U.S.

Supreme Court

Ker v. California, 374 U.S. 23 (1963)

Ker v. California

No. 53

Argued December 11, 1962

Decided June 10, 1963

374 U.S. 23

Syllabus

1. The prohibition of the Fourth Amendment against unreasonable searches and

seizures, which forbids the Federal Government to convict a man of crime by using
evidence obtained from him by unreasonable search and seizure, is enforceable against
the States through the Fourteenth Amendment by the same sanction of exclusion and
by the application of the same constitutional standard prohibiting "unreasonable
searches and seizures," as defined in the Fourth Amendment. Mapp v. Ohio, 367 U. S.
643. Pp. 374 U. S. 30-34.

(a) This Court's long-established recognition that standards of reasonableness under

the Fourth Amendment are not susceptible of Procrustean application is carried forward
when that Amendment's proscriptions are enforced against the States through the
Fourteenth Amendment. P. 374 U. S. 33.

(b) The reasonableness of a search is, in the first instance, a substantive determination
to be made by the trial court from the facts and circumstances of the case and in the
light of the "fundamental criteria" laid down by the Fourth Amendment and in the
opinions of this Court applying that Amendment, as distinguished from the exercise of
its supervisory powers over federal courts; but findings of reasonableness by a trial
court are respected only insofar as they are consistent with federal constitutional
guarantees. P. 374 U. S. 33.

(c) The States are not precluded from developing working rules governing arrests,
searches and seizures to meet "the practical demands of effective criminal investigation
and law enforcement," provided that those rules do not violate the constitutional
proscription of unreasonable searches and seizures and the concomitant command that
evidence so seized is inadmissible against one who has standing to complain. P. 374 U.
S. 34.

2. Having reason to believe that one of the petitioners was selling marijuana and had
just purchased some from a person who was known to be a dealer in marijuana,
California police officers, without a search warrant, used a passkey to enter the
apartment occupied chanrobles.com-red

Page 374 U. S. 24

by petitioners, husband and wife, arrested them on suspicion of violating the State
Narcotic Law, searched their apartment, and found three packages of marijuana, which
they seized. At petitioners' trial, these packages of marijuana were admitted in evidence
over petitioners' objection, and they were convicted. In affirming the convictions, the
California District Court of Appeal found that there was probable cause for the arrests;
that the entry into the apartment was for the purpose of arrest and was not unlawful;
and that the search, being incident to the arrests, was likewise lawful and its fruits
admissible in evidence against petitioners. Held: The judgment is affirmed. Pp. 374 U.
S. 34-44.

195 Cal. App. 2d 246, 15 Cal. Rptr. 767, affirmed.

MR. JUSTICE CLARK delivered the opinion of the Court with reference to the standard
by which state searches and seizures must be evaluated (Part I), together with an
opinion applying that standard, in which MR. JUSTICE BLACK, MR. JUSTICE
STEWART and MR. JUSTICE WHITE join (Parts II-V), and announced the judgment of
the Court.

This case raises search and seizure questions under the rule of Mapp v. Ohio, 367 U.
S. 643 (1961). Petitioners, husband and wife, were convicted of possession of
marijuana in violation of § 11530 of the California Health and Safety Code. The
California District Court of Appeal affirmed, 195 Cal.App.2d 246, 15 Cal.Rptr. 767,
despite the contention of petitioners that their arrests in their chanrobles.com-red

Page 374 U. S. 25

apartment without warrants lacked probable cause, [Footnote 1] and the evidence
seized incident thereto and introduced at their trial was therefore inadmissible. The
California Supreme Court denied without opinion a petition for hearing. This being the
first case arriving here since our opinion in Mapp which would afford suitable
opportunity for further explication of that holding in the light of intervening experience,
we granted certiorari. 368 U.S. 974. We affirm the judgment before us.

