Michigan Law Review
31 (1933): 749.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.

PUBLIC POLICY AND THE ARREST OF FELONS
John Barker Waite*

UNDER the judicial rulings of a score of States, it may happen that a man is arrested for the crime of carrying concealed weapons, that irrefutable evidence of guilt is found upon him, and that he nevertheless evades conviction and punishment because the courts will not permit the evidence to be used. It not only may happen; it does actually occur with shocking and incredible frequency. Yet oddly enough this practice appears to be in flat conflict with the statute law of some of those States and with the provisions of the model Code of Criminal Procedure recently approved by the American Law Institute. So far, no protest that the judicial practice is inconsistent with the statute law has been carried to final decision. But as the model Code is more widely adopted, contention that its provisions were intended to alter the existing practice and to prevent such evasions is certain to be heard. Thereby will be raised a difficult and abstruse question of constitutional law.

The issue arises in this way: At common law an arrest by a police officer on a felony charge is lawful if the arresting officer has reasonable ground to believe the arrestee guilty, even though he be in fact innocent.[1] This rule is founded on policy on the necessities of social safety. Any other rule would be "inconvenient and narrow; because, if a man charges another with felony, and requires an officer to take him into custody, and carry him before a magistrate, it would be most mischievous that the officer should be bound first to try, and at his peril exercise his [Page 750] judgment on the truth of the charge."[2] So also, "If in cases like this an officer, who must necessarily act with more or less haste in order to prevent a possible felon from making his escape, would have to satisfy himself beyond question that a felony had been committed, or must act at his peril, the great public necessity for a prompt and rigid enforcement of the law would be largely curtailed."[3]

Though the practical soundness and wisdom of this rule is apparent, the merit of its obverse is not. This latter appears to be that an arrest is unlawful, even though the arrestee be guilty of a felony, if the officer had not reasonable ground to believe him guilty. Thus neither the guilt nor innocence of the person arrested has anything to do with the legality of arrest by a police officer. Though the arrestee be innocent, the arrest is lawful if the officer had reasonable ground to believe him guilty. Though the arrestee be guilty of the most heinous felony, the arrest is unlawful if he did not appear guilty.[4]

Occasional courts have gagged on the latter rule. In State v. Grant,[5] the court suggested that guilty persons are apt to behave differently from innocent ones and that the guilt of the arrested person ought at least to be taken into consideration in determining whether or not the officer had real reason for believing him guilty. A later decision in the same State[6] went so far as to declare an arrest lawful if the person arrested is actually guilty, regardless of appearances. "It would," said the court, "be a strict and narrow view to hold that, although defendant ought to have been arrested, and in fact was arrested, such arrest was not warranted, because the officer making it did not know of the specific [Page 751] felony theretofore committed by the defendant." But courts generally have insisted that the guilt in fact of the person arrested does not make his arrest lawful, in the absence of statute.

Another rule, recently established in a score of States,[7] precludes the use (if objection be properly made) of evidence secured by the State through violation of the constitutional prohibition of "unreasonable" searches and seizures. Searches consequent upon unlawful arrest and occuring simply because of the arrest have been uniformly held to be "unreasonable searches" within the meaning of the common constitutional provision.[8]

These several rules form the premises of the logical sorites through which persons undoubtedly guilty of felony frequently evade conviction. Thus: Arrest without reasonable ground to believe the arrestee guilty is unlawful; search following unlawful arrest is unreasonable; evidence secured through unreasonable search or seizure is unusable; therefore the accused cannot be convicted by means of such evidence, however clearly it may demonstrate guilt.

Section 21 of the Institute's code reads as follows:

"Arrest by officer without warrant ¾ when lawful. A peace officer may, without a warrant, arrest a person:

(a) When the person to be arrested has committed a felony or misdemeanor in his presence. In the case of such arrest for a misdemeanor, the arrest shall be made immediately or on first pursuit.

(b) When the person to be arrested has committed a felony, although not in the presence of the officer.

(c) When a felony has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it.

(d) When he has reasonable ground to believe that a felony has been or is being committed and reasonable ground to believe that the person to be arrested has committed or is committing it."

Subsections (c) and (d) apply specifically not only to cases where the person arrested is innocent, but also to cases where he has in fact committed a felony and the arresting officer has reasonable ground to believe that he is guilty. Subsection (b), therefore, unless it be wholly [Page 752] redundant and ineffective, must necessarily be intended precisely to legalize arrests where the person arrested is in fact guilty of felony even though the arresting officer did not have reasonable ground to believe him guilty.

Similar provisions are already in the statutes of 15 States, though the problems of their validity and effect seem not yet to have been raised in any courts.[9]

By such a statutory provision the logical process leading to the conclusion of non-convictability is of course upset, because the statute alters the first premise. If arrest of a guilty person is no longer "unlawful," it no longer follows (by that particular logical progression) that evidence secured through the arrest cannot be used. So far as the nominal character of the arrest affects it, the evidence is now usable and conviction may result. If the usability of the evidence is still to be disputed, some other reason than the nominal unlawfulness of the arrest must be alleged. Obviously, the only pertinent objection still possible would be that the search by which the evidence was procured was "unreasonable" in the constitutional sense, despite its consequence upon a statutorily "lawful" arrest.

