source: Caselaw Access Project

author: Mr. Justice Goldberg Mr. Justice Harlan, Mr. Justice Clark,

license: Public Domain

text:
    AGUILAR v. TEXAS.
    No. 548.
    Argued March 25-26, 1964.
    Decided June 15, 1964.

      Clyde W. Woody argued the cause and filed a brief for petitioner.

      Carl E. F. Dally argued the cause for respondent. With him on the brief were Waggoner Carr, Attorney General of Texas, and Gilbert J. Pena, Assistant Attorney General.
   Mr. Justice Goldberg

delivered the opinion of the Court.

This case presents questions concerning the constitutional requirements for obtaining a state search warrant.

Two Houston police officers applied to a local Justice of the Peace for a warrant to search for narcotics in petitioner's home. In support of their application, the officers submitted an affidavit which, in relevant part, recited that:

“Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.”

The search warrant was issued.

In executing the warrant, the local police, along with federal officers, announced at petitioner’s door that they were police with a warrant. Upon hearing a commotion within the house, the officers forced their way into the house and seized petitioner in the act of attempting to dispose of a packet of narcotics.

At his trial in the state court, petitioner, through his attorney, objected to the introduction of evidence obtained as a result of the execution of the warrant. The objections were overruled and the evidence admitted. Petitioner was convicted of illegal possession of heroin and sentenced to serve 20 years in the state penitentiary. On appeal to the Texas Court of Criminal Appeals, the conviction was affirmed, 172 Tex. Cr. R. 629, 362 S. W. 2d 111, affirmance upheld on rehearing, 172 Tex. Cr. R. 631, 362 S. W. 2d 112. We granted a writ of certiorari to consider the important constitutional questions involved. 375 U. S. 812.

In Ker v. California, 374 U. S. 23, we held that the Fourth “Amendment’s proscriptions are enforced against the States through the Fourteenth Amendment,” and that “the standard of reasonableness is the same under the Fourth and Fourteenth Amendments.” Id., at 33. Although Ker involved a search without a warrant, that case must certainly be read as holding that the standard for obtaining a search warrant is likewise “the same under the Fourth and Fourteenth Amendments.”

An evaluation of the constitutionality of a search warrant should begin with the rule that “the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests.” United States v. Lefkowitz, 285 U. S. 452, 464. The reasons for this rule go to the foundations of the Fourth Amendment. A contrary rule “that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.” Johnson v. United States, 333 U. S. 10, 14. Under such a rule “resort to [warrants] would ultimately be discouraged.” Jones v. United States, 362 U. S. 257, 270. Thus, when a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less “judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,” ibid., and will sustain the judicial determination so long as “there was substantial basis for [the magistrate] to conclude that narcotics were probably present . . . .” Id., at 271. As so well stated by Mr. Justice Jackson:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, supra, at 13-14.

Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his “neutral and detached” function and not serve merely as a rubber stamp for the police.

In Nathanson v. United States, 290 U. S. 41, a warrant was issued upon the sworn allegation that the affiant “has cause to suspect and does believe” that certain merchandise was in a specified location. Id., at 44. The Court, noting that the affidavit “went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts,” id., at 46 (emphasis added), announced the following rule:

“Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.” Id., at 47. (Emphasis added.)

The Court, in Giordenello v. United States, 357 U. S. 480, applied this rule to an affidavit similar to that relied upon here. Affiant in that case swore that petitioner “did receive, conceal, etc., narcotic drugs . . . with knowledge of unlawful importation . . . .” Id., at 481. The Court announced the guiding principles to be:

“that the inferences from the facts which lead to the complaint '[must] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime/ Johnson v. United States, 333 U. S. 10, 14. The purpose of the complaint, then, is to enable the appropriate magistrate . . . to determine whether the 'probable cause’ required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion . . . .” 357 U. S., at 486.

The Court, applying these principles to the complaint in that case, stated that:

“it is clear that it does not pass muster because it does not provide any basis for the Commissioner’s determination . . . that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.” Ibid.

The vice in the present affidavit is at least as great as in Nathanson and Giordenello. Here the “mere conclusion” that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only “contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,” it does not even contain an “affirmative allegation” that the affiant’s unidentified source “spoke with personal knowledge.” For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession. The magistrate here certainly could not “judge for himself the persuasiveness of the facts relied on ... to show probable cause.” He necessarily accepted “without question” the informant’s “suspicion,” “belief” or “mere conclusion.”

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U. S. 257, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U. S. 528, was “credible”or his information “reliable.” Otherwise, “the inferences from the facts which lead to the complaint” will be drawn not “by a neutral and detached magistrate,” as the Constitution requires, but instead, by a police officer “engaged in the often competitive enterprise of ferreting out crime,” Giordenello v. United States, supra, at 486; Johnson v. United States, supra, at 14, or, as in this case, by an unidentified informant.

We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner’s trial.

The judgment of the Texas Court of Criminal Appeals is reversed and the case remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Harlan,

concurring.

But for Ker v. California, 374 U. S. 23, I would have voted to affirm the judgment of the Texas court. Given Ker, I cannot escape the conclusion that to do so would tend to “relax Fourth Amendment standards ... in derogation of law enforcement standards in the federal system . . .” (my concurring opinion in Ker, supra, at 45-46, emphasis added). Contrary to what is suggested in the dissenting opinion of my Brother Clark in the present case (post, p. 118, note 1), the standards laid down in Giordenello v. United States, 357 U. S. 480, did in my view reflect constitutional requirements. Being unwilling to relax those standards for federal prosecutions, I concur in the opinion of the Court.

Mr. Justice Clark,

whom Mr. Justice Black and Mr. Justice Stewart join,

dissenting.

First, it is well to point out the information upon which the search warrant in question was based: About January 1, 1960, Officers Strickland and Rogers from the narcotics division of the Houston Police Department received reliable information from a credible person that petitioner Aguilar had heroin and other narcotic drugs and narcotic paraphernalia in his possession at his residence, 509 Pinckney Street, Houston, Texas; after receiving this information the officers, the record indicates, kept the premises of petitioner under surveillance for about a week.

On January 8, 1960, the two officers applied for a search warrant and executed an affidavit before a justice of the peace in which they alleged under oath that petitioner’s residence at 509 Pinckney Street “is a place where we each have reason to believe and do believe that [Aguilar] . . . has in his possession therein narcotic drugs ... for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold.” In addition and in support of their belief, the officers included in the affidavit the further allegation that they “have received reliable information from a credible person and do believe that heroin . . . and other narcotics and narcotic paraphernalia are being kept at . . . [petitioner’s] premises for the purpose of sale and use contrary to the provisions of the law.”

Upon executing the warrant issued on the strength of this affidavit, the officers knocked on the door of Aguilar’s house. Someone inside asked who was there and the officers replied that they were police and that they had a search warrant. At this they heard someone “scuffle and start to run inside of the house.” The officers entered and pursued the petitioner, who ran into a back bathroom. Petitioner threw a packet of heroin into the commode, but an officer retrieved the packet before it could be flushed down the drain.

I.