The state courts' conviction and affirmance are based on these events, which
culminated in the petitioners' arrests. Sergeant Cook of the Los Angeles County
Sheriff's Office, in negotiating the purchase of marijuana from one Terrhagen,
accompanied him to a bowling alley about 7 p.m. on July 26, 1960, where they were to
meet Terrhagen's "connection." Terrhagen went inside and returned shortly, pointing to
a 1946 DeSoto as his "connection's" automobile and explaining that they were to meet
him "up by the oil fields" near Fairfax and Slauson Avenues in Los Angeles. As they
neared that location, Terrhagen again pointed out the DeSoto traveling ahead of them,
stating that the "connection" kept his supply of narcotics "somewhere up in the hills."
They parked near some vacant fields in the vicinity of the intersection of Fairfax and
Slauson, and, shortly thereafter, the DeSoto reappeared and pulled up beside them.
The deputy then recognized the driver as one Roland Murphy, whose "mug" photograph
he had seen and whom he knew from other narcotics officers to be a large-scale seller
of marijuana currently out on bail in connection with narcotics charges. chanrobles.com-
red

Page 374 U. S. 26

Terrhagen entered the DeSoto and drove off toward the oil fields with Murphy, while the
Sergeant waited. They returned shortly, Terrhagen left Murphy's car carrying a package
of marijuana and entered his own vehicle, and they drove to Terrhagen's residence.
There, Terrhagen cut one pound of marijuana and gave it to Sergeant Cook, who had
previously paid him. The Sergeant later reported this occurrence to Los Angles County
Officers Berman and Warthen, the latter of whom had observed the occurrences as
well.

On the following day, July 27, Murphy was placed under surveillance. Officer Warthen,
who had observed the Terrhagen-Murphy episode the previous night, and Officer
Markman were assigned this duty . At about 7 p.m. that evening, they followed Murphy's
DeSoto as he drove to the same bowling alley in which he had met Terrhagen on the
previous evening. Murphy went inside, emerged in about 10 minutes, and drove to a
house where he made a brief visit. The officers continued to follow him but, upon losing
sight of his vehicle, proceeded to the vicinity of Fairfax and Slauson Avenues, where
they parked. There, immediately across the street from the location at which Terrhagen
and Sergeant Cook had met Murphy on the previous evening, the officers observed a
parked automobile whose lone occupant they later determined to be the petitioner
George Douglas Ker.

The officers then saw Murphy drive past them. They followed him but lost sight of him
when he extinguished his lights and entered the oil fields. The officers returned to their
vantage point and, shortly thereafter, observed Murphy return and park behind Ker.
From their location approximately 1,000 feet from the two vehicles, they watched
through field glasses. Murphy was seen leaving his DeSoto and walking up to the
driver's side of Ker's car, where he "appeared to have conversation with him." It was
shortly before 9 p.m., and the distance in the chanrobles.com-red

Page 374 U. S. 27

twilight was too great for the officers to see anything pass between Murphy and Ker or
whether the former had anything in his hands as he approached.

While Murphy and Ker were talking, the officers had driven past them in order to see
their faces closely and in order to take the license number from Ker's vehicle. Soon
thereafter, Ker drove away, and the officers followed him, but lost him when he made a
U-turn in the middle of the block and drove in the opposite direction. Now, having lost
contact with Ker, they checked the registration with the Department of Motor Vehicles
and ascertained that the automobile was registered to Douglas Ker at 4801 Slauson.
They then communicated this information to Officer Berman, within 15 to 30 minutes
after observing the meeting between Ker and Murphy. Though officers Warthen and
Markman had no previous knowledge of Ker, Berman had received information at
various times, beginning in November of 1959, that Ker was selling marijuana from his
apartment and that "he was possibly securing this Marijuana from Ronnie Murphy, who
is the alias of Roland Murphy." In early 1960, Officer Berman had received a "mug"
photograph of Ker from the Inglewood Police Department. He further testified that,
between May and July 27, 1960, he had received information as to Ker from one Robert
Black, who had previously given information leading to at least three arrests and whose
information was believed by Berman to be reliable. According to Officer Berman, Black
had told him on four or five occasions after May, 1960, that Ker and others, including
himself, had purchased marijuana from Murphy. [Footnote 2] chanrobles.com-red

Page 374 U. S. 28

Armed with the knowledge of the meeting between Ker and Murphy and with Berman's
information as to Ker's dealings with Murphy, the three officers and a fourth, Officer
Love, proceeded immediately to the address which they had obtained through Ker's
license number. They found the automobile which they had been following -- and which
they had learned was Ker's -- in the parking lot of the multiple-apartment building and
also ascertained that there was someone in the Kers' apartment. They then went to the
office of the building manager and obtained from him a passkey to the apartment.
Officer Markman was stationed outside the window to intercept any evidence which
might be ejected, and the other three officers entered the apartment. Officer Berman
unlocked and opened the door, proceeding quietly, he testified, in order to prevent the
destruction of evidence, [Footnote 3] and found petitioner George Ker sitting in the living
room. Just as he identified himself, stating that "We are Sheriff's Narcotics Officers,
conducting a narcotics investigation," petitioner Diane Ker emerged from the kitchen.
Berman testified that he repeated his identification to her and immediately walked to the
kitchen. Without entering, he observed through the open doorway a small scale atop the
kitchen sink, upon which lay a "brick-like-brick-shaped package containing the green
leafy substance" which he recognized as marijuana. He beckoned the petitioners into
the kitchen where, following their denial of knowledge of the contents of the two and
two-tenths pound package and chanrobles.com-red