Some such contention is at least possible, if not plausible. It may that a search, to be reasonable, must itself be made upon reasonable ground to believe something or other in respect to the guilt of the person searched, or, perhaps, must be justified upon the likelihood of finding contraband, or stolen property. And if it be the legal rule that the search must stand upon its own basis of reasonableness, and does not attain reasonableness merely by its consequence upon a "lawful" arrest, then the lawfulness of the arrest is quite immaterial in respect to the usability of evidence procured thereby. The syllogism of non-convictability now becomes: Search without reason to believe (whatever is required) is "unreasonable," even though it follows a lawful arrest, [Page 753] and evidence secured through it cannot be used; this particular search, though it followed a lawful arrest, was made without such reason to believe; therefore evidence secured through it cannot be used.

No suggestion of any such requirement in the search itself is expressed in the decided cases, however. The conventional statement is simply that the search is reasonable because it is the proper consequence of a lawful arrest. "The [constitutional] immunity," says a New York opinion, "is not from all search and seizure, but from search and seizure unreasonable in the light of common-law traditions. If immunity is to be conceived of as the rule, there is one exception that has been established as firmly as the rule itself. The government may search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime."[10] The words it quotes are from the statement of the United States Supreme Court that there is "a right on the part of the Government, always recognized under English and American law, to search the person of the accused to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases."[11] So also in Carroll v. United States[12] Chief Justice Taft said, "When a man is legally arrested for an offense, whatever is found upon his person, or in his control which it is unlawful for him to have and which may be used to prove the offense, may be seized."

Undoubtedly "lawful arrest," as used in this declaration of rule, means arrest which is itself "reasonable" in the constitutional sense. A search, to be reasonable, must be consequent upon a reasonable (as distinct from a mere nominally lawful) arrest. But inasmuch as the constitutional prohibition covers "seizures" as well as "searches," it [Page 754] may be assumed that no arrest could truly be "lawful," despite legislative declaration, if it were not also "reasonable" in the constitutional sense.

Section 21 of the Code purports to make arrest of a guilty man ipso facto "lawful." The fundamental issue, therefore, is whether or not such a statute violates the constitutional preclusion of any legislation attempting to legalize an unreasonable arrest. Specifically, can the arrest of a felon, under conditions which legislation declares proper, be "lawful" in the constitutional sense of "reasonable," despite the fact that the arresting officer did not have reason to know of the guilt?

If courts decide that such arrests cannot be legalized, that such statutes are void, then some felons will continue to evade punishment despite arrest and evidence of guilt. If courts hold such statutes valid, it follows that evidence procured through such arrests will be usable (because the arrests are lawful in the constitutional sense) and the evasions will cease.

Raising the Constitutional Question

This question of constitutionality of the statutes may be raised in any one of three quite different types of case.

One effect of the statute, if it be valid, is to preclude a person so arrested from a tort action for false arrest. Inasmuch, however, as the statute is applicable only to those cases in which the person arrested is in fact guilty of felony, it is fairly obvious that his chance of recovering substantial damages is practically nil. And it is scarcely probable that any arrested person, being in fact guilty of the crime for which arrested, will undertake a suit in tort merely to test the validity of the statute.

If the unlawfulness of an arrest negatived the jurisdiction of the court in subsequent proceedings, it might well happen that the validity of the statute would be attacked by motion to quash a conviction. But the rule seems to be established that a conviction otherwise valid is not affected by the character of the original arrest.[13]

Another effect of the statute, if it be valid, is to take away from the actually guilty person his right to resist the arrest. As a matter of com- [Page 755] mon sense the average man may feel startled at the idea that a person guilty of felony possesses a legal right to resist the police officer who endeavors to arrest him; but such appears to be the law.[14] But while it must be conceded that, as a general rule, even a guilty person has a legal right to resist, nevertheless the attitude of the courts is not friendly to the guilty man who has killed or seriously injured an arresting officer, and if the validity of the statute is first raised in such a case the opposition is not likely to receive sympathetic consideration.

But the validity of the statute is sure to be contested in some case wherein the State seeks to make use of evidence secured through what, but for the statute, would be an unlawful arrest. The defendant has everything to gain and nothing to lose by protesting the use of such evidence, and it is inconceivable that he will not do so.

Even in such a case, however, before the question of constitutionality of the statute can be actually raised, a casuistic problem of procedure must first be settled.

Suppose an offer is made of evidence secured through an arrest which the prosecuting attorney frankly admits was not "legal" at common law because not based on reasonable ground to believe the arrestee guilty. Under the judicial rule of exclusion, objection having been made in proper form, the evidence would not be admissible. But now the prosecuting attorney relies on the statute and asserts the lawfulness of the arrest (and the consequent admissibility of the evidence) because the accused was in fact guilty. Must the State prove the defendant's guilt before it can use the evidence? But how can it prove his guilt without using the evidence? As one prosecutor put it to the writer: "If the evidence was secured by unlawful arrest, I cannot use it to prove his guilt. Unless the man is guilty, the arrest was unlawful. To make the evidence usable, therefore, I must prove his guilt. But to prove his guilt I must use the evidence. How do I get out of the circle?"

One answer may be that it is the defense counsel, not the prosecutor, who needs to get out. The legality of an arrest is presumed. To maintain his objection the defense counsel must show its unlawfulness ¾ which means that he must show not only absence of reasonable ground to believe but also, under the statute, that the arrestee was not in fact guilty.[15] [Page 756]

Without pressing this suggestion that the prosecutor's vicious circle is rotating on a false premise, there is another fallacy in the logic ¾ the use of four terms in the syllogism. The phrase "use the evidence" is clearly duplicitous. It may mean "use it before the jury for the purpose of punishment ¾ i.e. the ultimate issue before the jury." Or it may mean "use it to prove a fact to be determined by the judge merely incidentally to the progress of the trial." Does the major premise, that evidence secured by unlawful arrest cannot be "used," mean only that it cannot be used to prove guilt for purposes of punishment? Or that it cannot be used in any way, for any purpose?