At trial petitioner objected to the introduction into evidence of the heroin obtained through execution of the search warrant on the ground that the affidavit was “nothing more than hearsay.” The Court holds the affidavit insufficient and sets aside the conviction on the basis of two cases, neither of which is controlling.

First is Nathanson v. United States, 290 U. S . 41 (1933). In that case the affidavit stated that the affiant had “cause to suspect and [did] believe that certain merchandise” was in the premises described. There was nothing in Nathanson, either in the affidavit or in the other proof introduced at trial, to suggest that any facts had been brought out to support a reasonable belief or even a suspicion. Accordingly, the Court held that “[m]ere affirmance of belief or suspicion is not enough.” At 47. But in Fourth Amendment cases findings of reasonableness or of probable cause necessarily rest on the facts and circumstances of each particular case. In Aguilar, the affidavit was based not only on “affirmance of belief” but in addition upon “reliable information from a credible person” plus a week's surveillance by the affiants. (Emphasis supplied.) Nathanson is, therefore, not apposite.

The second case the Court relies on is Giordenello v. United States, 357 U. S. 480 (1958). There the affidavit alleged that “Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation . . . .” The opinion of the Court, by Mr. Justice Harlan, after discussing Rules 3 and 4 of the Federal Rules of Criminal Procedure, held that the defect in the complaint was that it “does not provide any basis for the Commissioner’s determination under Rule 4 that probable cause existed.” At 486. The dissent in the case, in commenting on the Court’s holding that the complaint was invalid, said: “The Court does not strike down this complaint directly on the Fourth Amendment, but merely on an extension of Rule 4.” At 491. Since Giordenello was a federal case, decided under our supervisory powers (Rules 3 and 4 of the Federal Rules of Criminal Procedure), it does not control here. As we said in Ker v. California, 374 U. S. 23, 33 (1963), “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.”

Even if Giordenello was rested on the Constitution, it would not be controlling here because of the significant differences in the facts of the two cases. In Giordenello the Court said: “The complaint . . . does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.” 357 U. S., at 486. (Emphasis supplied.) Here, in Aguilar’s case, the affidavit did allege a source for the complainant’s belief, i. e., “reliable information from a credible person . . . that heroin . . . and other narcotics . . . are being kept” in petitioner’s premises “for the purpose of sale and use contrary to the provisions of the law.” This takes the affidavit here entirely outside the Giordenello holding. In Giordenello no source of information was stated, whereas here there was a reliable one. The affidavit thus shows “probable cause” within the meaning of the Fourth Amendment, as that Amendment was interpreted by this Court in Draper v. United States, 358 U. S. 307 (1959), where it was contended that the information given by an informant to an officer was inadmissible because it was hearsay. The Court in Draper held that petitioner was “entirely in error. Brinegar v. United States . . . has settled the question the other way.” At 311. In the following year this was reaffirmed in Jones v. United States, 362 U. S. 257, 271 (1960): “We conclude therefore that hearsay may be the basis for a warrant.” Furthermore, in the case of Rugendorf v. United States, decided only this Term, we held an affidavit good based on information that an informer had seen certain furs in Rugendorf’s basement. 376 U. S. 528. In the Aguilar affidavit the informer told the officers that narcotics were actually “kept at the above described premises for the purpose of sale . . . The Court seems to hold that what the informer says is the test of his reliability. I submit that this has nothing to do with it. The officer’s experience with the informer is the test and here the two officers swore that the informer was credible and the information reliable. At the hearing on the motion to supress Officer Strickland testified that he delayed getting the search warrant for a week in order to “set up surveillance on the house.” The informant’s statement, Officer Strickland said, was “the first information” received and was only “some of” that which supported the application for the warrant. The totality of the circumstances upon which the officer relied is certainly pertinent to the validity of the warrant. See the use of such testimony in Oiordenello, supra, at 485, 486. And, just as in that case, there is nothing in the record here to show what the officers verbally told the magistrate. The surveillance of Aguilar’s house, which is confirmed by the State’s brief, apparently gave the officers further evidence upon which they based their personal belief. Hence the affidavit here is a far cry from “suspicion” or “affirmance of belief.” It was based on reliable information from a credible informant plus personal surveillance by the officers.

Furthermore, the Courts of Appeals have often approved affidavits similar to the one here. See, e. g., United States v. Eisner, 297 F. 2d 595 (C. A. 6th Cir.); Evans v. United States, 242 F. 2d 534 (C. A. 6th Cir.); United States v. Ramirez, 279 F. 2d 712, 715 (C. A. 2d Cir.) (dictum); and United States v. Meeks, 313 F. 2d 464 (C. A. 6th Cir.). We denied certiorari in Eisner, 369 U. S. 859, although the affidavit there stated only that “ [i] nformation has been obtained by S. A. Clifford Anderson . . . which he believes to be reliable . . . ,” 297 F. 2d, at 596, and in Evans, 353 U. S. 976, where the affiant was a man who “came to the headquarters of the federal liquor law enforcement officers and stated that he wished to give information . . . ,” 242 F. 2d, at 535.

In summary, the informátion must be more than mere wholly unsupported suspicion but less than “would justify condemnation,” as Chief Justice Marshall said in Locke v. United States, 7 Cranch 339, 348 (1813). As Chief Justice Taft said in Carroll v. United States, 267 U. S. 132, 162 (1925): Probable cause 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. And as Mr. Justice Rutledge so well stated in Brinegar v. United States, 338 U. S. 160, 176 (1949):

“These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”

Believing that the Court has substituted a rigid, academic formula for the unrigid standards of reasonableness and “probable cause” laid down by the Fourth Amendment itself — a substitution of technicality for practicality— and believing that the Court’s holding will tend to obstruct the administration of criminal justice throughout the country, I respectfully dissent.

       The record does not reveal, nor is it claimed, that any other information was brought to the attention of the Justice of the Peace. It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention. Giordenello v. United States, 357 U. S. 480, 486; 79 C. J. S. 872 (collecting cases). In Giordenello, the Government pointed out that the officer who obtained the warrant “had kept petitioner under surveillance for about one month prior to the arrest.” The Court of course ignored this evidence, since it had not been brought to the magistrate’s attention. The fact that the police may have kept petitioner’s house under surveillance is thus completely irrelevant in this ease, for, in applying for the warrant, the police did not mention any surveillance. Moreover, there is no evidence in the record that a surveillance was actually set up on petitioner’s house. Officer Strickland merely testified that “we wanted to set up surveillance on the house.” If the fact and results of such a surveillance had been appropriately presented to the magistrate, this would, of course, present an entirely different case.

       Petitioner was also indicted on charges of conspiring to violate the federal narcotics laws, Act of February 9, 1909, c. 100, 35 Stat. 614, § 2, as amended, 21 U. S. C. § 174; Internal Revenue Code of 1954, §7237 (b), as amended, 26 U. S. C. §7237 (b). He was found not guilty by the jury. His codefendants were found guilty and their convictions affirmed on appeal. Garcia v. United States, 315 F. 2d 679.

