source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Harlan, Mr. Justice Black, Mr. Justice White,

license: Public Domain

text:
    BUMPER v. NORTH CAROLINA.
    No. 1016.
    Argued April 24-25, 1968.
    Decided June 3, 1968.

      Norman B. Smith argued the cause and filed briefs for petitioner, pro hac vice.

      Harry W. McGalliard, Deputy Attorney General of North Carolina, argued the cause for respondent. With him on the brief was T. W. Bruton, Attorney General.

      Briefs of amici curiae were filed by- Jack Greenberg, James M. Nabrit III, Michael Meltsner, Leroy D. Clark, Norman C. Amaker, and Charles S. Ralston for the NAACP Legal Defense and Educational Fund, Inc., et al., and by F. Lee Bailey, pro se.

   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was brought to trial in a North Carolina court upon a charge of rape, an offense punishable in that State by death unless the jury recommends life imprisonment. Among the items of evidence introduced by the prosecution at the trial was a .22-caliber rifle allegedly used in the commission of the crime. The jury found the petitioner guilty, but recommended a sentence of life imprisonment. The trial court imposed that sentence, and the Supreme Court of North Carolina affirmed the judgment. We granted certiorari to consider two separate constitutional claims pressed unsuccessfully by the petitioner throughout the litigation in the North Carolina courts. First, the petitioner argues that his constitutional right to an impartial jury was violated in this capital case when the prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. Secondly, the petitioner contends that the .22-caliber rifle introduced in evidence against him was obtained by the State in a search and seizure violative of the Fourth and Fourteenth Amendments.

I.

In Witherspoon v. Illinois, ante, p. 510, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant’s guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. Duncan v. Louisiana, ante, p. 145; Turner v. Louisiana, 379 U. S. 466, 471-473; Irvin v. Dowd, 366 U. S. 717, 722-723. We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily “prosecution prone,” and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon, Accordingly, we decline to reverse the judgment of conviction upon this basis.

II.

The petitioner lived with his grandmother, Mrs. Hattie Leath, a 66-year-old Negro widow, in a house located in a rural area at the end of an isolated mile-long dirt road. Two days after the alleged offense but prior to the petitioner’s arrest, four white law enforcement officers — the county sheriff, two of his deputies, and a state investigator — went to this house and found Mrs. Leath there with some young children. She met the officers at the front door. One of them announced, “I have a search warrant to search your house.” Mrs. Leath responded, “Go ahead,” and opened the door. In the kitchen the officers found the rifle that was later introduced in evidence at the petitioner’s trial after a motion to suppress had been denied.

At the hearing on this motion, the prosecutor informed the court that he did not rely upon a warrant to justify the search, but upon the consent of Mrs. Leath. She testified at the hearing, stating, among other things:

“Four of them came. I was busy about my work, and they walked into the house and one of them walked up and said, T have a search warrant to search your house,’ and I walked out and told them to come on in. . . . He just come on in and said he had a warrant to search the house, and he didn’t read it to me or nothing. So, I just told him to come on in and go ahead and search, and I went on about my work. I wasn’t concerned what he was about. I was just satisfied. He just told me he had a search warrant, but he didn’t read it to me. He did tell me he had a search warrant.
“. . . He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word. ... I just seen them out there in the yard. They got through the door when I opened it. At that time, I did not know my grandson had been charged with crime. Nobody told me anything. They didn’t tell me anything, just picked it up like that. They didn’t tell me nothing about my grandson.”

Upon the basis of Mrs. Leath’s testimony, the trial court found that she had given her consent to the search, and denied the motion to suppress. The Supreme Court of North Carolina approved the admission of the evidence on the same basis.

The issue thus presented is whether a search can be justified as lawful on the basis of consent when that “consent” has been given only after the oficial conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.

We hold that Mrs. Leath did not consent to the search, and that it was constitutional error to admit the rifle in evidence against the petitioner. Mapp v. Ohio, 367 U. S. 643. Because the rifle was plainly damaging evidence against the petitioner with respect to all three of the charges against him, its admission at the trial was not harmless error. Chapman v. California, 386 U. S. 18.