It is an undisputed duty of the trial judge to rule upon the admissibility of evidence. And in so doing he is privileged to determine the existence or non-existence of all facts on which its admissibility depends. Moreover, "In preliminary rulings by a judge on the admissibility of evidence, the ordinary rules of evidence do not apply." "The judge is not restricted to legal evidence."[16] Thus it follows that when evidence is objected to because it was secured through unlawful arrest, it devolves upon the judge to determine whether or not the arrest was unlawful. He must investigate whether it was made under a valid warrant, or, if without warrant, was upon reasonable ground to believe. If [Page 757] he finds either fact affirmatively, he may declare the arrest lawful and order admission of the evidence. There appears never to have been denial of the propriety of this practice. Now, under the statute, a third basis of validity for the arrest appears. The arrest now lawful (1) if on valid warrant, or (2) on reasonable ground to believe, or (3) if the arrestee is in fact guilty. The third fact is as much a validation of the arrest as are the other two. If, as is the undisputed practice, the trial judge may, and must, hear pertinent evidence to determine the existence of numbers one or two, it must necessarily be equally his province and duty to determine the existence of alternative number three. This much stands indisputable.[17]

The only possible objection is that the judicial rule forbidding use of evidence secured through unlawful arrest extends to its use for any purpose; that it precludes judges themselves from considering it for incidental purposes of the trial. But inasmuch as the courts made the rule themselves, they have power to interpret it as they think best.

On this point the writer knows of no precedents. In Burdeau v. McDowell[18] the Supreme Court held that the preclusion of use extends only to evidence improperly secured by agents of the government; that evidence secured through unofficial burglary may nevertheless be used. [Page 758]

If the search and seizure clause is held not to affect evidence so secured, may the clause not be held, with equal wisdom, to preclude only admission to the jury? The answer is obviously a matter of judicial choice, based on the utilities, not a matter of compulsory precedent. And in the words of Justice Cardozo,

"The recognition of a privilege [against admission of certain evidence] does not mean that it is without conditions or exceptions. The social policy that will prevail in many situations may run foul in others of a different social policy, competing for supremacy. It is then the function of a court to mediate between them, assigning, so far as possible, a proper value to each, and summoning to its aid all the distinctions and analogies that are the tools of the judicial process."[19]

Should some court rule that the search and seizure clause does preclude consideration of the evidence even by the trial judge for purposes of incidental rulings, all argument as to the constitutionality of the statutes under consideration here would be foreclosed. They could have no effect on admissibility of evidence because of the procedural obstacles. Their effect in taking away the arrested person's right of resistance and his right of action for false arrest might still exist, but, as has already been suggested, their constitutionality is not likely to be raised in these latter connections. But if, on the other hand, appellate courts decide that the evidence of guilt may properly be considered by the trial judge for the purpose of ruling on its admissibility to the jury, then the only objection left to defense counsel is the contention that the statute itself is void. In such case the issue of constitutionality is squarely raised.

The Constitutional Question - A Question of Policy

Undoubtedly, arrests which are "unreasonable" within the meaning of the constitutional preclusion cannot be legalized by any amount of legislation. If the arrest of even a guilty man is "unreasonable," it cannot be made "reasonable," or "lawful," by statute. The fundamental issue, therefore, is whether an arrest is necessarily "unreasonable," despite the actual guilt of the arrestee, merely because the arrestor did not have reason to know that he was guilty.

Prior to the statute, arrests on suspicion were "unlawful" even though the arrestee turned out to be guilty. But "unlawful" and "unreasonable" are neither synonymous nor coextensive. True, an [Page 759] unreasonable arrest is ipso facto unlawful because of the constitutional provision, but it is not true that an unlawful arrest is ipso facto unreasonable ¾ no more true than that every web-footed bird is a goose.

Courts have long recognized that arrests which were unlawful at common law may be made lawful by statute without violating the constitutional prohibition of "unreasonable seizure." At common law, for example, even peace officers had no authority to arrest without a warrant for misdemeanors. But in 1860 the Missouri legislature authorized such arrests under certain circumstances. The constitutionality of the change was accepted by the Missouri Supreme Court as a matter of course in State V. Grant[20], and seems never seriously to have been questioned.

So, too, the Michigan Supreme Court in 1879 laid down the common law rule that "an arrest without warrant has never been lawful except in those cases where the public safety requires it; and this has been recognized only in cases of felony, and in breaches of peace committed in the presence of the officer."[21] Yet the Michigan statutes have since then definitely removed this common law limitation and have broadened both the powers and the territorial jurisdiction of police officers. Officers may now arrest "within the limits of their jurisdiction or in any adjoining county" and may arrest for certain misdemeanors, as well as for felonies.[22] Yet no question of the constitutionality of the statutes, or of the "reasonableness" of such arrests appears ever to have been raised, despite the fact that they were "unlawful" until the statute legalized them.