       In Giordenello, although this Court construed the requirement of “probable cause” contained in Rule 4 of the Federal Rules of Criminal Procedure, it did so “in light of the constitutional” requirement of probable cause which that Rule implements. Id., at 485. The case also involved an arrest warrant rather than a search warrant, but the Court said: “The language of the Fourth Amendment, that ‘. . . no Warrants shall issue, but upon probable cause . . .’ of course applies to arrest as well as search warrants.” Id., at 485-486. See Ex parte Burford, 3 Cranch 448; McGrain v. Daugherty, 273 U. S. 135, 154-157. The principles announced in Giordenello derived, therefore, from the Fourth Amendment, and not from our supervisory power. Compare Jencks v. United States, 353 U. S. 657. Accordingly, under Ker v. California, 374 U. S. 23, they may properly guide our determination of “probable cause” under the Fourteenth Amendment.

       To approve this affidavit would open the door to easy circumvention of the rule announced in Nathanson and Giordenello. A police officer who arrived at the “suspicion,” “belief” or “mere conclusion” that narcotics were in someone’s possession could not obtain a warrant. But he could convey this conclusion to another police officer, who could then secure the warrant by swearing that he had “received reliable information from a credible person” that the narcotics were in someone’s possession.

       Such an affidavit was sustained by this Court in Jones v. United, States, 362 U. S. 257. The affidavit in that case reads as follows:
      “Affidavit in Support of a U. S. Commissioners Search Warrant for Premises 1436 Meridian Place, N. W., Washington, D. C., apartment 36, including window spaces of said apartment. Occupied by Cecil Jones and Earline Richardson.
      “In the late afternoon of Tuesday, August 20, 1957, I, Detective Thomas Didone, Jr. received information that Cecil Jones and Earline Richardson were involved in the illicit narcotic traffic and that they kept a ready supply of heroin on hand in the above mentioned apartment. The source of information also relates that the two aforementioned persons kept these same narcotics either on their person, under a pillow, on a dresser or on a window ledge in said apartment. The source of information goes on to relate that on many occasions the source of information has gone to said apartment and purchased narcotic drugs from the above mentioned persons and that the nar-eotics were secreated [sic] in the above mentioned places. The last time being August 20, 1957.
      “Both the aforementioned persons are familiar to the undersigned and other members of the Narcotic Squad. Both have admitted to the use of narcotic drugs and display needle marks as evidence of same.
      “This same information, regarding the illicit narcotic traffic, conducted by Cecil Jones and Earline Richardson, has been given to the undersigned and to other officers of the narcotic squad by other sources of information.
      “Because the source of information mentioned in the opening paragraph has given information to the undersigned on previous occasion and which was correct, and because this same information is given by other sources does believe that there is now illicit narcotic drugs being secreated [sic] in the above apartment by Cecil Jones and Earline Richardson.
      “Det. Thomas Didone, Jr., Narcotic Squad, MPDC.
      “Subscribed and sworn to before me this 21 day of August, 1957.
      “James F. Splain, U. S. Commissioner, D. C.” Id., at 267-268, n. 2.
      Compare, e. g., Hernandez v. People,-Colo.-, 385 P. 2d 996, where the Supreme Court of Colorado, accepting a confession of error by the State Attorney General, held that a search warrant similar to the one here in issue violated the Fourth Amendment. The court said:
      “Before the issuing magistrate can properly perform his official function he must be apprised of the underlying facts and circumstances which show that there is probable cause . . ...” Id., at -, 385 P. 2d, at 999.

       Mr. Justice Black, who joined the Court’s opinion in Gior-denello, joins this dissent on the basis of his belief that Giordenello was based on Rule 4 and not on the less exacting requirements of the Fourth Amendment.

       The affidavit in Jones was more detailed, including a statement of where the heroin might be found, viz., “on their person, under a pillow, on a dresser or on a window ledge in said apartment.” But this detail adds nothing to the reliability of the information furnished. Likewise, the allegation in Jones that the informer had “on previous occasion” given information “which was correct” was contained in substance in the Aguilar affidavit.


author: Per Curiam.

text:
    VIKING THEATRE CORP. v. PARAMOUNT FILM DISTRIBUTING CORP. et al.
    No. 481.
    Argued April 27, 1964.
    Decided June 15, 1964.
    Judgment affirmed by an equally divided Court.

      Edward Bennett Williams argued the cause for petitioner. With him on the briefs were Harold Ungar and Henry W. Sawyer III.

      Louis Nizer and Morris Wolf argued the cause for respondents. With Mr. Nizer on the brief for respondent Paramount Film Distributing Corp. et al. were W. Bradley Ward and Louis J. Goff man. With Mr. Wolf on the brief for respondent Stanley Company of America et al. was Franklin Poul. Ralph Earle II, Arthur Littleton, Frederick W. R. Pride and Charles F. Young filed a brief for Twentieth Century-Fox Film Corp., et al., and Edwin P. Rome and Morris L. Weisberg filed a brief for William Goldman Theatres, Inc., respondents.

      Herman M. Levy filed a brief for the Theatre Owners of America, Inc., et al., as amici curiae, urging affirmance.
   Per Curiam.

The judgment is affirmed by an equally divided Court.

Mr. Justice Douglas took no part in the decision of this case.


text:
    DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL FOR CALIFORNIA et al. v. AMMEX WAREHOUSE CO. OF SAN YSIDRO, INC., et al.
    No. 919.
    Decided June 15, 1964.

      Stanley Mosk, Attorney General of California, E. G. Funke, Assistant Attorney General, and Felice-R. Cutter and Warren H. Deering, Deputy Attorneys General, for appellants.

      George D. Byfield for appellees.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed. Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324.

Mr. Justice Black and Mr. Justice Goldberg dissent for the reasons stated in the dissenting opinion in Hostetter v. Idlewild Bon Voyage Liquor Corp., supra.


text:
    MITCHELL BROS. TRUCK LINES v. UNITED STATES et al.
    No. 993.
    Decided June 15, 1964.

      William, F. White for appellant.

      Solicitor General Cox, Assistant Attorney General Orrick, Robert B. Hummel, Robert W. Ginnane, Francis A. Silver and Betty Jo Christian for the United States et al.
   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    DUNNE LEASES CARS & TRUCKS, INC., v. LUSSIER, REGISTRAR OF MOTOR VEHICLES FOR RHODE ISLAND.
    No. 1029.
    Decided June 15, 1964.
    Reported below: See-R. I.-, 196 A. 2d 728.

      Abraham Belilove and Samuel J. Kolodney for appellant.
   Per Curiam.

The appeal is dismissed for want of a substantial federal question.


text:
    BENKO v. HARTFORD ACCIDENT & INDEMNITY CO. et al.
    No. 1345, Misc.
    Decided June 15, 1964.
    Appellant pro se.

      Cornelius H. Doherty for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    ELFBRANDT v. RUSSELL et al.
    No. 553, Misc.
    Decided June 15, 1964.

      W. Edward Morgan for petitioner.

      Robert W. Pickrell, Attorney General of Arizona, Philip M. Haggerty, Assistant Attorney General, and Norman E. Green for respondents.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Arizona for further consideration in light of Baggett v. Bullitt, 377 U. S. 360.


text:
    CURTIS, INC., et al. v. UNITED STATES et al.
    No. 1033.
    Decided June 15, 1964.

