Abel v. United States/Dissent Douglas
United States Supreme Court
ABEL v. UNITED STATES
Argued: Nov. 9, 1959. --- Decided: March 28, 1960
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.
Cases of notorious criminals-like cases of small, miserable ones-are apt to make bad law. When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. That practice, in certain periods of our history and in certain courts, has lowered our standards of law administration. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement. The present decision is an excellent example.
The opening wedge that broadened the power of administrative officers-as distinguished from police-to enter and search peoples' homes was Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. That case allowed a health inspector to enter a home without a warrant, even though he had ample time to get one. The officials of the Immigration and Naturalization Service (I.N.S.) are now added to the preferred list. They are preferred because their duties, being strictly administrative, put them in a separate category from those who enforce the criminal law. They need not go to magistrates, the Court says, for warrants of arrest. Their warrants are issued within the hierarchy of the agency itself.  Yet, as I attempted to show in my dissent in the Frank case, the Fourth Amendment in origin had to do as much with ferreting out heretics and collecting taxes as with enforcement of the criminal laws. 359 U.S., at pages 376-379, 79 S.Ct., at pages 813-815.
Moreover, the administrative officer who invades the privacy of the home may be only a front for the police who are thus saved the nuisance of getting a warrant. We need not go far to find examples. In Maryland v. Pettiford, Sup. Bench Balt. City, The Daily Record, Dec. 16, 1959, the police used the mask of a health inspector to make the Frank case serve as an easy way to get a search without a warrant. Happily, they were rebuked.  But that case shows the kind of problems the Frank doctrine generates. The present case is another example of the same kind, although here the police are not rebuked. The administrative official with an administrative warrant, over which no judicial official exercises any supervision and which by statute may be used only for deportation, performs a new role. The police wear his mask to do police work. That, in my view, may not be done, even though we assume that the administrative warrant issued by an administrative rather than a judicial officer is valid for an arrest for the purpose of deportation. We take liberties with an Act of Congress, as well as the Constitution, when we permit this to be done. The statute permits the arrest of an alien on an administrative warrant '(p)ending a determination of deportability.'  The Court now reads the Act as if it read 'Pending an investigation of criminal conduct.' Such was the nature of the arrest.
With due deference to the two lower courts, I think the record plainly shows that F.B.I. agents were the moving force behind this arrest and search. For at least a month they investigated the espionage activities of petitioner. They were tipped off concerning this man and his role in May; the arrest and search were made on June 21. The F.B.I. had plenty of time to get a search warrant, as much if not more time than they had in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, and Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876, where the Court held warrantless searches illegal. But the F.B.I. did not go to a magistrate for a search warrant. They went instead to the I.N.S. and briefed the officials of that agency on what they had discovered. On the basis of this data a report was made to John Murff, Acting District Director of the I.N.S., who issued the warrant of arrest.
No effort was made by the F.B.I. to obtain a search warrant from any judicial officer, though, as I said, there was plenty of time for such an application. The administrative warrant of arrest was chosen with care and calculation as the vehicle through which the arrest and search were to be made. The F.B.I. had an agreement with the officials of I.N.S. that this warrant of arrest would not be served at least until petitioner refused to 'cooperate.' The F.B.I. agents went with agents of the I.N.S. to apprehend petitioner in his hotel room. Again, it was the F.B.I. agents who were first. They were the ones who entered petitioner's room and who interrogated him to see if he would 'cooperate'; and when they were unable to get him to 'cooperate' by threatening him with arrest, they signaled agents of the I.N.S. who had waited outside to come in and make the arrest. The search was made both by the F.B.I. agents and by officers of the I.N.S. And when petitioner was flown 1,000 miles to a special detention camp and held for three weeks, the agents of the F.B.I. as well as I.N.S. interrogated him. 
Thus the F.B.I. used an administrative warrant to make an arrest for criminal investigation both in violation of § 242(a) of the Immigration and Nationality Act  and in violation of the Bill of Rights.
The issue is not whether these F.B.I. agents acted in bad faith. Of course they did not. The question is how far zeal may be permitted to carry officials bent on law enforcement. As Mr. Justice Brandeis once said, 'Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent.' Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944 (dissenting opinion). The facts seem to me clearly to establish that the F.B.I. agents wore the mask of I.N.S. to do what otherwise they could not have done. They did what they could do only if they had gone to a judicial officer pursuant to the requirements of the Fourth Amendment, disclosed their evidence, and obtained the necessary warrant for the searches which they made.
If the F.B.I. agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to 'particularly' describe 'the place to be searched' and the 'things to be seized.' How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!
In Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 294, 100 L.Ed. 233, federal police officers, who obtained evidence in violation of federal law governing searches and seizures and so lost their case in the federal court, repaired to a state court and proposed to use it there in a state criminal prosecution. The Court held that the Federal District Court could properly enjoin the federal official from using the illegal search and seizure as basis for testifying in the state court. The federal rules governing searches and seizures, we held, are 'designed as standards for federal agents' no more to be defeated by devious than by direct methods. The present case is even more palpably vulnerable. No state agency is involved. Federal police seek to do what immigration officials can do to deport a person but what our rules, statutes, and Constitution forbid the police from doing to prosecute him for a crime.
The tragedy in our approval of these short cuts is that the protection afforded by the Fourth Amendment is removed from an important segment of our life. We today forget what the Court said in Johnson v. United States, supra, 333 U.S. at page 14, 68 S.Ct. at page 369, that the Fourth Amendment provision for 'probable cause' requires that those inferences 'be drawn by a neutral and detached magistrate' not 'by the officer engaged in the often competitive enterprise of ferreting out crime.' This is a protection given not only to citizens but to aliens as well, as the opinion of the Court by implication holds. The right 'of the people' covered by the Fourth Amendment certainly gives security to aliens in the same degree that 'person' in the Fifth and 'the accused' in the Sixth Amendments also protects them. See Wong Wing v. United States, 163 U.S. 228, 242, 16 S.Ct. 977, 982, 411 L.Ed. 140. Here the F.B.I. works exclusively through an administrative agency-the I.N.S.-to accomplish what the Fourth Amendment says can be done only by a judicial officer. A procedure designed to serve administrative ends-deportation-is cleverly adapted to serve other ends-criminal prosecution. We have had like examples of this same trend in recent times. Lifting the requirements of the Fourth Amendment for the benefit of health inspectors was accomplished by Frank v. State of Maryland, as I have said. Allowing the Department of Justice rather than judicial officers to determine whether aliens will be entitled to release on bail pending deportation hearings is another. See Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547.
Some things in our protective scheme of civil rights are entrusted to the judiciary. Those controls are not always congenial to the police. Yet if we are to preserve our system of checks and balances and keep the police from being all-powerful, these judicial controls should be meticulously respected. When we read them out of the Bill of Rights by allowing short cuts as we do today and as the Court did in the Frank and Carlson cases, police and administrative officials in the Executive Branch acquire powers incompatible with the Bill of Rights.
The F.B.I. agents stalked petitioner for weeks and had plenty of time to obtain judicial warrants for searching the premises he occupied. I would require them to adhere to the command of the Fourth Amendment and not evade it by the simple device of wearing the masks of immigration officials while in fact they are preparing a case for criminal prosecution.
^1 Section 242(a) of the Immigration and Nationality Act of 1952, 66 Stat. 208, 8 U.S.C. § 1252(a), 8 U.S.C.A. § 1252(a), provides 'Pending a determination of deportability in the case of any alien * * * such alien may, upon warrant of the Attorney General, be arrested and taken into custody.'
^2 In the Pettiford case it appears that a police officer assigned to the Sanitation Division gained entrance into a home without a warrant and discovered that the defendant who occupied the premises was engaged in lottery activities. He then signaled to a policeman in charge of gambling activities who was waiting outside in accordance with a prior agreement. Lottery slips were seized and over the defendant's objection were received in evidence in a criminal trial. A motion for a new trial was granted. The Supreme Bench of Baltimore City said in its opinion:
'Section 120 of Article 12, of the Baltimore City Code provides that if the Commissioner of Health has cause to suspect that a nuisance exists in any home, he may demand entry therein in the daytime and the owner or occupier is subject to a fine if entry is denied. A conviction under this Section by the Criminal Court of Baltimore City was sustained by the Supreme Court of the United States in a five to four decision. Frank vs. (State of) Maryland (359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877). * * *
'In this case, it is evident that a principal, if not the chief purpose of the entry of the police officer assigned to the sanitation division was to endeavor to secure evidence of a lottery violation for his colleague. 'The security of one's privacy against arbitrary intrusion by the police * * * is basic to a free society.' Wolf vs. (People of State of) Colorado, 338 U.S. 25, 27 (69 S.Ct. 1359, 1361, 93 L.Ed. 1782). An exception to that security, upheld because indispensible for the maintenance of the community health, is not to be used to cover searches without warrants inconsistent with the conceptions of human rights (embodied) in our State and Federal Constitutions.'
^3 Note 1, supra.
^4 Immigration officials (who often claim that their actions have an administrative finality beyond the reach of courts, see Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881; Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242) have no authority to detain suspects for secret interrogation. See United States v. Minker, 350 U.S. 179, 76 S.Ct. 281, 100 L.Ed. 185.
^5 Note 1, supra.