In Burroughs v. Eastman[23] the issue was squarely presented whether legislation which broadens and extends common law powers of arrest can be constitutional. The court, citing many precedents from other States, said, "The right of arrest by officers of the peace is more or less enlarged by statutory regulations in the several states, as well as, of late, in England; or, if not enlarged, defined. A statute enlarging the right ¾ that is, in restraint of personal liberty ¾ is to be strictly construed. But statutes of this sort are generally held to be constitututional."[24] [Page 760]

In the absence of authority to the contrary, it seems safe to say that an arrest is not "unreasonable" merely because its legality depend, upon statute and was not recognized by the common law.[25] The issue in the particular type of case under discussion, then, narrows to this: When the framers of the constitutions declared that the people should be secure against unreasonable searches and seizures, did they have in mind the protection of innocent persons against improper molestation, or did they intend also to protect guilty persons to the extent of making it impossible even for the legislature to declare arrests of guilty persons ipso facto lawful?

If there can be any doubt of the answer, the doubt is at best based only on considerations of utility and public policy. Indeed, each of the problems herein discussed is essentially pragmatic. Whether the question be the scope of the constitutional preclusion of the evidence, or the constitutionality of the statute, the answer does not depend on logical deduction from established precedents, but solely upon the practical, utilitarian wisdom of one decision or another.

Even the fundamental rule which alone gives real importance to the constitutionality of the Code provision ¾ the judicial ruling that evidence procured through unlawful arrest and search cannot be used by the State ¾ is itself no legalistic conclusion from logical process. On the contrary, it is a more or less frank choice of policy; a judicial reaction to utilitarian assumptions. Constitutions read, "the right of the people to be secure . . . against unreasonable searches and seizures shall not be violated." There is no explicit statement that evidence so secured may not be used in court. Whether some such preclusion is implicit depends upon judicial interpretation. And no student of decisions would declare the implication so obvious as to preclude a choice.[26] Were the implication of unusability obvious, then lawyers and [Page 761] judges were incredibly obtuse in failing to observe its existence prior to the advent of national prohibition. Indeed, until that event, some courts had not only failed to recognize it, but had denied its existence.[27] Even as the decisions stand today, insistence that the constitutions clearly preclude use of such evidence would put one in the awkward position of intimating stupidity, or stubbornness, in those many state courts which still fail to recognize the preclusion.[28]

The truth is that the implications of the search and seizure clause, its effect upon the usability of evidence, depended originally upon judges' reactions to conditions, not upon mere logical analysis. And its application ¾ the question of what is or is not "unreasonable" ¾ is also primarily a matter of utilitarian preferences.

But judicial preferences may vary widely, especially when the fact situation is uncertain. As to the usability of evidence, for instance, Justice Holmes and Judge Cardozo, then of the New York Court of Appeals, both recognized the problem as one of policy predicated on social interest. In Olmstead v. United States,[29] Justice Holmes said explicitly:

"There is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and to that end that all available evidence should be used. . . . We have to choose, and for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part."

Judge Cardozo, on the other hand, writing the opinion in People [Page 762] v. Defore[30], declares that if the rule of exclusion, approved by Justice Holmes, were adopted,

"The pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes 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. . . . Like instances can be multiplied. We may not subject society to these dangers until the Legislature has spoken with a clearer voice."

He recognizes that "The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice." But whereas justice Holmes believed it better that "some" criminals should escape than that law be flouted by the insolence of office, and approved the rule of exclusion, Judge Cardozo feared lest too many criminals might escape and that society be injured more seriously than it could be through any flouting of law by the police, and he rejected the rule of exclusion.

The notable characteristic of each opinion is its wholly academic basis. The followers of either conclusion present no evidence as to how the rule of exclusion actually does operate in practice. Exclusionists assume that exclusion represses improper police activity without serious interference with proper public protection, but they reveal no data in support. Skeptics doubt the practical wisdom of the rule, but offer no statistics. What in truth is the actual effect of the rule? Does it in reality protect society against police over-zeal, without seriously obstructing protection of society against criminals? Or does it seriously hamper enforcement of the criminal law, without compensating protection against other evils? Judicial opinions assume one condition or the other according to the reaction of the particular judicial mind, but nowhere is the truth of the conditions made evident.[31] [Page 763]

In Burns Baking Co.v. Bryan,[32] Justice Brandeis declared, "Knowledge is essential to understanding and understanding should precede judging. . . . [The court] should acquaint itself with the problems which have confronted public officials charged with enforcement of the law." Certainly in such a problem of policy as the constitutional "reasonableness" of arrest, knowledge of police problems and of the practical effect of one decision or another is of transcendent importance. Wise judgment cannot be based on mere speculation or unproved assumptions.

Some Pertinent Facts

A year or so ago the Detroit papers voiced anew their periodic protest at the number of "gun-toters" in the city, and urged that the law be made more drastic ¾ without specifying in what respect. Usually they criticize the police; this time it was the law. As the law against carrying concealed weapons is already explicit and detailed and provides a penalty of as much as five years in the penitentiary, the reason for its inefficacy invited the writer's investigation.[33]

The police report for the preceding year shows 237 persons prosecuted for carrying concealed weapons and only 134 convicted. This is a shockingly small ratio. Had the crime been arson, or larceny, or something of that sort, it might have been assumed that although suspicion pointed strongly to 104 of the accused persons and there was a prima facie case against them, the evidence as eventually developed failed to confirm their guilt. This might not have exonerated the police of over-enthusiasm and premature accusation, nor have relieved the prosecuting attorney of suspicion of incompetence in presenting the evidence, but it would have explained the high proportion of failures. Where the charge is carrying concealed weapons, however, it is difficult to imagine many prima facie cases not really supported by the available evidence. Who committed a larceny may often be a matter of doubt. But whether an arrested person is or is not carrying a concealed weapon is a matter of fact which the police ought to be able to determine with a high degree of certainty before making formal accusation.