Page 374 U. S. 29

failure to answer a question as to its ownership, he placed them under arrest for
suspicion of violating the State Narcotic Law. Officer Markman testified that he entered
the apartment approximately "a minute, minute and a half" after the other officers, at
which time Officer Berman was placing the petitioners under arrest. As to this sequence
of events, petitioner George Ker testified that his arrest took place immediately upon the
officers' entry and before they saw the brick of marijuana in the kitchen.
Subsequent to the arrest and the petitioners' denial of possession of any other
narcotics, the officers, proceeding without search warrants, found a half-ounce package
of marijuana in the kitchen cupboard and another atop the bedroom dresser. Petitioners
were asked if they had any automobile other than the one observed by the officers, and
George Ker replied in the negative, while Diane remained silent. On the next day,
having learned that an automobile was registered in the name of Diane Ker, Officer
Warthen searched this car without a warrant, finding marijuana and marijuana seeds in
the glove compartment and under the rear seat. The marijuana found on the kitchen
scale, that found in the kitchen cupboard and in the bedroom, and that found in Diane
Ker's automobile [Footnote 4] were all introduced into evidence against the petitioners.

The California District Court of Appeal in affirming the convictions found that there was
probable cause for the arrests; that the entry into the apartment was for the purpose of
arrest and was not unlawful; and that the search being incident to the arrests was
likewise lawful and its fruits admissible in evidence against petitioners. These
conclusions were essential to the affirmance, since the California Supreme Court in
1955 had held that evidence chanrobles.com-red

Page 374 U. S. 30

obtained by means of unlawful searches and seizures was inadmissible in criminal

trials. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. The court concluded that, in view
of its findings and the implied findings of the trial court, this Court's intervening decision
in Mapp v. Ohio, supra, did "not justify a change in our original conclusion." 195
Cal.App.2d, at 257, 15 Cal.Rptr., at 773.

In Mapp v. Ohio, at 367 U. S. 646-647, 367 U. S. 657, we followed Boyd v. United

States, 116 U. S. 616, 116 U. S. 630 (1886), which held that the Fourth Amendment,
[Footnote 5] implemented by the self-incrimination clause of the Fifth, [Footnote 6]
forbids the Federal Government to convict a man of crime by using testimony or papers
obtained from him by unreasonable searches and seizures as defined in the Fourth
Amendment. We specifically held in Mapp that this constitutional prohibition is
enforceable against the States through the Fourteenth Amendment. [Footnote 7] This
means, as we said in Mapp, that the Fourth Amendment "is enforceable against them
(the states) by the same sanction of exclusion as is used against the Federal
Government," by the application of the same constitutional standard prohibiting
"unreasonable chanrobles.com-red

Page 374 U. S. 31

searches and seizures." 367 U.S. at 367 U. S. 655. We now face the specific question
as to whether Mapp requires the exclusion of evidence in this case which the California
District Court of Appeals has held to be lawfully seized. It is perhaps ironic that the initial
test under the Mapp holding comes from California, whose decision voluntarily to adopt
the exclusionary rule in 1955 has been commended by us previously. See Mapp v.
Ohio, supra, at 367 U. S. 651-652; Elkins v. United States, 364 U. S. 206, 364 U. S.
220 (1960).

Preliminary to our examination of the search and seizures involved here, it might be
helpful for us to indicate what was not decided in Mapp. First, it must be recognized that
the

"principles governing the admissibility of evidence in federal criminal trials have not
been restricted . . . to those derived solely from the Constitution. In the exercise of its
supervisory authority over the administration of criminal justice in the federal courts . . .
this Court has . . . formulated rules of evidence to be applied in federal criminal
prosecutions."

