2d 849 (1974), ruling that the admission in evidence of the two credit cards found in the car was prohibited by the Fourth Amendment. In reaching this judgment, the court decided two issues in Watson's favor. First, notwithstanding its agreement with the District Court that Khoury was reliable and that there was probable cause for arresting Watson, the court held the arrest unconstitutional because the postal inspector had failed to secure an arrest warrant, although he concededly had time to do so. Second, based on the totality of the circumstances, one of which was the illegality of the arrest, the court held Watson's consent to search had been coerced, and hence was not a valid ground for the warrantless search of the automobile. We granted certiorari. 420 U.S. 924 (1975).

II

A major part of the Court of Appeals' opinion was its holding that Watson's warrantless arrest violated the Fourth Amendment. Although it did not expressly do so, it may have intended to overturn the conviction on the independent ground that the two credit cards were the inadmissible fruits of an unconstitutional arrest. Cf. Brown v. Illinois, 422 U.S. 590 (1975). However that may be, the Court of Appeals treated the illegality of Watson's arrest as an important factor in determining the voluntariness of his consent to search his car. We therefore deal first with the arrest issue.

Contrary to the Court of Appeals' view, Watson's arrest was not invalid because executed without a warrant. [p415] Title 18 U.S.C. § 3061(a)(3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees "performing duties related to the inspection of postal matters" to

make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony.

By regulation, 39 CFR § 232.5(a)(3) (1975), and in identical language, the Board of Governors has exercised that power and authorized warrantless arrests. Because there was probable cause in this case to believe that Watson had violated § 1708, the inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment.

Under the Fourth Amendment, the people are to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . and no Warrants shall issue, but upon probable cause. . . .

Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so. [n4] This was not an [p416] isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many year to make felony arrests on probable cause but without a warrant. This is true of United States marshals, 18 U.S.C. § 3053 and of agents of the Federal Bureau of Investigation, 18 U.S.C. § 3052; the Drug Enforcement Administration, 84 Stat. 1273, 21 U.S.C. § 878; the Secret Service, 18 U.S.C. § 3056(a); and the Customs Service, 26 U.S.C. § 7607. [n5]

Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is ‘reasonable,'"

[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable, and that the Act was therefore unconstitutional.

United States v. Di Re, 332 U.S. 581, 585 (1948). Moreover, there is nothing in the Court's prior cases indicating that, under the [p417] Fourth Amendment, a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary.

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. . . .

Carroll v. United States, 267 U.S. 132, 156 (1925). In Henry v. United States, 361 U.S. 98 (1959), the Court dealt with an FBI agent's warrantless arrest under 18 U.S.C. § 3052 which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "[t]he statute states the constitutional standard. . . ." 361 U.S. at 100. The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In Abel v. United States, 362 U.S. 217, 232 (1960), the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in Draper v. United States, 358 U.S. 307 (1959), was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful. . . ." Id. at 310. Ker v. California, 374 U.S. 23, 34-35 (1963) (opinion of Clark, J.), reiterated the rule that "[t]he lawfulness of the arrest without warrant, in turn, must be based upon probable cause . . . ," and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement," and noted that the Court "has never invalidated an arrest supported by probable cause solely [p418] because the officers failed to secure a warrant." Gerstein v. Pugh,420 U.S. 103, 113 (1975). [n6]

The cases construing the Fourth Amendment thus reflect the ancient common law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed.1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant. 22 Mich.L.Rev. 541, 547-550, 686-688 (1924); [p419] Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 30 (K B. 1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng.Rep. 585 (K.B. 1827). This has also been the prevailing rule under state constitutions and statutes.

The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals.

Kurtz v. Moffitt, 115 U.S. 487, 504 (1885).

In Rohan v. Sawin, 59 Mass. 281 (1850), a false arrest case, the Supreme Judicial Court of Massachusetts held that the common law rule obtained in that State. Given probable cause to arrest,

[t]he authority of a constable, to arrest without warrant, in cases of felony, is most fully established by the elementary books, and adjudicated cases.

Id. at 284. In reaching this judgment the court observed:

It has been sometimes contended that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions forbidding unreasonable searches and arrests except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law.

Id. at 284-285. [p420] Also rejected, id. at 285-286, was the trial court's view that, to justify a warrantless arrest, the State must show

an immediate necessity therefor, arising from the danger, that the plaintiff would otherwise escape, or secrete the stolen property, before a warrant could be procured against him.

The Supreme Judicial Court ruled that there was no "authority for thus restricting a constable in the exercise of his authority to arrest for a felony without a warrant." Id. at 286. Other early cases to similar effect were Wakely v. Hart, 6 Binn. 316 (Pa. 1814); Tolley v. Mix, 3 Wend. 350 (N.Y.Sup.Ct. 1829); State v. Brown, 5 Del. 505 (Ct.Gen.Sess. 1853); Johnson v. State, 30 Ga. 426 (1860); Wade v. Chafee, 8 R.I. 224 (1865). See Reuck v. McGregor, 32 N.J.L. 70, 74 (Sup.Ct. 1866); Baltimore & O. R. Co. v. Cain, 81 Md. 87, 100, 102, 31 A. 801, 803, 804 (1895). [n7]

Because the common law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that, in 1792, Congress invested United States marshals and their deputies with

the same powers in executing the laws of the United States as sheriffs and their deputies in the several states have by law in executing the laws of their respective states.

Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local pace officers to arrest for a felony without a warrant. [n8] This provision equating the power of federal marshals [p421] with those of local sheriffs was several times reenacted, [n9] and is today § 570 of Title 28 of the United States Code. That provision, however, was supplemented in 1935 by § 504a of the Judicial Code, [n10] which, in its essential elements, is now 18 U.S.C. § 3053 and which expressly empowered marshals to make felony arrests without warrant and on probable cause. It was enacted to furnish a federal standard independent of the vagaries of state laws, the Committee Report remarking that, under existing law, a

marshal or deputy marshal may make an arrest without a warrant within his district in all cases where the sheriff might do so under the State statutes.

H.R.Rep. No. 283, 74th Cong., 1st Sess., 1 (1935). See United States v. Riggs, 474 F.2d 699, 702-703, n. 2 (CA2), cert. denied, 414 U.S. 820 (1973).

The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears [p422] in almost all of the States in the form of express statutory authorization. In 1963, the American Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Pre-arraignment Procedure was proposed. Among its provisions was § 120.1, which authorizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony or has committed a misdemeanor or petty misdemeanor in his presence. [n11] The commentary to this section said: "The Code thus adopts the traditional and almost universal standard for arrest without a warrant." [n12] [p423]

This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances. [n13] Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United States v. Ventresca, 380 U.S. 102, 106 (1965); Aguilar v. Texas, 378 U.S. 108, 111 (1964); Wong Sun v. United States, 371 U.S. 471, 479 480 (1963). But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause, rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable [p424] to get a warrant, whether the suspect was about to flee, and the like.

Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary.

III

Because our judgment is that Watson's arrest comported with the Fourth Amendment, Watson's consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson's consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error.

We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson's consent are inadequate to demonstrate that, in the totality of the circumstances, Watson's consent was not his own "essentially free and unconstrained choice" because his "will ha[d] been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer [p425] to the law, [n14] mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings, and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent.

In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case.

In consequence, we reverse the judgment of the Court of Appeals.

So ordered.

MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

1. In the meantime, the inspector had verified that the card was stolen.

2. Title 18 U.S.C. § 1708 punishes the theft of mail as well as the possession of stolen mail. The punishment is a fine of not more than $2,000 or imprisonment for not more than five years, or both.

3. Watson was acquitted on the second count. The fourth was dismissed prior to trial.

4. At least since approval of the Act of June 10, 1955, c. 137, § 203, 69 Stat. 106, 39 U.S.C. § 3523(a)(2)(K) (1964 ed.), postal inspectors' duties have been thought to permit arrest without a warrant upon probable cause. Compare United States v. Helbock, 76 F.Supp. 985 (Ore.1948), with United States v. Alexander, 415 F.2d 1352 (CA7 1969), cert. denied, 397 U.S. 1014 (1970); Kelley v. Dunne, 344 F.2d 129 (CA1 1965); and United States v. Bell, 294 F.Supp. 1314 (ND Ill.1968). The Court of Appeals for the Ninth Circuit held, however, that § 3523(a)(2)(K) did not give the necessary express power to arrest, but that a warrantless arrest by a postal inspector could be upheld by resort to a citizen's power to arrest. United States v. DeCatur, 430 F.2d 365 (1970); Neggo v. United States, 390 F.2d 609 (1968); Ward v. United States, 316 F.2d 113, cert. denied, 375 U.S. 862 (1963).

In 1968, in the face of confusion generated by these decisions and two others striking down warrantless arrests by postal inspectors as not authorized by federal statute or by state law, Alexander v. United States, 390 F.2d 101 (CA5 1968); United States v. Moderacki, 280 F.Supp. 633 (Del.1968), the Congress enacted 18 U.S.C. § 3061 to make clear that postal inspectors are empowered to arrest without warrant upon probable cause. Pub.L. 90-560, § 5(a), 82 Stat. 998; H.R.Conf.Rep. No.1918, 90th Cong., 2d Sess., 6 (1968); H.R.Rep. No. 1725, 90th Cong., 2d Sess. (1968); 114 Cong.Rec. 20914-20915, 26928, 28864-28865 (1968).

5. There are other federal officers subject to a more restrictive statutory standard. See, e.g., 18 U.S.C. § 3050 with respect to employees of the Bureau of Prisons.

6. In the case before us, the Court of Appeals relied heavily, but mistakenly, on Coolidge v. New Hampshire, 403 U.S. 443, 480-481 (1971), for, as we noted in Gerstein v. Pugh, 420 U.S. at 113 n. 13, the still unsettled question posed in that part of the Coolidge opinion was "whether and under what circumstances an officer may enter a suspect's home to make a warrantless arrest." Watson's midday public arrest does not present that question.