      Duane W. Acklie, Donald E. Leonard and Anthony F. Zarlengo for appellants.

      Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, Robert W. Ginnane and Arthur J. Cerra for the United States and the Interstate Commerce Commission.

      Thomas F. Kilroy for Denver-Albuquerque Motor Transport, Inc., et al., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    ZOUMAH v. UNITED STATES.
    No. 1130, Misc.
    Decided June 15, 1964.
    Petitioner pro se.

      Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky for the United States.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Court of Appeals in light of the recommendation of the Solicitor General and upon examination of all the papers filed in the case.


author: Mr. Chief Justice Warren Mr. Justice Clark, Mr. Justice Harlan,

text:
    GRIFFIN et al. v. MARYLAND.
    No. 6.
    Argued November 5, 7, 1962.
    Restored to the calendar for reargument May 20, 1963.
    Reargued October 14-15, 1963.
    Decided June 22, 1964.

      Joseph L. Ranh, Jr. and Jack Greenberg argued the cause for petitioners on the reargument. With them on the brief were John Silard, Daniel H. Pollitt, Joseph H. Sharlitt and James M. Nabrit III. Mr. Rauh argued the cause for petitioners on the original argument. With him on the brief were Messrs. Silard, Sharlitt, Greenberg and Nabrit.

      Robert C. Murphy, Deputy Attorney General of Maryland, and Russell R. Reno, Jr., Assistant Attorney General, argued the cause for respondent on the reargument. With Mr. Murphy on the brief were Thomas B. Finan,
      Attorney General of Maryland, and Loring E. Hawes, Assistant Attorney General. Mr. Murphy, then Assistant Attorney General of Maryland, and Joseph S. Kaufman, then Deputy Attorney General, argued the cause for respondent on the original argument. With them on the brief was Mr. Finan.

      Ralph S. Spritzer, by special leave of Court, argued the cause for the United States on the reargument, as amicus curiae, urging reversal. With him on the briefs were Solicitor General Cox, Assistant Attorney General Marshall, Louis F. Claiborne, Harold H. Greene, Howard A. Glick-stein and David Rubin. Mr. Cox, by special leave of Court, argued the cause for the United States on the original argument, as amicus curiae, urging reversal. With him on the brief were Messrs. Marshall, Claiborne and Greene.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

Petitioners were convicted of criminal trespass for refusing to leave a privately owned and operated amusement park in the State of Maryland at the command of an employee of the amusement park acting under color of his authority as a deputy sheriff. For the reasons set forth hereinafter we hold that these convictions are violative of the Fourteenth Amendment and must be set aside.

The Glen Echo Amusement Park is located in Montgomery County, Maryland, near Washington, D. C. Though the park through its advertisements sought the patronage of the general public, it was (until recently) the park’s policy to exclude Negroes who wished to patronize its facilities. No signs at the park apprised persons of this policy or otherwise indicated that all comers were not welcome. No tickets of admission were required. In protest against the park’s policy of segregation a number of whites and Negroes picketed the park on June 30, 1960. The petitioners, five young Negroes, were participating in the protest. Hopeful that the management might change its policy, they entered the park, and encountering no resistance from the park employees, boarded the carousel. They possessed transfer-rable tickets, previously purchased by others, entitling the holder to ride on the carousel.

At that time the park employed one Collins as a special policeman by arrangement with the National Detective Agency. Although Collins was formally retained and paid by the agency and wore its uniform, he was subject to the control and direction of the park management. Apparently at the request of the park, Collins had been deputized as a sheriff of Montgomery County. He wore, on the outside of his uniform, a deputy sheriff’s badge.

When Collins saw the petitioners sitting on the carousel waiting for the ride to begin, he reported their presence to the park manager. The manager told Collins that petitioners were to be arrested for trespassing if they would not leave the park. Collins then went up to the petitioners and told them that it was the park’s policy “not to have colored people on the rides, or in the park.” He ordered petitioners to leave within five minutes. They declined to do so, pointing out that they had tickets for the carousel. There was no evidence that any of the petitioners were disorderly. At the end of the five-minute period Collins, as he testified, “went to each defendant and told them that the time was up and that they were under arrest for trespassing.” Collins transported the petitioners to the Montgomery County police station. There he filled out a form titled “Application for Warrant by Police Officer.” The application stated:

“Francis J. Collins, being first duly sworn, on oath doth depose and say: That he is a member of the Montgomery deputy sheriff Department and as such, on the 30th day of June, 1960, at about the hour of 8:45 P. M. he did observe the defendant William L. Griffin in Glen Echo Park which is private property[.] [0]n order of Kebar Inc. owners of Glen Echo Park the defendant] was asked to leave the park and after giving him reasonable time to comply the def [endant] refused to leave [and] he was placed under arrest for trespassing ....
“Whereas, Francis J. Collins doth further depose and say that he, as a member of the Montgomery County Police Department believes that--is violating Sec. 577 Article 27 of the Annotated Code of Maryland.
“Francis J. Collins.”

Md. Ann. Code, 1957 (Cum. Supp. 1961), Art. 27, § 577, is a criminal trespass statute. On the same day a Maryland Justice of the Peace issued a warrant which charged that petitioner Griffin “[d]id enter upon and pass over the land and premises of Glen Echo Park . . . after having been told by the Deputy Sheriff for Glen Echo Park, to leave the Property, and after giving him a reasonable time to comply, he did not leave . . . contrary to the . . . [Maryland criminal trespass statute] and against the peace, government and dignity of the State.” The warrant recited that the complaint had been made by “Collins Deputy Sheriff.” An amended warrant was later filed. It stated that the complaint had been made by “Collins, Deputy Sheriff” but charged Griffin with unlawfully entering the park after having been told not to do so by “an Agent” of the corporation which operated the park. Presumably identical documents were filed with respect to the other petitioners.

Petitioners were tried and convicted of criminal trespass in the Circuit Court of Montgomery County. Each was sentenced to pay a fine of $100. The Maryland Court of Appeals affirmed the convictions. 225 Md. 422, 171 A. 2d 717. That court, rejecting the petitioners’ constitutional claims, reasoned as follows:

“[T]he appellants in this case . . . were arrested for criminal trespass committed in the presence of a special deputy sheriff of Montgomery County (who was also the agent of the park operator) after they had been duly notified to leave but refused to do so. It follows — since the offense for which these appellants were arrested was a misdemeanor committed in the presence of the park officer who had a right to arrest them, either in his private capacity as an agent or employee of the operator of- the park or in his limited capacity as a special deputy sheriff in the amusement park . . . — the arrest of these appellants for a criminal trespass in this manner was no more than if a regular police officer had been called upon to make the arrest for a crime committed in his presence .... [T]he arrest and conviction of these appellants for a criminal trespass as a result of the enforcement by the operator of the park of its lawful policy of segregation, did not constitute such action as may fairly be said to be that of the State.” 225 Md., at 431, 171 A. 2d, at 721.

We granted certiorari, 370 U. S. 935, and set the case for reargument. 373 U. S. 920.