McNabb v. United States, 318 U. S. 332, 318 U. S. 341 (1943); cf. Miller v. United

States, 357 U. S. 301 (1958); Nardone v. United States, 302 U. S.
379 (1937). Mapp, however, established no assumption by this Court of supervisory
authority over state courts, cf. Cleary v. Bolger, 371 U. S. 392, 371 U. S. 401 (1963),
and, consequently, it implied no total obliteration of state laws relating to arrests and
searches in favor of federal law. Mapp sounded no death knell for our federalism;
rather, it echoed the sentiment of Elkins v. United States, supra, at 364 U. S. 221, that
"a healthy federalism depends upon the avoidance of needless conflict between state
and federal courts" by itself urging that

"[f]ederal-state cooperation in the solution of crime under constitutional standards will be

promoted, if only by recognition of their now mutual obligation to respect the same
fundamental criteria in their approaches."

367 U.S. at 367 U. S. 658. (Emphasis added.) Second, Mapp did not attempt the
impossible task of laying chanrobles.com-red

Page 374 U. S. 32

down a "fixed formula" for the application in specific cases of the constitutional
prohibition against unreasonable searches and seizures; it recognized that we would be
"met with "recurring questions of the reasonableness of searches," and that, "at any
rate, "[r]easonableness is in the first instance for the [trial court] to
determine," id., at 367 U. S. 653, thus indicating that the usual weight be given to
findings of trial courts.

Mapp, of course, did not lend itself to a detailed explication of standards, since the
search involved there was clearly unreasonable, and bore no stamp of legality even
from the Ohio Supreme Court. Id., at 367 U. S. 643-645. This is true also of Elkins v.
United States, where all of the courts assumed the unreasonableness of the search in
question and this Court "invoked" its "supervisory power over the administration of
criminal justice in the federal courts," 364 U.S. at 364 U. S. 216, in declaring that the
evidence so seized by state officers was inadmissible in a federal prosecution. The
prosecution being in a federal court, this Court of course announced that

"[t]he test is one of federal law, neither enlarged by what one state court may have
countenanced nor diminished by what another may have colorably suppressed."

Id. at 364 U. S. 224. Significant in the Elkins holding is the statement, apposite here,

that

"it can fairly be said that, in applying the Fourth Amendment, this Court has seldom
shown itself unaware of the practical demands of effective criminal investigation and law
enforcement."

Id. at 364 U. S. 222.

Implicit in the Fourth Amendment's protection from unreasonable searches and seizures
is its recognition of individual freedom. That safeguard has been declared to be "as of
the very essence of constitutional liberty," the guaranty of which "is as important and as
imperative as are the guaranties of the other fundamental rights of the individual citizen.
. . ." Gouled v. United States, 255 U. S. 298, 255 U. S. 304 (1921); @cf. 287 U. S. 65-
68 (1932). While the language of the Amendment is "general," it

"forbids every search that is unreasonable; it protects all, those suspected or known as
to be offenders as well as the innocent, and unquestionably extends to the premises
where the search was made. . . ."

Go-Bart Importing Co. v. United States, 282 U. S. 344, 282 U. S. 357 (1931). MR.

JUSTICE Butler there stated for the Court that

"[t]he Amendment is to be liberally construed and all owe the duty of vigilance for its
effective enforcement lest there shall be impairment of the rights for the protection of
which it was adopted."

Ibid. He also recognized that "[t]here is no formula for the determination of

reasonableness. Each case is to be decided on its own facts and circumstances." Ibid.;
see United States v. Rabinowitz, 339 U. S. 56, 339 U. S. 63 (1950); Rios v. United
States, 364 U. S. 253, 364 U. S. 255 (1960).

This Court's long-established recognition that standards of reasonableness under the

Fourth Amendment are not susceptible of Procrustean application is carried forward
when that Amendment's proscriptions are enforced against the States through the
Fourteenth Amendment. And, although the standard of reasonableness is the same
under the Fourth and Fourteenth Amendments, the demands of our federal system
compel us to distinguish between evidence held inadmissible because of our
supervisory powers over federal courts and that held inadmissible because prohibited
by the United States Constitution. We reiterate that the reasonableness of a search is,
in the first instance, a substantive determination to be made by the trial court from the
facts and circumstances of the case and in the light of the "fundamental criteria" laid
down by the Fourth Amendment and in opinions of this Court applying that Amendment.
Findings of reasonableness, of course, are respected only insofar as consistent with
federal constitutional guarantees. As we have stated above and in other cases
involving chanrobles.com-red

