# Jones v. United States (357 U.S. 493)/Dissent Clark

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* Dissenting Opinion Clark
United States Supreme Court
357 U.S. 493
Jones v. United States (357 U.S. 493)
Argued: April 7, 8, 1958. --- Decided: June 30, 1958
Mr. Justice CLARK, with whom Mr. Justice BURTON concurs, dissenting.
Although there are many ways to kill a cat, drowning remains the most favored. The Court applies that method to this conviction drowning it by watering down the Findings of Fact and Conclusions of Law. By attributing to them a diluted meaning, the judgments of the District Court and the Court of Appeals are rendered insupportable.
The District Court found that the officers in this moonshine liquor case received information that petitioner, previously known to them as a liquor law violator, was operating an illicit distillery in his home. In the course of an investigation the officers (1) found 'spent mash' flowing from a hose which was traced to within 75 yards of the house, (2) heard a 'blower burner' of the type generally used in illicit distilleries, (3) smelled the odor of hot mash coming from the house, and (4) heard the moving of heavy objects from within the house. These observations were gained over a two-day period. On the third day the officers returned with a daylight search warrant, but decided to resume surveillance instead of immediately executing the warrant. After dark, as one person left the house to walk up the road, the officers heard conversation, specifically, an inquiry as to whether 'they were ready for the truck to be brought to the house.' An empty truck then entered the yard and drove to the back door of the house, where a thumpting sound suggesting 'activity with heavy objects' was heard. The truck, heavily laden, became stuck on its attempt to leave the yard; its two occupants then were arrested, and its contents-413 gallons of nontax paid liquor-were seized. Thereafter, petitioner's wife and son, who had just arrived, attempted to bar the officers' entry into the house, telling them to wait until petitioner returned. The officers entered anyway, and in the course of a search, found the disputed evidence. The record reveals that petitioner was not found in the search of the premises, but was arrested when he returned later in the evening.
From these findings common sense would seem to dictate the conclusion that the officers, not believing the statement of petitioner's wife that he was not there, entered the house to find and arrest petitioner. It was his house, he was known as a prior offender, and it was he who was implicated by the tip which launched the investigation. The district judge, in fact, concluded that 'the officers had reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that Roy Jones was guilty of the offense of operating an illicit distillery in his home * * *.' The Court, however, takes these findings and conclusions to mean that both the District Court and the Court of Appeals considered the search and seizure justified 'because the officers had probable cause to believe that petitioner's house contained contraband materials which were being utilized in the commission of a crime, and not because the search and seizure were incident to petitioner's arrest.'
It is our duty, when the meaning of the findings is somewhat doubtful, to so construe them as to conform with and uphold the judgment. Cf. Larkin v. Upton, 1892, 144 U.S. 19, 21, 12 S.Ct. 614, 36 L.Ed. 330; Loring v. Frue, 1881, 104 U.S. 223, 224, 26 L.Ed. 713. This the Court has not done. The Court's construction is all the more surprising because it places the judgments below in direct conflict with an elementary rule of hornbook law, namely, that officers may not search a dwelling without a warrant 'notwithstanding facts unquestionably showing probable cause.' Agnello v. United States, 1925, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145. I feel certain the four learned judges on the two lower courts were well acquainted with the Agnello rule, and that they used the words 'probable cause' as referring not ultimately to the search of the premises, but instead to the arrest of petitioner and any others violating the law within the house. This is borne out by the definition with which the trial judge introduced the crucial paragraph of his Conclusions of Law: 'Probable cause is reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged.' Furthermore, the trial judge relied on United States v. Rabinowitz, 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, a case where the legality of a search hinged on the legality of an arrest. The majority, noting the judge's use of Rabinowitz, would have us believe that the case 'has no application here'; on the contrary, it would appear that the majority has overlooked the only reason for which the case was cited.
I submit that the officers had authority to enter the house, arrest any persons engaged in the illicit operation, and, not finding petitioner, arrest him upon his return to the scene. Under the law as I have always understood it, an officer, even over protest, may enter a house to make an arrest where he has probable cause to believe that a felony is being or has been committed and that the perpetrators are in the house. Mullaney v. United States, 9 Cir., 82 F.2d 638; Appell v. United States, 5 Cir., 29 F.2d 279; Mattus v. United States, 9 Cir., 11 F.2d 503; 1 Wharton, Criminal Procedure (10th ed.), § 51; Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 800-807. Cf. Taylor v. United States, 1932, 286 U.S. 1, 6, 52 S.Ct. 466, 467, 76 L.Ed. 951; Agnello v. United States, supra, 269 U.S. at page 30, 46 S.Ct. at page 5. There being probable cause here to believe that a felon was within the house, the entry of the officers was lawful, even though after a complete search the belief was found to be incorrect. Love v. United States, 4 Cir., 170 F.2d 32, 33. Such a circumstance 'cannot be distinguished on any reasonable basis from the search of the premises of an accused as an incident to the lawful arrest of his person * * *.' Martin v. United States, 4 Cir., 183 F.2d 436, 439.
Since the entry of petitioner's home was lawful, the officers had a right to seize the contraband property. The only test is the lawfulness of the officers' activity when they come upon the offending property. If the seizure follows a lawful entry to effect an arrest, as here, then it is valid. See Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, seizure during lawful search incident to arrest for another crime; Steele v. United States, 1925, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757, seizure during execution of warrant for different property.
I believe that these principles control here, and would, therefore, affirm.

## 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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