Collins — in ordering the petitioners to leave the park and in arresting and instituting prosecutions against them — purported to exercise the authority of a deputy sheriff. He wore a sheriff’s badge and consistently identified himself as a deputy sheriff rather than as an employee of the park. Though an amended warrant was filed stating that petitioners had committéd an offense because they entered the park after an “agent” of the park told them not to do so, this change has little, if any, bearing on the character of the authority which Collins initially purported to exercise. If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity or that the particular action which he took was not authorized by state law. See, e. g., Screws v. United States, 325 U. S. 91. Thus, it is clear that Collins’ action was state action. See Williams v. United States, 341 U. S. 97; see also Labor Board v. Jones & Laughlin Steel Corp., 331 U. S. 416, 429. The only question remaining in this case is whether Collins’ action denied petitioners the equal protection of the laws secured to them by the Fourteenth Amendment. If it did, these convictions are invalid.

It cannot be disputed that if the State of Maryland had operated the amusement park on behalf of the owner thereof, and had enforced the owner’s policy of racial segregation against petitioners, petitioners would have been deprived of the equal protection of the laws. Pennsylvania v. Board of Trusts, 353 U. S. 230; cf. Burton v. Wilmington Parking Authority, 365 U. S. 715. In the Board of Trusts case we were confronted with the following situation. Stephen Girard by will had left a fund in trust to establish a college. He had provided in his will, in effect, that only “poor white male orphans” were to be admitted. The fund was administered by the Board of Directors of City Trusts of the City of Philadelphia as trustee. In accord with the provisions of the will it denied admission to two Negro applicants who were otherwise qualified. We held:

“The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, 347 U. S. 483.” 353 U. S., at 231.

The Board of Trusts case must be taken to establish that to the extent that the State undertakes an obligation to enforce a private policy of racial segregation, the State is charged with racial discrimination and violates the Fourteenth Amendment.

It is argued that the State may nevertheless constitutionally enforce an owner’s desire to exclude particular persons from his premises even if the owner’s desire is in turn motivated by a discriminatory purpose. The State, it is said, is not really enforcing a policy of segregation since the owner’s ultimate purpose is immaterial to the State. In this case it cannot be said that Collins was simply enforcing the park management’s desire to exclude designated individuals from the premises. The president of the corporation which owned and managed the park testified that he had instructed Collins to enforce the park’s policy of racial segregation. Collins was told to exclude Negroes from the park and escort them from the park if they entered. He was instructed to arrest Negroes for trespassing if they did not leave the park when he ordered them to do so. In short, Collins, as stated by the Maryland Court of Appeals, was “then under contract to protect and enforce . . . [the] racial segregation policy of the operator of the amusement park . . . .” 225 Md., at 430, 171 A. 2d, at 720. Pursuant to this obligation Collins ordered petitioners to leave and arrested them, as he testified, because they were Negroes. This was state action forbidden by the Fourteenth Amendment.

Reversed.

Mr. Justice Douglas would reverse for the reasons stated in his opinion in Bell v. Maryland, post, p. 242.

Mr. Justice Clark,

concurring.

I join the Court’s opinion with the understanding that it merely holds, under the peculiar facts here, that the State “must be recognized as a joint participant in the challenged activity.” See Burton v. Wilmington Parking Authority, 365 U. S. 715, 725 (1961). Deputy Sheriff Collins, an agent of the State, was regularly employed by Glen Echo in the enforcement of its segregation policy. I cannot, therefore, say, as does my Brother Harlan, that the situation “is no different from what it would have been had the arrests been made by a regular policeman dispatched from police headquarters.” Here Collins, the deputy sheriff, ordered petitioners to leave the park before any charges were filed. Upon refusal, Collins, the deputy sheriff, made the arrest and then took petitioners to the police station where he filed the charges and secured the warrant. If Collins had not been a police officer, if he had ordered the petitioners off the premises and filed the charges of criminal trespass, and if then, for the first time, the police had come on the scene to serve a warrant issued in due course by a magistrate, based on the charges filed, that might be a different case. That case we do not pass upon.

Mr. Justice Harlan,

whom Mr. Justice Black and Mr. Justice White join,

dissenting.

The pivotal issue in this case is whether petitioners’ exclusion from Glen Echo, a private amusement park, was the product of state action. I accept the premise that in arresting these petitioners Collins was exercising his authority as deputy sheriff rather than his right as an individual under Maryland law, see 225 Md., at 431, 171 A. 2d, at 721, to arrest them for a misdemeanor being committed in his presence. It seems clear to me, however, that the involvement of the State is no different from what it would have been had the arrests been made by a regular policeman dispatched from police headquarters.

I believe, therefore, that this case is controlled by the principles discussed in Mr. Justice Black’s opinion in Bell v. Maryland, post, p. 318, decided today, and accordingly would affirm the judgment below.

       The Maryland Court of Appeals opinion below stated that Collins was deputized at the request of the park management pursuant to § 2-91 of the Montgomery County Code of 1955 which provides that the sheriff “on application of any corporation or individual, may appoint special deputy sheriffs for duty in connection with the property of . . . such corporation or individual; such special deputy sheriffs to be paid wholly by the corporation or person on whose account their appointments are made. Such special deputy sheriffs .. . shall have the same power and authority as deputy sheriffs possess within the area to which they are appointed and in no other area.” 225 Md. 422, 430, 171 A. 2d 717, 721.

       That section provides:
      “Any person . . . who shall enter upon or cross over the land, premises or private property of any person . . . after having been duly notified by the owner or his agent not to do so shall be deemed guilty of a misdemeanor . . . provided . . . [however] that nothing in this section shall be construed to include within its provisions the entry upon or crossing over any land when such entry or crossing is done under a bona fide claim of right or ownership of said land, it being the intention of this section only to prohibit any wanton trespass upon the private land of others.”


author: Mr. Chief Justice Warren Mr. Justice Stewart,

text:
    FALLEN v. UNITED STATES.
    No. 210.
    Argued April 30, 1964.
    Decided June 22, 1964.

      Isaac N. Groner, by appointment of the Court, 376 U. S. 940, argued the cause and filed a brief for petitioner.

      Philip B. Heymann argued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

At issue in this case is whether petitioner’s notice of appeal was filed within the time specified by Rule 37 (a) (2) of the Federal Rules of Criminal Procedure.

Petitioner was convicted on January 11, 1962, of violations of the postal laws. Four days later — on January 15 — he appeared for sentencing with the attorney who had been appointed to represent him at trial. Consecutive sentences aggregating 20 years were imposed, after which the defendant asked if he could appeal the case “as an insolvent.” The sentencing judge replied:

“Oh, yes, you always have a right to appeal; the Government provides for that.
“So that will be all. We are through with this case.
“Mr. Marshal, you may take charge of the defendant.”

Before he was taken out of the building, petitioner was given an opportunity to consult with his court-appointed attorney. According to the attorney’s later recollection, petitioner asked him at that time if he would be interested in representing him on an appeal. The attorney responded that his firm did not want him to undertake any further criminal matters, and that it would thus be best for petitioner to secure another attorney promptly so as not to forfeit his right to appeal. The attorney recalled that this conference lasted for about an hour and a half- — petitioner, that it lasted for only a few minutes. In any event, petitioner was then taken back to the medical center at which he had been quartered during the trial. Early the next morning, he was transferred to hospital facilities at Atlanta to commence his sentence. At neither place was he permitted to have visitors.