Page 374 U. S. 34

federal constitutional rights, findings of state courts are by no means insulated against
examination here. See, e.g., Spano v. New York, 360 U. S. 315, 360 U. S.
316 (1959); Thomas v. Arizona, 356 U. S. 390, 356 U. S. 393 (1958); Pierre v.
Louisiana, 306 U. S. 354, 306 U. S. 358 (1939). While this Court does not sit as in nisi
prius to appraise contradictory factual questions, it will, where necessary to the
determination of constitutional rights, make an independent examination of the facts, the
findings, and the record so that it can determine for itself whether in the decision as to
reasonableness the fundamental -- i.e., constitutional -- criteria established by this Court
have been respected. The States are not thereby precluded from developing workable
rules governing arrests, searches and seizures to meet "the practical demands of
effective criminal investigation and law enforcement" in the States, provided that those
rules do not violate the constitutional proscription of unreasonable searches and
seizures and the concomitant command that evidence so seized is inadmissible against
one who has standing to complain. See Jones v. United States, 362 U. S. 257 (1960).
Such a standard implies no derogation of uniformity in applying federal constitutional
guarantees, but is only a recognition that conditions and circumstances vary just as do
investigative and enforcement techniques.

Applying this federal constitutional standard we proceed to examine the entire record
including the findings of California's courts to determine whether the evidence seized
from petitioners was constitutionally admissible under the circumstances of this case.

II

The evidence at issue, in order to be admissible, must be the product of a search

incident to a lawful arrest, since the officers had no search warrant. The lawfulness of
the arrest without warrant, in turn, must be based upon chanrobles.com-red

Page 374 U. S. 35

probable cause, which exists

"where 'the facts and circumstances within their [the officers'] knowledge and of which
they had reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that' an offense has been or is being
committed."
Brinegar v. United States, 338 U. S. 160, 338 U. S. 175-176 (1949), quoting
from Carroll v. United States, 267 U. S. 132, 267 U. S. 162 (1925); accord, People v.
Fischer, 49 Cal.2d 442, 317 P.2d 967 (1957); Bompensiero v. Superior Court, 44 Cal.2d
178, 281 P.2d 250(1955). The information within the knowledge of the officers at the
time they arrived at the Kers' apartment, as California's courts specifically found, clearly
furnished grounds for a reasonable belief that petitioner George Ker had committed and
was committing the offense of possession of marijuana. Officers Markman and Warthen
observed a rendezvous between Murphy and Ker on the evening of the arrest which
was a virtual reenactment of the previous night's encounter between Murphy, Terrhagen
and Sergeant Cook, which concluded in the sale by Murphy to Terrhagen and the
Sergeant of a package of marijuana of which the latter had paid Terrhagen for one
pound which he received from Terrhagen after the encounter with Murphy. To be sure,
the distance and lack of light prevented the officers from seeing and they did not see
any substance pass between the two men, but the virtual identity of the surrounding
circumstances warranted a strong suspicion that the one remaining element -- a sale of
narcotics -- was a part of this encounter as it was the previous night. But Ker's arrest
does not depend on this single episode with Murphy. When Ker's U-turn thwarted the
officer's pursuit, they learned his name and address from the Department of Motor
Vehicles and reported the occurrence to Officer Berman. Berman, in turn, revealed
information from an informer whose reliability had been tested previously,
as chanrobles.com-red

Page 374 U. S. 36

well as from other sources, not only that Ker had been selling marijuana from his
apartment but also that his likely source of supply was Murphy himself. That this
information was hearsay does not destroy its role in establishing probable
cause. Brinegar v. United States,supra. In Draper v. United States, 358 U. S.
307 (1959), we held that information from a reliable informer, corroborated by the
agents' observations as to the accuracy of the informer's description of the accused and
of his presence at a particular place, was sufficient to establish probable cause for an
arrest without warrant. [Footnote 8] The corroborative elements in Draper were
innocuous in themselves, but here, both the informer's tip and the personal observations
connected Ker with specific illegal activities involving the same man, Murphy, a known
marijuana dealer. To say that this coincidence of information was sufficient to support a
reasonable belief of the officers that Ker was illegally in possession of marijuana is to
indulge in understatement.

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the
officers entered the apartment to arrest her husband, was nevertheless present at the
time of her arrest. Upon their entry and announcement of their identity, the officers were
met not only by George Ker, but also by Diane Ker, who was emerging from the kitchen.
Officer Berman immediately walked to the doorway from which she emerged and,
without entering, observed the brick-shaped package of marijuana in plain view. Even
assuming that her presence in chanrobles.com-red
Page 374 U. S. 37

a small room with the contraband in a prominent position on the kitchen sink would not
alone establish a reasonable ground for the officers' belief that she was in joint
possession with her husband, that fact was accompanied by the officers' information
that Ker had been using his apartment as a base of operations for his narcotics
activities. Therefore, we cannot say that, at the time of her arrest, there were not
sufficient grounds for a reasonable belief that Drane Ker, as well as her husband, as
committing the offense of possession of marijuana in the presence of the officers.

