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decided: June 23, 1969.



Warren, Black, Douglas, Harlan, Brennan, Stewart, White, Marshall

Author: Per Curiam

[ 395 U.S. Page 818]

 The petitioner was convicted in California of robbery in the first degree, and the conviction was affirmed by the Court of Appeal, Second Appellate District. The California Supreme Court denied review. The petitioner seeks reversal of the judgment below on the ground that evidence introduced at his trial was seized in violation

[ 395 U.S. Page 819]

     of the Fourth and Fourteenth Amendments to the United States Constitution. Since we agree with the petitioner that the evidence was taken in the course of an unconstitutional search of his home, the judgment of the California Court of Appeal must be reversed. Mapp v. Ohio, 367 U.S. 643.

Informed that the petitioner had been involved in a robbery, police officers went to his residence. The petitioner was not at home, but a 15-year-old girl who identified herself as the petitioner's wife allowed the officers to enter and search her belongings. When several rings taken by the robbers were found, the officers "staked out" the house and awaited the petitioner's return. Upon his arrival late that night, he was immediately arrested as he alighted from his car. The officers searched the petitioner and the car, and then again entered and searched the house, where they discovered under a couch a jewelry case stolen in the robbery. The car was parked outside the house and 15 or 20 feet away from it, and the officers did not request permission to conduct the second search of the house. No warrant was ever obtained. The trial court nevertheless upheld the second search on the ground that it was incident to the petitioner's arrest, and the Court of Appeal agreed, holding that the area searched was "under the [petitioner's] effective control" at the time of the arrest.

Under our decision today in Chimel v. California, ante, p. 752, the search clearly exceeded Fourth Amendment limitations on searches incident to arrest. But even if Chimel were to have no retroactive application -- a question which we reserve for a case which requires its resolution -- there is no precedent of this Court that justifies the search in this case. The Court has consistently held that a search "can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest."

[ 395 U.S. Page 820]

     MR. JUSTICE WHITE, dissenting.

I found inexplicable the Court's acceptance of the warrantless arrest in Chimel v. California, ante, p. 752, while at the same time holding the contemporaneous search invalid without considering the exigencies created by the arrest itself. See id., p. 770 (dissenting opinion). Even more mystifying are the opinions and the orders issued in the instant case and six others which have been held pending the decision in Chimel : No. 837, Von Cleef v. New Jersey, ante, p. 814; No. 1097, Misc., Harris v. Illinois, post, p. 985; No. 1037, Misc., Mahoney v. LaVallee, post, p. 985; No. 500, Schmear v. Gagnon, post, p. 978; No. 550, Misc., Jamison v. United States, post, p. 986; and No. 395, Misc., Chrisman v. California, post, p. 985. I fear that the summary dispositions in these cases, which strain so hard to avoid deciding the retroactivity of Chimel, will only magnify the confusion in this important area of the law.

It is particularly hard to square the Court's summary reversal of Shipley's conviction, which invalidates a warrantless search of a house where the arrest was made in a detached garage, with the denials of certiorari in Harris and Mahoney. In Harris, the arrest occurred in the lobby of a four-story apartment building; the ensuing search without a warrant involved an apartment on an upper floor. The chronology was reversed in Mahoney where petitioner was arrested in his apartment, but the accompanying search uncovered a gun in the building basement. This case, Shipley, purports to rest on pre- Chimel law, but certiorari in Harris and Mahoney cannot be denied without assuming the non-retroactivity of Chimel and then determining that these cases do not deserve the same summary reversal given to Shipley. In Schmear, Jamison, and Chrisman, as in Chimel, the Court fails to find a substantial issue in the warrantless

[ 395 U.S. Page 822]

     arrest and its bearing on the warrantless search. Finally, the per curiam in Von Cleef invokes Kremen v. United States, 353 U.S. 346 (1957), without noting that the seizures in Von Cleef were limited to evidence and instrumentalities of ...

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