On January 29, 14 days after sentencing, the clerk of the court in which petitioner had been convicted received letters from petitioner asking for a new trial and for an appeal. The letters were dated January 23 by petitioner, and were mailed in a single envelope which bore a government frank but no postmark. No communications had been received in the interim from either petitioner or his court-appointed counsel.

The chief judge of the district then reappointed the same attorney for the purpose of presenting the motion for a new trial to the trial judge at a hearing which was set for that purpose. In due course the motion was denied on the merits, the time question having been argued but not decided. On the same day, petitioner’s reappointed attorney filed a notice of appeal and petitioner was granted leave to appeal in forma pauperis. Thereafter a new attorney was appointed to represent petitioner before the Court of Appeals and the case was set for hearing on the Government’s motion to dismiss the appeal because the notice was not timely filed.

A divided Court of Appeals held, first, that petitioner’s motion for a new trial was not timely filed, and that the consideration of the motion on the merits by the trial judge was in error and thus could not serve to extend the time for filing a notice of appeal. It then held that the time for filing the notice began on January 15 when petitioner was sentenced, and expired when on January 25 the clerk had not received the notice. 306 F. 2d 697. We granted certiorari, 374 U. S. 826, to consider whether the restrictive reading of the Rules by the court below was justified under the circumstances of this case. We have concluded that it was not, and accordingly remand the case for a disposition of petitioner’s appeal on the merits.

Rule 37 (a) provides that “[a]n appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from . . .” and that an appeal is taken “by filing with the clerk of the district court a notice of appeal . . . .” The Court of Appeals has read this to mean that, irrespective of the reason for the delay, the notice of appeal must actually be in the hands of the clerk on or before the 10th day. Since the timely filing of a notice of appeal is a jurisdictional prerequisite to the hearing of the appeal, the court thus felt powerless to do anything but to dismiss.

Overlooked, in our view, was the fact that the Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances. Rule 2 begins with the admonition that “[tjhese rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” That the Rules were not approached with sympathy for their purpose is apparent when the circumstances of this case are examined.

In the first place, in spite of the promise of the Rule, petitioner was forced to take his appeal without the assistance of counsel. He was whisked away from the place of trial (Jacksonville, Florida) on the day after he was sentenced, and, as he tells it without contradiction in the record, not permitted to have visitors, nor afforded the opportunity to secure another attorney. In addition to his normal physical problems, he was ill, and was thus confined in a hospital both in Jacksonville and in Atlanta.

It was not until January 23, as he tells it, again without contradiction in the record, that he felt well enough to write. Acting without advice as to the requirements of time, except that which he could acquire from other inmates, he then wrote two letters asking for a new trial and for the appeal which the trial judge promised that “the Government provides.” These letters were promptly mailed on January 23, for all the record shows, and by coincidence, no doubt, would thus in the normal course of events have been received by the clerk within the 10 days.

That they were not received within 10 days, however, is perhaps explained by the Government’s disclosure at oral argument that mail pickups at Atlanta at that time occurred only twice a week, on Tuesdays and Fridays. Thus, if petitioner deposited the letters with prison authorities after the hour of pickup on January 23, a Tuesday — and there is nothing in the record to show that anyone took the trouble to tell him about such mailing delays — his letters would not have been placed in the mail by prison authorities until Friday. They thus probably would not have been received by the clerk’s office until Monday the 29th, the day on which they were actually marked received by the clerk.

But whether or not this in fact occurred, there is no reason on the basis of what this record discloses to doubt that petitioner’s date at the top of the letter was an accurate one and that subsequent delays were not chargeable to him. Cf. Rosenbloom v. United States, 355 U. S. 80. There is no postmark on the envelope, nor any indication of the time at which the envelope came into the hands of prison officials. Other letters also mailed by petitioner from the prison took an equally long time to get to their destination. And although the Government had the opportunity, it introduced no evidence — and admitted on oral argument that it had none — to dispute the record facts that petitioner had done all that could reasonably be expected to get the letter to its destination within the required 10 days. Since petitioner did all he could under the circumstances, we decline to read the Rules so rigidly as to bar a determination of his appeal on the merits.

The judgment of the Court of Appeals is reversed, and the case remanded for a prompt disposition of the appeal on the merits.

It is so ordered.

Mr. Justice Stewart,

whom Mr. Justice Clark, Mr. Justice Harlan and Mr. Justice Brennan join,

concurring.

I think that for purposes of Rule 37 (a) (2), a defendant incarcerated in a federal prison and acting without the aid of counsel files his notice of appeal in time, if, within the 10-day period provided by the Rule, he delivers such notice to the prison authorities for forwarding to the clerk of the District Court. In other words, in such a case the jailer is in effect the clerk of the District Court within the meaning of Rule 37. If all we had to go on in this case was the date the petitioner wrote at the top of his letter, I think we should remand the case for resolution of the factual question as to when the letter was actually delivered to the prison authorities for mailing. But government counsel expressly conceded during oral argument that the petitioner in fact entrusted his notice of appeal to the prison authorities within the 10-day period. Moreover, we were advised by counsel that procedures have now been inaugurated at the federal prisons to make certain that the exact time of receipt will be marked on all papers that are filed with the authorities for mailing. For these reasons I concur in the judgment of the Court, remanding the case for a prompt disposition of the appeal on the merits.

       Specifically, 18 U. S. C. §§ 371, 641, 2115.

       As the result of an automobile accident in 1951, petitioner is a paraplegic confined to a wheelchair. In addition to complications which have resulted from his affliction, petitioner was at the time of sentencing suffering from the flu. He was kept in medical facilities, it appears, more because of his flu than his more permanent condition.

       Rule 37 (a) (2) provides that if a motion for new trial is made within the 10 days during which an appeal must be taken, the appeal from the judgment of conviction may be taken within 10 days from the denial of the motion.

       Rule 37 (a)(2) provides that “[w]hen a court after trial imposes sentence upon a defendant not represented, by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant.” (Emphasis added.) Although counsel was physically present at sentencing, it is an open question whether petitioner was “represented” by counsel within the meaning and purpose of the Rule.

       See note 2, supra.

       January 23 was the eighth day after sentencing, and the parties are agreed that a letter mailed on the 23d in Atlanta would normally be received in Jacksonville by the 25th.


author: Mr. Justice Black

text:
    BARR et al. v. CITY OF COLUMBIA.
    No. 9.
    Argued October 14-15, 1963.
    Decided June 22, 1964.

      Matthew J. Perry, Constance Baker Motley and Jack Greenberg argued the cause for petitioners. With them on the brief were James M. Nabrit III, Charles L. Black, Jr., Juanita Jackson Mitchell, Tucker R. Dearing, Lincoln C. Jenkins, Derrick A. Bell, Jr., William T. Coleman, Jr., Louis H. Poliak, Richard R. Powell, Joseph L. Rauh, Jr. and John Silard.

      David W. Robinson II and John W. Sholenberger argued the cause for respondent. With them on the briefs was David W. Robinson. Daniel R. McLeod, Attorney General of South Carolina, entered his appearance for respondent.