In its proposed Model Code of Pre-arraignment Procedure, the American Law Institute has addressed the question, and recommends that an officer who is empowered to make an arrest and has probable cause to believe the person to be arrested is on private premises be authorized to demand entry to such premises, and thereupon to enter to make an arrest. ALI, Model Code of Pre-arraignment Procedure § 120.6(1) (1975). In certain cases of necessity, however, notification and demand are not required. § 120.6(2). Authority to make nighttime arrests on private premises is restricted to arrests with warrants authorizing nighttime execution and to certain cases of necessity. § 120.6(3). The commentary states that 24 States (and the District of Columbia) authorize forcible entry whenever there is authority to arrest, six whenever the arrest is under a warrant or for a felony, six whenever the arrest is under a warrant, and two whenever the arrest is for a felony. Id. at 310, 696-697. Of these jurisdictions, all but three have prior notice requirements for entries to make an arrest similar to those 18 U.S.C. § 3109 imposes on entries to execute a search warrant. ALI Model Code, supra at 310-313.

7. As Professor Wilgus observed in his article Arrest Without A Warrant, 22 Mich.L.Rev. 541, 549-550 (1924) (footnote omitted),

[i]t was early argued that similar provisions [to the Fourth Amendment of the Constitution] in state constitutions forbade arrests without a warrant; it was ruled otherwise as to arrests by officers and private persons according to the common law.

8. Of equal import is the rule recognized by this Court that even in the absence of a federal statute granting or restricting the authority of federal law enforcement officers, "the law of the state where an arrest without warrant takes place determines its validity." United States v. Di Re, 332 U.S. 581, 589 (1948). Accord, Miller v. United States, 357 U.S. 301, 305 (1958); Johnson v. United States, 333 U.S. 10, 15 n. 5 (1948); Bad Elk v. United States, 177 U.S. 529, 535 (1900). This rule is consistent with the express statutory authority of United States marshals discussed in the text, as well as with the Act of Sept. 24, 1789, c. 20, § 33, 1 Stat. 91, providing that, for any offense against the United States, the offender may be arrested by any judge or justice of the United States "agreeably to the usual mode of process against offenders in such state" as he might be found. See United States v. Di Re, supra at 589 n. 8.

9. Act of Feb. 28, 1795, c. 36, § 9, 1 Stat. 425; Act of July 29, 1861, c. 25, § 7, 12 Stat. 282; Rev.Stat. § 788 (1874); Judicial Code of 1948, § 549, 62 Stat. 912.

10. Act of June 15, 1935, c. 259, § 2, 49 Stat. 378.

11. Section 120.1 of the Model Code provides, in pertinent part:

(1) Authority to Arrest Without a Warrant. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed

(a) a felony;

(b) a misdemeanor, and the officer has reasonable cause to believe that such person

(i) will not be apprehended unless immediately arrested; or

(ii) may cause injury to himself or others or damage to property unless immediately arrested; or

(c) a misdemeanor or petty misdemeanor in the officer's presence.

12. Id. at 289 (footnote omitted). The commentary goes on to say with respect to § 120.1:

This Section does not require an officer to arrest under a warrant even if a reasonable opportunity to obtain a warrant exists. As to arrests on the street, such a requirement would be entirely novel. Moreover the need for it is not urgent, and the subsequent inquiry such a requirement would authorize would be indeterminate and difficult.

Id. at 303 (footnotes omitted).

As the commentary notes, id. at 289 n. 1, a statute in the State of Georgia is more restrictive of the arrest power than the general standard. Ga.Code Ann. § 27-207(a) (Supp. 1975). See also Colo.Rev.Stat.Ann. § 16-3-102 (1973), which provides that an arrest warrant should be obtained "when practicable," and Mont.Rev.Codes Ann. § 95-608(d) (1969), which authorizes a warrantless arrest if "existing circumstances require" it. A North Carolina statute, N.C.Gen.Stat. § 151 (1965), similar to the Georgia statute, was replaced in 1975 by a provision permitting warrantless felony arrests on probable cause. N.C.Gen.Stat. § 15A-401(b)(2) (1975).

13. Until 1951, 18 U.S.C. § 3052 conditioned the warrantless arrest powers of the agents of the Federal Bureau of Investigation on there being reasonable grounds to believe that the person would escape before a warrant could be obtained. The Act of Jan. 10, 1951, c. 1221, § 1, 64 Stat. 1239, eliminated this condition. The House Report explained the purpose of the amendment, H.R.Rep. No. 3228, 81st Cong., 2d Sess., 1-2 (1950), and the amendment was given effect by the courts in accordance with its terms. Compare United States v. Coplon, 185 F.2d 629, 633-636 (CA2 1950), cert. denied, 342 U.S. 920 (1952), with Coplon v. United States, 89 U.S.App.D.C. 103, 108-109, 191 F.2d 749, 753-754 (1951), cert. denied, 342 U.S. 926 (1952).

14. On the contrary, the inspector making the arrest in this case had arrested Watson in 1971 for mail theft. Those charges were dropped when Watson cooperated with the prosecution. During the ensuing two years, he also furnished information to the authorities.
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