III

It is contended that the lawfulness of the petitioners arrests, even if they were based
upon probable cause, was vitiated by the method of entry. This Court, in cases under
the Fourth Amendment, was long recognized that the lawfulness of arrests for federal
offenses is to be determined by reference to state law insofar as it is not violative of the
Federal Constitution. Miller v . United States, supra; United States v. Di Re, 332 U. S.
581 (1948); Johnson v. United States, 333 U. S. 10, 333 U. S. 15, n. 5 (1948). A
fortiori, the lawfulness of these arrests by state officers for state offenses is to be
determined by California law. California Penal Code, § 844, [Footnote 9] permits peace
officers to break into a dwelling place for the purpose of arrest after demanding
admittance and explaining their purpose. Admittedly the officers did not comply with the
terms of this statute since they entered quietly and without announcement, in order to
prevent the destruction of contraband. The California District Court of
Appeal, chanrobles.com-red

Page 374 U. S. 38

however, held that the circumstances here came within a judicial exception which had
been engrafted upon the statute by a series of decisions, see, e.g., People v. Ruiz, 146
Cal.App.2d 630, 304 P.2d 1 75 (1956); People v. Maddox, 46 Cal.2d 301, 294 P.2d
6, cert. denied, 352 U.S. 858 (1956), and that the noncompliance was therefore lawful.

Since the petitioner's federal constitutional protection from unreasonable searches and
seizures by police officers is here to be determined by whether the search was incident
to a lawful arrest, we are warranted in examining that arrest to determine whether,
notwithstanding its legality under state law, the method of entering the home may offend
federal constitutional standards of reasonableness, and therefore vitiate the legality of
an accompanying search. We find no such offensiveness on the facts here. Assuming
that the officers' entry by use of a key obtained from the manager is the legal equivalent
of a "breaking," see Keiningham v. United States, 109 U.S.App.D.C. 272, 276, 287 F.2d
126, 130 (1960), it has been recognized from the early common law that such breaking
is permissible in executing an arrest under certain circumstances. See Wilgus, Arrest
Without a Warrant, 22 Mich.L.Rev. 541, 798, 800-806 (1924). Indeed, 18 U.S.C. § 3109,
[Footnote 10] dealing with the execution of search warrants by federal officers,
authorizes breaking of doors in words very similar to those of the California statute, both
statutes including a requirement of notice of authority and purpose. In Miller v. United
States, supra, this Court held unlawful an arrest, and therefore its accompanying
search, on the ground that the District of chanrobles.com-red

Page 374 U. S. 39

Columbia officers before entering a dwelling did not fully satisfy the requirement of
disclosing their identity and purpose. The Court stated that

"the lawfulness of the arrest without warrant is to be determined by reference to state

law. . . . By like reasoning the validity of the arrest of petitioner is to be determined by
reference to the law of the District of Columbia."

357 U.S. at 357 U. S. 305-306. The parties there conceded and the Court accepted that
the criteria for testing the arrest under District of Columbia law were "substantially
identical" to the requirements of § 3109. Id. at 357 U. S. 306. Here, however, the criteria
under California law clearly include an exception to the notice requirement where
exigent circumstances are present. Moreover, insofar as violation of a federal statute
required the exclusion of evidence in Miller, the case is inapposite for state
prosecutions, where admissibility is governed by constitutional standards. Finally, the
basis of the judicial exception to the California statute, as expressed by Justice Traynor
in People v. Maddox, 46 Cal.2d at 306, 294 P.2d, at 9, effectively answers the
petitioners' contention:

"It must be borne in mind that the primary purpose of the constitutional guarantees is to
prevent unreasonable invasions of the security of the people in their persons, houses,
papers, and effects, and when an officer has reasonable cause to enter a dwelling to
make an arrest and as an incident to that arrest is authorized to make a reasonable
search, his entry and his search are not unreasonable. Suspects have no constitutional
right to destroy or dispose of evidence, and no basic constitutional guarantees are
violated because an officer succeeds in getting to a place where he is entitled to be
more quickly than he would, had he complied with section 844. Moreover, since the
demand and explanation requirements

Page 374 U. S. 40

of section 844 are a codification of the common law, they may reasonably be interpreted
as limited by the common law rules that compliance is not required if the officer's peril
would have been increased or the arrest frustrated had he demanded entrance and
stated his purpose. (Read v. Case, 4 Conn. 166, 170 [10 Am.Dec.
110]; see Restatement, Torts, § 206, comment d.) Without the benefit of hindsight and
ordinarily on the spur of the moment, the officer must decide these questions in the first
instance."