      Ralph S. Spritzer, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the briefs were Solicitor General Cox, Assistant Attorney General Marshall, Louis F. Claiborne, Harold H. Greene, Howard A. Glickstein and David Rubin.

   Mr. Justice Black

delivered the opinion of the Court.

Like Bouie v. City of Columbia, post, p. 347, this case involves a “sit-in” demonstration in Columbia, South Carolina, this one at the Taylor Street Pharmacy. Negroes and whites alike are invited to come and buy goods in all the store’s departments, but the lunch counter, while it sells food to Negroes to take out, has a policy of refusing to let them sit there and eat. Petitioners, five Negro college students, entered the store and after some of them had made purchases in the front part proceeded to the lunch counter at the rear, where they sat down and waited for service. The store manager had arranged the day before for the police to come and arrest any “sit-in” demonstrators who might refuse to leave after being requested to do so. As a result, three officers were waiting at the store when petitioners arrived. The manager announced to petitioners that he would not serve them and that they would have to leave; then, at the request of one of the officers, he went with the officer to each petitioner and asked each petitioner individually to leave. When petitioners remained seated at the counter, they were arrested and charged with criminal trespass and breach of the peace. The Recorder’s Court convicted them on both charges, the County Court affirmed in an unreported opinion, and the Supreme Court of South Carolina also affirmed. 239 S. C. 395, 123 S. E. 2d 521. Like the petitioners in Borne, post, these petitioners claim that their convictions violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and as in Bouie we granted certiorari. 374 U. S. 804.

We consider first the question whether petitioners’ convictions for breach of the peace are constitutionally valid. Apart from the fact that petitioners remained in the store after having been asked to leave, there is a complete and utter lack of any evidence, and no suggestion in the opinions of any of the courts below, that any of the petitioners did anything disorderly or did anything other than politely ask for service. Petitioners argue that either the breach-of-peace statute as applied to their conduct was unconstitutionally vague for failure to give fair warning, cf. Lametta v. New Jersey, 306 U. S. 451, or there was no evidence to support convictions for violation of that statute, cf. Thompson v. City of Louisville, 362 U. S. 199. The city replies that, because the Supreme Court of South Carolina refused to pass on objections to the breach-of-peace conviction on the ground that the exceptions taken below were “too general to be considered,” we are precluded from considering petitioners’ constitutional objections. The exceptions on this point read:

“1. The Court erred in refusing to hold that the City failed to prove a prima facie case.
“2. The Court erred in refusing to hold that the City failed to establish the corpus delicti.”

We cannot accept the city’s argument, since in City of Columbia v. Bouie, 239 S. C. 570, 124 S. E. 2d 332, rev’d on another point, post, p. 347, decided only a few weeks after the present case, the State Supreme Court had before it the identical two exceptions, and relying on them reversed for- insufficiency of evidence the conviction of a peaceful and quiet sit-in demonstrator who had been convicted on a charge of resisting arrest. In three other cases decided in the two-month period preceding the present decision it likewise considered these same exceptions enough to raise the question of sufficiency of evidence, and in one of those three cases, decided the day before the present one, it reversed on that ground a conviction for interfering with an officer. We have often pointed out that state procedural requirements which are not strictly or regularly followed cannot deprive us of the right to review. See, e. g., NAACP v. Alabama ex rel. Flowers, 377 U. S. 288; Shuttlesworth v. City of Birmingham, 376 U. S. 339; Wright v. Georgia, 373 U. S. 284; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449. We conclude that there is no adequate state ground barring our review of the breach-of-peace convictions.

Turning to the merits, the only evidence to which the city refers to justify the breach-of-peace convictions here, and the only possibly relevant evidence which we have been able to find in the record, is a suggestion that petitioners’ mere presence seated at the counter might possibly have tended to move onlookers to commit acts of violence. As we pointed out above, it is undisputed ini the record that petitioners were polite, quiet, and peaceful from the time they entered the store to the time they left. And as the city concedes, “it cannot be said that the South Carolina Supreme Court has, upon proper presentation and proper briefing, held that the acts of the Petitioners are clearly within the prohibitions of the statutes involved.” Accordingly, we are unwilling to assume and find it hard to believe that the State Supreme Court if it had passed on the point would have held that petitioners could be punished for trespass and for breach of the peace as well, based on the single fact that they had remained after they had been ordered to leave. And further, because of the frequent occasions on which we have reversed under the Fourteenth Amendment convictions of peaceful individuals who were convicted of breach of the peace because of the acts of hostile onlookers, we are reluctant to assume that the breach-of-peace statute covers petitioners’ conduct here. Cf., e. g., Henry v. City of Rock Hill, 376 U. S. 776; Wright v. Georgia, supra; Edwards v. South Carolina, 372 U. S. 229; Taylor v. Louisiana, 370 U. S. 154; Garner v. Louisiana, 368 U. S. 157; Terminiello v. Chicago, 337 U. S. 1. Since there was no evidence to support the breach-of-peace convictions, they should not stand. Thompson v. City of Louisville, 362 U. S. 199.

The judgments of conviction for breach of the peace are reversed and the case is remanded for proceedings not inconsistent with this opinion.

It is so ordered.

Per Curiam.

With respect to the criminal trespass convictions, those judgments are also reversed and the case remanded for the reasons stated in Bouie v. City of Columbia, post, p. 347.

Mr. Justice Douglas would reverse for the reasons stated in his opinion in Bell v. Maryland, post, p. 242.

Mr. Justice Goldberg, with whom The Chief Justice joins, would, while joining in the opinion and judgments of the Court, also reverse for the reasons stated in the concurring opinion of Mr. Justice Goldberg in Bell v. Maryland, post, p. 286.

Mr. Justice Black, with whom Mr. Justice Harlan and Mr. Justice White join, dissenting from the reversal of the trespass convictions.

We have stated in our opinions in Bouie v. City of Columbia, post, p. 363, and Bell v. Maryland, post, p. 318, our belief that the mere fact that policé responded to the call of a storekeeper and arrested people who were remaining in the store over his protest was not enough to constitute “state action” within the meaning of the Fourteenth Amendment. A review of the evidence in the case before us convinces us that the officers here did nothing which would justify a holding that they were acting for the State in any capacity except to arrest people who violated the trespass statute by remaining on the property of another after having been asked to leave. Petitioners’ other objections relating to vagueness of the trespass statute and alleged absence of evidence to support the trespass convictions are identical to those which we considered and rejected in our opinion in Bouie. We believe therefore that the trespass convictions should stand.

       Section 16-386, Code of Laws of South Carolina, 1952 (1960 Supp.).

       Section 15-909, Code of Laws of Sbuth Carolina, 1952, provides:

        “Disorderly conduct, etc. — The mayor or intendant and any aider-man, councilman or warden of any city or town in this State may in person arrest or may authorize and require any marshal or constable especially appointed for that purpose to arrest any person who, within the corporate limits of such city or town, may be engaged in a breach of the peace, any riotous or disorderly conduct, open obscenity, public drunkenness or any other conduct grossly indecent or dangerous to the citizens of such city or town or any of them. Upon conviction before the mayor or intendant or city or town council such person may be committed to the guardhouse which the mayor or intendant or city or town council is authorized to establish or to the county jail or to the county chaingang for a term not exceeding thirty days and if such conviction be for disorderly conduct such person may also be fined not exceeding one hundred dollars; -provided, that this section shall not be construed to prevent trial by jury.”

