# Whiteley v. Warden, Wyoming State Penitentiary

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## Dissenting Opinion

    Black
United States Supreme Court
401 U.S. 560
Whiteley v. Warden, Wyoming State Penitentiary
Certiorari to the United States Court of Appeals for the Tenth Circuit
No. 136. Argued: January 13, 1971. --- Decided: March 29, 1971
A sheriff, acting on a tip, made a complaint before a magistrate charging that petitioner and another individual on the date and at the place named "did then and there unlawfully break and enter into [the described] locked... building," and a warrant was issued. A police radio bulletin named and described the two persons, the type of car they were probably driving, and the amount and type of money taken. Relying on the bulletin, an officer in another county made a warrantless arrest of the suspects. The car was then searched and various incriminating items removed, which were later used at petitioner's trial, which resulted in his conviction. Petitioner filed a habeas corpus petition reiterating the challenge he had made at his arraignment and trial to the constitutionality of the use of evidence seized during a search incident to the assertedly illegal arrest. The District Court denied the petition, and the Court of Appeals affirmed.
Held:
    1. Petitioner's arrest violated his rights under the Fourth and Fourteenth Amendments and the evidence secured incident thereto should have been excluded from his trial. Pp. 564-569.
       (a) The complaint, which did not mention that the sheriff acted on an informer's tip, and which consisted of no more than the sheriff's conclusion that the individuals named committed the offense, could not support the independent judgment of a disinterested magistrate. P. 565.
       (b) The standards applicable to the factual basis for an arresting officer's probable-cause assessment are no less strict than those applicable to the magistrate's assessment. Here the arresting officer had no information to corroborate the report that the suspects had committed the crime and the fact that the warrantless arrest was based on a police radio bulletin cannot supply the element of probable cause that the officer who issued the bulletin lacked. Pp. 565-567.
    2. Since, notwithstanding petitioner's constitutional challenge at each stage, respondent made no attempt to show that the magistrate had more information than was presented in the complaint, he may not attempt to do so now on remand; and the writ must issue unless the State appropriately arranges to retry the petitioner. P. 569.
416 F. 2d 36, reversed and remanded.
HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. BLACK, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 570. BLACKMUN, J., filed a dissenting statement, post, p. 575.
William J. Knudsen, Jr., argued the cause for petitioner. With this on the briefs was Richard A. Mullens.
Jack Speight, Assistant Attorney General of Wyoming, argued the cause for respondent. With him on the brief was James E. Barrett, Attorney General.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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