As the number of failures was inexplicable from the face of the report, the writer went to the Commissioner of Police for further information. The Commissioner recognized the apparent absurdity of the situation and conceded also that 237 prosecutions for C. C. W. was smaller than might be expected under conditions such as afflicted De- [Page 764] troit where 1347 robberies, with arms, had been reported during the year. Accordingly he sent for the records. Detroit's police records are notably complete and detailed, and, together with the prosecuting attorney's files, they showed just which cases had been dismissed by the court, which nolled, and which had resulted in acquittal. But they did not indicate why the dismissals or acquittals had occurred. The Commissioner then directed a letter to the policeman who had made the charge in each case that did not result in conviction, asking an explanation of what happened.[34] Some officers were no longer on the force and in some instances one reply covered several cases. A total of 101 replies came in. Their dominant characteristic is indicated by the quotations which follow.

"Case was dismissed by his Honor, Judge Edward J. Jeffries, on the grounds of illegal search."

"Regarding the above arrest, beg to advise on January 24, 1931 stopped a car at Kirby and Tillman Avenues for reckless driving with 2 men in same and upon questioning and searching found a 32 caliber revolver on the above named person, who was arrested charged C. C. W. and taken to court as charged. The case was dismissed by Hon. Judge Jeffries at examination on grounds of illegal search."

"On Nov. 11, 1931, the defendant Mike Willenberg, was discharged by judge Stein, who said that we, Capt. Farmer and Dennis Simms of Motor Division had no right to stop this man and search him."

"Defendant waived a jury trial and was tried before Judge Cotter who found him not guilty because of illegal search.''

"The above mentioned case was dismissed on examination on the evidence as illegal arrest and search."

"This case was quashed by Hon. Judge Kilpatrick when it [Page 765] was found that in responding to the call the officers did not have the description whether the man wearing a red sweater was white or colored since the arrest was made on the above description."

Of the 101 explanations of failure, 38 were of this tenor ¾ the judge thought the arrest and subsequent search unlawful, and the evidence could not be used. Three other replies suggest that explanation without expressly stating it. Three more read, "dismissed by judge, reason not known to me."[35]

In addition to these cases, which got to the stage of formal accusation, a considerable but indeterminate number of gun carriers had been arrested, but were discharged by order of the superintendent, without formal accusation, because the arrests had obviously been unlawful.

These data, all considered, warrant the conclusion that one-fourth of the "gun-toters" discovered and arrested in Detroit during that year escaped punishment not because they were innocent, but solely because the courts thought the arrest unlawful. When justice Holmes expressed a choice "that some criminals should escape" he could hardly have been considering escape of one out of every four guilty persons [Page 766] apprehended. That is too great a cost in social safety for any possible good that the rule of excluding evidence may conceivably accomplish.[36]

The direct way to prevent these evasions of justice by undoubted felons would be by repeal, either by legislation or decision, of the rule that evidence secured by unlawful arrest is unusable. The prevention of unreasonable arrests would rest upon the liability of the arrestee to civil suit and punishment. But society would be protected by punishment also of arrested felons. Unfortunately, judicial decision has probably gone too far for such a remedy. Courts are unlikely to repudiate frankly the rule of exclusion they have so repetitiously established. And legislation would put them in a most embarrassing position. Because they have rested their rule, however speciously, upon the Constitution, they could not sustain such a statute without conceding their own mistaken interpretation of the Constitution.

But the question of how far a legislature may go in declaring an arrest to be "lawful," so that the rule of exclusion does not apply, seems never squarely to have been decided. A Missouri court once said: [37]

"Touching the other conclusion which we reach, and which bottoms justification of this arrest on the proven fact that defendant had but recently committed a felony, it would, we repeat, be a strict and narrow view to hold that, although defendant ought to have been arrested, and in fact was arrested, such arrest was not warranted, because the officer making it did not know of the specific felony theretofore committed by defendant."

A Pennsylvania court said: [38]

"The felon is an enemy to that sovereignty and security, forfeits his liberty, and cannot complain that the hand of his fellowman arrests his flight and returns him to justice. . . . He has broken the bond of society; he has dealt a blow at its welfare and security, and he has placed himself in open hostility to all its faithful mem- [Page 767] bers, whose duty it becomes to bring him to justice. We speak of the known felon. It is a misapplication, which applies the guards of the constitution and the sacred principles of a just and well regulated liberty to his case. The harmless citizen stands upon a different footing. . . . "

Judge Samuel Seabury repeated this latter idea in 1932, saving: [39]

"As we look at some of the uses which the criminal classes have made of constitutional provisions, one might suppose that the far-seeing barons who wrung the Great Charter from King John at Runnymede were intent upon safeguarding the twentieth century racketeer, gangster, kidnaper, gunman and corrupt political leader in the prosecution of their sinister vocations. It ought to be possible to find a way, by judicial interpretation, to use these constitutional provisions for the protection of liberty without giving them such fanciful and far-fetched interpretations as to convert them into a weapon by which criminals can make war safely upon organized society and its law-abiding members."