       239 S. C., at 399, 123 S. E. 2d, at 523.

        City of Charleston v. Mitchell, 239 S. C. 376, 123 S. E. 2d 512, rev’d on another point, post, p. 551. See also State v. Edwards, 239 S. C. 339, 123 S. E.. 2d 247, rev’d on another point sub nom. Edwards v. South Carolina, 372 U. S. 229; City of Greenville v. Peterson, 239 S. C. 298, 122 S. E. 2d 826, rev’d on another point, 373 U. S. 244 (allegation of failure to establish corpus delicti only).

       The city cites no decision of the Supreme Court of South Carolina which supports its position on this issue. State v. Edwards, 239 S. C. 339, 123 S. E. 2d 247, rev’d sub nom. Edwards v. South Carolina, 372 U. S. 229, from which the city quotes, did not involve this statute and is not otherwise persuasive.

       We do not reach petitioners’ contention that their breach-of-peace convictions were void for vagueness under the doctrine of Lanzetta v. New Jersey, 306 U. S. 451.


text:
    ROBINSON et al. v. FLORIDA.
    No. 60.
    Argued October 15, 1963.
    Decided June 22, 1964.

      Alfred I. Hopkins and Jack Greenberg argued the cause for appellants. With Mr. Hopkins on the briefs were Tobias Simon and Howard W. Dixon.

      George B. Georgieff, Assistant Attorney General of Florida, argued the cause for appellee. With him on the briefs were Richard W. Ervin, former Attorney General of Florida, and James W. Kynes, Attorney General of Florida.

      Ralph S. Spritzer, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the briefs were Solicitor General Cox, Assistant Attorney General Marshall, Louis F. Claiborne, Harold H. Greene, Howard A. Glickstein and David Rubin.

   Mr. Justice Black

delivered the opinion of the Court.

A criminal information filed in a Florida state court charged that these eighteen appellants had violated § 509.141 of the Florida Statutes by remaining in a restaurant after the manager had requested them to leave. The material facts are not in dispute and show: Shell’s City Restaurant', which is one of nineteen departments in Shell’s Department Store in Miami, had, at the time of appellants’ arrest, a policy of refusing to serve Negroes. Appellants, Negroes and whites, went as a group into the restaurant and seated themselves at tables. In accordance with the restaurant’s policy, the manager told appellants they would not be served. The manager called the police and, accompanied by one policeman, went to each table, again told appellants they would not be served, and requested them to leave. They refused. The police officers then advised them to leave, and when appellants persisted in their refusal the police placed them all under arrest.

At the trial, the Shell’s City management explained that, while Negroes were welcomed as customers in the store’s other departments, serving Negroes in the restaurant would be “very detrimental to our business” because of the objections of white customers. After these facts had been brought out during the examination of the State’s witnesses, appellants moved for a directed verdict on the ground that their arrest, prosecution, and conviction by the State on this evidence would amount to state discrimination against them on account of color, thereby violating the Fourteenth Amendment’s guarantee of equal protection of the laws. This motion was denied. The appellants calling no witnesses, the trial court stayed the adjudication of guilt and the imposition of sentence and placed appellants on probation, as authorized by § 948.01 (3) of the Florida Statutes. On appeal, after various jurisdictional rulings in the Florida appellate courts, the Supreme Court of Florida affirmed, holding the statute under which appellants were convicted to be nondiscriminatory. 144 So. 2d 811. The case is properly here on appeal under 28 U. S. C. § 1257 (2), and we noted probable jurisdiction. 374 U. S. 803.

In this case we do not reach the broad question whether the Fourteenth Amendment of its own force forbids a State to arrest and prosecute those who, having been asked to leave a restaurant because of their color, refuse to do so. For here there are additional circumstances which, we think, call for reversal because of our holding in Peterson v. City of Greenville, 373 U. S. 244. The petitioners in Peterson were convicted of trespass in violation of a city ordinance after they had seated themselves at a lunch counter and remained there over the manager’s protest. At that time, however, there existed another Greenville ordinance which made it unlawful for restaurants to serve meals to white persons and colored persons in the same room or at the same table or counter. In Peterson the city argued that the manager’s refusal to serve Negroes was based on his own personal preference, which did not amount to “state action” forbidden by the Fourteenth Amendment. But we held that the case must be decided on the basis of what the ordinance required people to do, not on the basis of what the manager wanted to do. We said:

“When a state agency passes a law compelling persons to discriminate against other persons because of race, and the State’s criminal processes are employed in a way which enforces the discrimination mandated by that law, such a palpable violation of the Fourteenth Amendment cannot be saved by attempting to separate the mental urges of the discriminators.” 373 U. S., at 248.

See also Lombard v. Louisiana, 373 U. S. 267.

In the present case, when appellants were arrested and tried the Florida Board of Health had in effect a regulation, adopted under “authority of the Florida Legislature” and applicable to restaurants, which provided that “where colored persons are employed or accommodated” separate toilet and lavatory rooms must be provided. A month before petitioners were arrested, the State of Florida had issued a “Food and Drink Services” manual, based on state regulations. The manual said that as a “basic requirement,”

“Separate facilities shall be provided for each sex and for each race whether employed or served in the establishment.”

While these Florida regulations do not directly and expressly forbid restaurants to serve both white and colored people together, they certainly embody a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together. Of course, state action, of the kind that falls within the proscription of the Equal Protection Clause of the Fourteenth Amendment, may be brought about through the State’s administrative and regulatory agencies just as through its legislature. Cf. Lombard v. Louisiana, supra, 373 U. S., at 273. Here as in Peterson v. City of Greenville, supra, we conclude that the State through its regulations has become involved to such a significant extent in bringing about restaurant segregation that appellants’ trespass convictions must be held to reflect that state policy and therefore to violate the Fourteenth Amendment.

The judgment of the Supreme Court of Florida is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Douglas would reverse the judgment below for the reasons stated in his opinion in No. 12, Bell v. Maryland, post, p. 242.

Mr. Justice Harlan, considering himself bound by Peterson v. City of Greenville, 373 U. S. 244, acquiesces in the judgment of the Court.

       The statute says that a manager or other person in authority at a restaurant (among other places named in the statute) shall have the right to remove or cause to be removed any person “who, in the opinion of the management, is a person whom it would be detrimental” to the restaurant to serve. The management must first give notice, orally or in writing, that the guest depart. The statute then provides, “[A]ny guest who shall remain or attempt to remain in such . . . restaurant . . . after being requested, as aforesaid, to depart therefrom, shall be guilty of a misdemeanor . . . .”

       See 132 So. 2d 3 (Supreme Court of Florida); 132 So. 2d 771 (District Court of Appeal of Florida).

       Florida State Sanitary Code, c. VII, § 6. The substance of this regulation was reissued on June 26, 1962, and is now part of Florida Administrative Code, c. 170C, § 8.06.