No such exigent circumstances as would authorize noncompliance with the California

statute were argued in Miller, and the Court expressly refrained from discussing the
question, citing the Maddox case without disapproval. 357 U.S. at 357 U. S. 309.
[Footnote 11] Here justification for the officers' failure to give notice is uniquely present.
In addition to the officers' belief that Ker was in possession of narcotics, which could be
quickly and easily destroyed, Ker's furtive conduct in eluding them shortly before the
arrest was ground for the belief that he might well have been expecting the police.
[Footnote 12] We therefore hold that, in the particular chanrobles.com-red

Page 374 U. S. 41

circumstances of this case, the officers' method of entry, sanctioned by the law of
California, was not unreasonable under the standards of the Fourth Amendment as
applied to the States through the Fourteenth Amendment.

IV

Having held the petitioners' arrests lawful, it remains only to consider whether the
search which produced the evidence leading to their convictions was lawful as incident
to those arrests. The doctrine that a search without warrant may be lawfully conducted if
incident to a lawful arrest has long been recognized as consistent with the Fourth
Amendment's protection against unreasonable searches and seizures. See Marron v.
United States, 275 U. S. 192 (1927); Harris v. United States, 331 U. S. 145 (1947); Abel
v. United States, 362 U. S. 217 (1960); Kaplan, Search and Seizure: A No-Man's Land
in the Criminal Law, 49 Cal.L.Rev. 474, 490-493 (1961). The cases have imposed no
requirement that the arrest be under authority of an arrest warrant, but only that it be
lawful. See Marron v. United States, supra, at 275 U. S. 198-199; United States v.
Rabinowitz, supra, at 339 U. S. 61; cf. Agnello v. United States, 269 U. S. 20, 269 U. S.
30-31 (1925). The question remains whether the officers' action here exceeded the
recognized bounds of an incidental search.

Petitioners contend that the search was unreasonable in that the officers could
practicably have obtained a search warrant. The practicability of obtaining a warrant is
not the controlling factor when a search is sought to be justified as incident to
arrest, United States v. Rabinowitz, chanrobles.com-red

Page 374 U. S. 42

supra; but we need not rest the validity of the search here on Rabinowitz, since we
agree with the California court that time clearly was of the essence. The officers'
observations and their corroboration, which furnished probable cause for George Ker's
arrest, occurred at about 9 p.m., approximately one hour before the time of arrest. The
officers had reason to act quickly because of Ker's furtive conduct and the likelihood
that the marijuana would be distributed or hidden before a warrant could be obtained at
that time of night. [Footnote 13] Thus, the facts bear no resemblance to those
in Trupiano v. United States, 334 U. S. 699 (1948), where federal agents for three
weeks had been in possession of knowledge sufficient to secure a search warrant.
The search of the petitioners' apartment was well within the limits upheld in Harris v.
United States, supra, which also concerned a private apartment dwelling. The evidence
here, unlike that in Harris, was the instrumentality of the very crime for which petitioners
were arrested, and the record does not indicate that the search here was an extensive
in time or in area as that upheld in Harris.

The petitioners' only remaining contention is that the discovery of the brick of marijuana
cannot be justified as incidental to arrest since it preceded the arrest. This contention is,
of course, contrary to George Ker's testimony, but we reject it in any event. While an
arrest may not be used merely as the pretext for a search without warrant, the California
court specifically found and the record supports both that the officers entered the
apartment for chanrobles.com-red

Page 374 U. S. 43

the purpose of arresting George Ker and that they had probable cause to make that
arrest prior to the entry. [Footnote 14] We cannot say that it was unreasonable for
Officer Berman, upon seeing Diane Ker emerge from the kitchen, merely to walk to the
doorway of that adjacent room. We thus agree with the California court's holding that
the discovery of the brick of marijuana did not constitute a search, since the officer
merely saw what was placed before him in full view. United States v. Lee, 274 U. S.
559 (1927); United States v. Lefkowitz, 285 U. S. 452, 285 U. S. 465 (1932); People v.
West, 144 Cal.App.2d 214, 300 P.2d 729 (1956). Therefore, while California law does
not require that an arrest precede an incidental search as long as probable cause exists
at the outset, Wilson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36 (1956), the
California court did not rely on that rule and we need not reach the question of its status
under the Federal Constitution.