In view of the importance of the decision, it may be hoped that when the issue raised by the statute comes before the courts, and they must "choose between two principles of policy," they will seek out every possible bit of information as to the practical effect of one choice or the other. Perhaps also they will remember that other declaration of Justice Brandeis, approved by the Court, that "As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute."[40]

*Professor of Law, University of Michigan. A.B., Yale; LL.B., Michigan. Author of PATENT LAW, LAW OF SALES, CASES ON CRIMINAL LAW AND PROCEDURE, and of articles in various periodicals.¾Ed.

[1]. Samuel v. Payne, I Doug. 359, 99 Eng. Repr. 230 (1780); Davis v. Russell, 5 Bing. 354, 130 Eng. Repr. 1098 (1829); Wade v. Chaffee, 8 R. 1. 224, 5 Am. Rep. 572 (1865); Dodds v. Board, 43 Ill. 95 (1867). Much authority is collected in Wilgus, "Arrest Without a Warrant," 22 MICH. L. REV. 541 at 673 (1924).

[2]. Samuel v. Payne, I Doug. 359, 99 Eng. Repr. 230 (1780).

[3]. Grau v. Forge, 183 Ky. 521, 209 S. W. 369 (1919).

[4]. People v. Ward, 226 Mich. 45, 196 N. W. 971 (1924); People v. Roache, 237 Mich. 215, 211 N. W. 742 (1927); People v. Burt, 51 Mich. 199, 16 N. W. 378 (1883); Testolin v. State, 188 Wis. 275, 205 N. W. 825 (1925), noted in 24 MICH. L. REV. 504 (1926); Garske v. United States, (C. C. A. 8th, 1924) I F. (2d) 620, noted in 23 MICH. L. REV. 390 (1925).

In some of the discussions there is apparent an assumption that if officers are protected, by a holding that the arrest is lawful, in cases where they are right and the arrest was deserved, they will be tempted "to take a chance" more often, despite their liability to civil suit and criminal prosecution if they are wrong. This is an assumption, however, for which no supporting fact information is presented in any of the discussions. The writer's own guess, founded on a considerable acquaintance with police problems and practices, is that the unlawfulness of an arrest even when the arrestee is guilty, and the effects of that unlawfulness on subsequent procedure, force the police into more frequent taking of chances and other illegalities than would be necessary were the arrests of guilty persons ipso facto lawful.

[5]. 79 MO. 113 (1883).

[6]. State v. Whitley, (Mo. 1916) 183 S. W. 317.

[7]. The States which have adopted it are noted in Atkinson, "Prohibition and the Doctrine of the Weeks Case," 23 MICH. L. REV. 748 (1925).

[8]. See the cases cited in note 4.

[9]. This is peculiarly striking in view of the fact that Michigan has had a statute identical with that of the Institute Code on its books since 1927. Neither prosecuting attorneys nor judges appear to have discovered it. Mich. Comp. Laws (1929) § 17149.

Similar statutes are on the books, at least, in 14 other States. Ala. Code (1923), sec. 3263; Ariz. Rev. Stat. (1913), Pen. Code, sec. 854; Calif. Pen. Code (1925), sec. 836; Idaho, Comp. Stat. 1919, sec. 8726; Minn. Gen. Stat. (1923), sec. 10570; Miss., Hem. Code 1927, sec. 1265; Mont. Rev. Code (1921), sec. 11753; Nev. Rev. Laws 1912, sec. 6953; N. Y., Gil. Cr. Code 1926, Crim. Proc., sec. 177; N. D. Comp. Laws (1913), sec. 10567; Okla. Comp. Stat. (1921), sec. 2471; Or., Olson's Laws (1920), sec. 1763; S. D. Rev. Code (1919), sec. 4553; Tenn., Shannon's Code (1917), sec. 6997; Utah, Comp. Laws (1917), sec. 8714.

These citations are taken from the Reporters' annotation of the Institute Code.

[10]. People v. Chiagles, 237 N. Y. 193, 142 N. E. 583 (1923), citing much authority.

[11]. Weeks v. United States, 232 U. S. 383 at 392, 34 Sup. Ct. 341 (1914.). It should perhaps be pointed out that the question of "reasonableness" of search as involved in the text of this article covers only searches of the person and paraphernalia of the arrested person immediately upon the arrest. The question of how far beyond such limits a reasonable search may extend is not here involved. On this latter point anyone interested will find many cases cited and discussed in 2 ROCKY MT. L. REV. I I I (1930).

As regards the particular kind of search involved in this discussion, i.e. search for concealed weapons, the statutes of at least 11 States expressly authorize an officer who makes a "lawful" arrest to take from the person arrested all offensive weapons. Arizona, Rev. Stat. (1913), Arizona Pen. Code, sec. 864; Calif. Pen. Code (1925), sec. 846; Idaho, Comp. Stat. 1919, sec. 8736; Iowa, Code 1924, sec. 13476; Mich. Comp. L. 1929, sec. 17159; Mont. Rev. Code (1921), sec. 11763; Nev. Rev. Laws 1912, sec. 6963; Utah, Comp. Laws (1917), sec. 8724. (Citations taken from the Reporters" note to the Institute Code.)

[12]. 267 U. S. 132, 45 Sup. Ct. 280 (1925).