The petitioners state and the record bears out that the officers searched Diane Ker's
automobile on the day subsequent to her arrest. The reasonableness of that search,
however, was not raised in the petition for certiorari, nor was it discussed in the brief
here. Ordinarily "[w]e do not reach for constitutional questions not raised by the
parties," Mazer v. Stein, 347 U. S. 201, 347 U. S. 206, n. 5 (1954), nor extend our
review beyond those specific federal questions chanrobles.com-red

Page 374 U. S. 44

properly raised in the state court. The record gives no indication that the issue was
raised in the trial court or in the District Court of Appeal, the latter court did not
adjudicate it and we therefore find no reason to reach it on the record. [Footnote 15]

For these reasons, the judgment of the California District Court of Appeal is affirmed.

Affirmed.
[Footnote 1]

This contention was initially raised prior to the trial. Section 995, California Penal Code,
provides for a motion to set aside the information on the ground that the defendant has
been committed without probable cause. Evidence on that issue was presented out of
the presence of the jury, and, following the court's denial of the motion, the petitioners
were tried and convicted by the jury.

[Footnote 2]

During the hearing on the § 995 motion, see note 1 supra, Black testified for the
defense, admitting that he knew the petitioners but denying that he gave Officer Berman
information about George Ker. Black first denied, but then admitted, that he had met
with Officer Berman and another officer in whose presence Berman said the information
about Ker was given.

[Footnote 3]

Arresting Officers Berman and Warthen had been attached to the narcotics detail of the
Los Angeles County Sheriff's office for three and four years, respectively. Each had
participated in hundreds of arrests involving marijuana. Warthen testified that, on "many,
many occasions" in his experience with narcotics arrests,

"persons have flushed narcotics down toilets, pushed them down drains and sinks and
many other methods of getting rid of them prior to my entrance. . . ."

[Footnote 4]

For the reasons discussed in 374 U. S. we find that the validity of the search of the
automobile is not before us and we therefore do not pass on it.

[Footnote 5]

"The right of the people to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."

[Footnote 6]

"No person . . . shall be compelled in any criminal case to be a witness against himself. .
. ."

[Footnote 7]
Our holding as to enforceability of this federal constitutional rule against the States had
its source in the following declaration in Wolf v. Colorado, 338 U. S. 25, 338 U. S. 27-28
(1949):

"The security of one's privacy against arbitrary intrusion by the police -- which is at the
core of the Fourth Amendment -- is . . . implicit in 'the concept of ordered liberty' and as
such enforceable against the States through the Due Process Clause."

[Footnote 8]

In Draper, the arrest upon probable cause was authorized under 26 U.S.C. § 7607,
authorizing narcotics agents to make an arrest without warrant if they have "reasonable
grounds to believe that the person to be arrested has committed or is committing such
violation." Under § 836, California Penal Code, an officer may arrest without a warrant if
he has "reasonable cause to believe that the person to be arrested has committed a
felony. . . ."

[Footnote 9]

"To make an arrest, . . . in all cases a peace officer, may break open the door or window
of the house in which the person to be arrested is, or in which . . . [he has] reasonable
grounds for believing him to be, after having demanded admittance and explained the
purpose for which admittance is desired."

[Footnote 10]

"The officer may break open any outer or inner door or window of a house, or any part
of a house, or anything therein, to execute a search warrant, if, after notice of his
authority and purpose, he is refused admittance or when necessary to liberate himself
or a person aiding him in the execution of the warrant."

[Footnote 11]

Nor has the Court rejected the proposition that noncompliance may be reasonable in
exigent circumstances subsequent to Miller. In Wong Sun v. United States, 371 U. S.
471 (1963), the Court held that federal officers had not complied with § 3109 in
executing an arrest . There, the Court noted that, in Miller, it had reserved the question
of an exception in exigent circumstances and stated that,

"[h]ere, as in Miller, the Government claims no extraordinary circumstances -- such as

the imminent destruction of vital evidence, or the need to rescue a victim in peril -- . . .
which excused the officer's failure truthfully to state his mission before he broke in."

Id. at 371 U. S. 483-484.