[13]. People v. Miller, 235 Mich. 340, 209 N. W. 81 (1926), noted in 25 MICH. L. REV. 193 (1926); State v. DeHart, 3 N. J. Misc. 71, 129 Atl. 427 (1925), noted in 24 MICH. L. REV. 192 (1925); People v. Iverson, 46 App. Div. 301, 61 N. Y. S. 220 (1899); State v. May, 57 Kan. 428, 46 Pac. 709 (1896); State v. Chandler, 158 Minn. 447, 197 N. W. 847 (1924); State v. Brewster, 7 Vt. 118 (1835); Rex. v. Iaci, [ 19241 3 D. L. R. 321. Contra, Rex. v. Linder, [ 1924] 3 D. L. R. 505; McCarty v. State, 16 Ind. 310 (1861).

[14]. Smith v. Commonwealth, 196 Ky. 479, 244 S. W. 878 (1922). See also 23 MICH. L. REV.62 (1924); 21 MICH. L. REV. 702 (1923).

[15]. While the general rule is that admissibility of evidence must be shown by the proponent, there are certain rational exceptions. If objection be made to testimony on the ground that the witness is insane, the courts presume sanity and the burden of proving incapacity is upon the objector. Similarly, the legality of an arrest is presumed. "Officers of the government act under legal authority, in pursuance of oath and official station, and it will be presumed, in the absence of countervailing proof, that they have performed their duty ¾ that is, that they have not been guilty, in a given instance, of making an unreasonable search or effecting an unreasonable seizure. The burden of showing the contrary, then, is upon him who contends to the contrary." United States v. Vatune, (D. C. N. D. Cal. 1923) 202 Fed. 497. If the analogy be sound, the defendant's attorney who objects to the evidence is under the obligation of proving its non-admissibility.

[16]. Quoted from Wigmore and from Best, in Maguire and Epstein, "Rules of Evidence in Preliminary Controversies as to Admissibility," 36 YALE L. J. 1101 (1927).

"The admissibility of a given piece of evidence is for the judge to determine. This general principle is not disputed. . . . It follows that, so far as the admissibility in law depends on some incidental question of fact - the absence of a deponent from the jurisdiction, the use of threats to obtain a confession, the sanity of a witness, and the like -this also is for the judge to determine, before he admits the evidence to the jury.

"In the appurtenant corollaries of this function of the judge, it may be noted that he may of course hear evidence on both sides for determining the facts on which the rule of admissibility turns; that during this process the jury may be retired out of hearing; and that the judge's determination on this question ought to be final, beyond review by appeal, and is so by the wholesome rule of a few Courts." 5 WIGMORE, EVIDENCE, 2d. ed., sec. 2550 (1923).

[17]. The mere fact that here the judicial inquiry goes, as a preliminary matter, into precisely the same question that the jury must eventually determine as a final matter does not negative the proposition that the fact is incidental to the admissibility of evidence and is therefore a fact for incidental judicial determination. Neither does it logically preclude the judge from considering it as an incidental fact. The procedure is the same as in the case of confessions of guilt whose "voluntariness" is challenged. The jury is retired, the judge hears the content of the confession and the circumstances under which it was made. If he considers it sufficiently "voluntary" to be credible, or otherwise admissible, he recalls the jury and admits the confession. But the jury is not bound by the judge's decision. It may refuse credence to the confession and acquit the defendant despite it. Just so, if the judge finds the evidence admissible because he believes the arrestee to be in fact guilty, he will recall the jury and admit the evidence ¾ without, of course, advising the jury that he has ruled affirmatively on the defendant's guilt. The jury is quite free to acquit him if it feels that the evidence does not warrant conviction. If it does, the judge's opinion has had no effect. If the jury convicts, the judge's preliminary finding is confirmed.

The New York court had to rule on a precisely analogous situation in Horton v. Cantwell, 108 N. Y. 255 (1888). The suit was for construction of a will. Under the statutes a suit for construction could be maintained only by someone whose rights were affected by the will. But to know whether plaintiff's rights were affected by the will, the will had to be construed. The court made no obstacle of the apparent impasse, however. It construed the will as a preliminary matter and decided that the plaintiff was unaffected by it and not entitled to construction.

[18]. 256 U.S. 465, 41 Sup. Ct. 574 (1921). See also Miller v. United States, C. C. A 3d, 1931). 50 F. (2d) 505.

[19]. Clark v. United States, Sup. Ct. Adv. Op. March 13, 1933.

[20]. 76 Mo. 236 (1882); and in State v. Boyd, 196 Mo. 52, 94 S. W. 536 (1906).

[21]. In re Sarah Way, 41 Mich. 299 (1879). So also Cook v. Hastings, 150 Mich. 289, 114 N. W. 71 (1907).

[22]. Mich. Comp. Laws (1915), sec. 4828.

[23]. 101 Mich. 419, 59 N. W. 817, 45 Am. St. Rep. 419 (1894).

[24]. See also, Childers v. State, 156 Ala. 96, 47 So. 70 (1908); Ballard v. State, 43 Ohio 340, I N. E. 76 (1885).

[25]. The "due process" clause has been held not to affect this question and may be left out of the discussion. Johnson v. State, 152 Ga. 271, 109 S. E. 662, 19 A. L. R. 641 (1921), "The exemption from unreasonable searches and seizures contained in the fourth amendment to the Federal constitution is not one of the privileges and immunities of the citizens of the United States which the fourteenth amendment to that constitution forbids the State to abridge, nor is it an element of due process of law guaranteed by the fourteenth amendment . . . ."(Syllabus) So also, State v. Atkinson, 40 S.C. 363, 18 S. E. 1021, 42 Am. St. Rep. 877 (1894).

[26]. The uncertainty evinced by Illinois courts is pointed out by Harno, "Evidence Obtained by Illegal Search and Seizure," 19 ILL. L. REV. 303 (1925). On the general subject see Atkinson, "Admissibility of Evidence Obtained Through Unreasonable Searches and Seizures," 25 COL. L REV. I I ( 1925); Fraenkel, "Concerning Searches and Seizures," 34 HARV. L. REV. 361 (1921); Chafee, "The Progress of the Law, 1919-1922," 35 HARV. L. REV. 673 at 694 (1922); Corwin, "The Supreme Court's Construction of the Self-Incrimination Clause," 29 MICH. L. REV. I (1930); Carrol, "The Search and Seizure Provisions of the Federal. and State Constitutions," 10 VA. L. REV. 124 (1923); Wood, "The Scope of the Constitutional Immunity Against Searches and Seizures," 34 W. VA. L. REV. I (1927); comments, 24 MICH. L. REV. 277 (1926); 31 YALE L. J. 518 (1922) ; 36 YALE L. J. 536 (1927); 36 YALE L. J. 988 (1927).

[27]. Rosenthal v. Circuit judge, 98 Mich. 208, 57 N. W. 112 (1893); Cluett v. Rosenthal, 100 Mich. 193, 58 N. W. 1009 (1894); People v. Aldorfer, 164 Mich. 676, 130 N. W. 351 (1911). Compare People v. Williamson, 200 Mich. 342, 166 N. W. 917 (1918), with People v. Ward, 226 Mich. 45, 196 N. W. 971 (1924). See Gault, "Requirements as to Search Warrants and the Use of Evidence Obtained With and Without a Warrant," 4 MICH. ST. BAR J. *163 (1924).

[28]. The division of the States on this point is noted by Atkinson, "Prohibition and the Doctrine of the Weeks Case," 23 MICH. L. REV. 748 (1925).

[29]. 277 U. S. 438, 48 Sup. Ct. 564 (1928).

[30]. 242 N. Y. 13, 150 N. E. 585 (1926), noted in I I CORN. L. Q. 250 (1926).

[31]. For other instances of judicial differences of opinion on assumed conditions, without scientific information, see Waite, "Caveat Emptor and the Judicial Process," 25 COL. L. REV. 129 (1925); Waite, "Public Policy and Personal Opinion," 19 MICH. L REV. 265 (1921).

[32]. 264 U. S. 504, 44 Sup. Ct. 412 (1924).

[33]. Mich. Comp. Laws (1929) § 16753.

[34]. The letter sent out was in form as follows:

(Date)

Officer_______________________________

Precinct No.___________________________

You are the arresting officer in the following Carrying Concealed Weapon case in which the defendant was not convicted.

Defendant_____________________________ Arrest date_____________

Disposition (dismissed, acquitted, etc.) _____________________________

Judge______________________________Disposition Date____________

In the space below, state in detail why the defendant was not convicted.

[35]. Other reasons for the failures are interesting. In nine instances the accused had jumped bail and either had not been rearrested or, in two cases, by the time he had been captured the gun found on him had been destroyed.

One prosecution was dismissed "because the original arrest was for simple larceny."

Twice the weapon was found on the floor of an automobile occupied by three men, with no evidence as to which of the three was responsible.

In another case the pistol had dropped to the ground between two men as they were being arrested and each disclaimed it.

Procedural methods accounted for one case. Trial had been postponed twice because the defendant failed to appear; the third time it was called, the arresting officer was not in court (he alleges lack of notice) and the prosecution was dismissed.

Four acquittals were based on extenuating circumstances, e.g. "Case against Catarno Fernandes was dismissed by the judge out of sympathy for the defendant when he learned that he had a sick wife and four children depending on him." (It does not appear what weapon the accused was carrying, nor why.)

A razor was held not to be a "weapon."

Three defendants were exonerated because they were on their own property. "Ed Ray was arrested in a hallway of an apartment house on Wilkins Street. He claimed that he lived in this apartment house, and Judge Scallen ruled that it was not a legal search. The gun was found concealed on his person, in the hallway of this apartment house." (The statute permits carrying in one's "dwelling house or place of business.")

Three other carriers were sent to insane asylums.

The impracticality of requiring "reason to believe" that a concealed weapon is being carried is indicated by this: "Judge Jeffries stated at the examination that because we saw the man take a gun from his pocket did not constitute a C. C. W. case, and dismissed the case."

[36]. As a matter of fact the writer's own observation, through considerable contact with the police and observation of their methods, is that the rule affirmatively creates unlawful practices instead of checking them. When the police are unable to prosecute arrested bootleggers and piggers in the courts, because the arrest is without such "reasonable cause to believe" as will satisfy the judicial rule, they do not refrain from making the arrests. They simply take into their own hands the punishment which the courts will not impose. That procedure has at least the virtue of checking bootlegging to some extent and of mitigating the criticism for incompetency which the press directs at the police. There are no data compiled to prove this, but any first-hand observation of police activities will demonstrate it.

[37]. State v. Whitley, (Mo. 1916) 183 S. W. 317.

[38]. Brooks v. Commonwealth, 61 Pa. 352 (1869).

[39]. Address at Annual Dinner, Am. L. Inst., May 7, 1932, in 18 A. B. A. J. 371.

[40]. O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 at 257, 51 Sup. Ct. 150 at 152 (1931).