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

It is so ordered.

Mr. Justice Douglas joins Part II of the opinion of the Court. Since, however, the record shows that 16 of 53 prospective jurors were excused for cause because of their opposition to capital punishment, he would also reverse on the ground that petitioner was denied the right to trial on the issue of guilt by a Jury representing a fair cross-section of the community. Witherspoon v. Illinois, ante, at 523 (separate opinion). Under North Carolina law, rape is punishable by death unless the jury recommends life imprisonment. N. C. Gen. Stat. § 14-21 (1953). But an indictment for rape includes the lesser offense of an assault with intent to commit rape, and the court has the duty to submit to the jury the lesser degrees of the offense of rape which are supported by the evidence. State v. Green, 246 N. C. 717, 100 S. E. 2d 52 (1957). See N. C. Gen. Stat. §§ 15-169, 15-170 (1953). These include assault with intent to commit rape, for which the range of punishment is one to 15 years’ imprisonment (N. C. Gen. Stat. § 14-22), and assault (N. C. Gen. Stat. § 14-33). In the instant case, the trial judge did in fact charge the jury with respect to these lesser offenses.

Mr. Justice Harlan,

concurring.

While I join in the judgment of the Court and in Part II of its opinion, I am prompted to add a brief note.

I share, as I am sure every member of the majority does, Mr. Justice Black’s abhorrence of the brutal crime of which petitioner stands convicted. To avoid any misapprehension, I wish to make it perfectly clear that reversal of this conviction is not a “penalty” imposed on the State for infringement of federal constitutional rights. Reversal by this Court results, as always, only from a decision that petitioner was not constitutionally proved guilty and hence there is no legally valid basis for imposition of a penalty upon him.

In determining whether a criminal defendant was convicted “according to law,” the test is not and cannot be simply whether this Court finds credible the evidence against him. Crediting or discrediting evidence is the function of the trier of fact, in this case a jury. The jury’s verdict is a lawful verdict, however, only if it is based upon evidence constitutionally admissible. When it is not, as it is not here, reversal rests on the oldest and most fundamental principle of our criminal jurisprudence- — that a defendant is entitled to put the prosecution to its lawful proof.

The evidence against petitioner consisted in part of a gun that he alleged was unlawfully taken from the home of Mrs. Leath, where petitioner was living. The State contended that Mrs. Leath had consented to the search of her home. However, this “consent” was obtained immediately after a sheriff told Mrs. Leath that he had a search warrant, that is, that he had a lawful right to enter her home with or without consent. Nothing Mrs. Leath said in response to that announcement can be taken to mean that she considered the officers welcome in her home with or without a warrant. What she would have done if the sheriff had not said he had a warrant is, on this record, a hypothetical question about an imaginary situation that Mrs. Leath never faced.

Of course, if the officers had a valid search warrant, no consent was required to make the search lawful. There was a search warrant in this case, and it remains possible that this warrant was issued under circumstances meeting all the requirements of the Federal Constitution. Consequently, if this were a situation where a state court had simply chosen the wrong line of constitutional analysis of this search, I would vote to remand the case to give the prosecution an opportunity to justify the search on proper grounds. However, as noted by the Court, the prosecution here explicitly and repeatedly renounced any reliance on the warrant. Like all other parties to lawsuits, a prosecutor has an obligation to the courts (including this Court) and to other parties to present its claims at the earliest appropriate time, and to create an adequate record. Cf. Ciucci v. Illinois, 356 U. S. 571, 573 (separate note of Mr. Justice Frankfurter and Mr. Justice Harlan).

Finally, if I were persuaded that the admission of the gun was “harmless error,” I would vote to affirm, and if I were persuaded that it was arguably harmless error, I would vote to remand the case for state consideration of the point. But the question cannot be whether, in the view of this Court, the defendant actually committed the crimes charged, so that the error was “harmless” in the sense that petitioner got what he deserved. The question is whether the error was such that it cannot be said that petitioner’s guilt was adjudicated on the basis of constitutionally admissible evidence, which means, in this case, whether the properly admissible evidence was such that the improper admission of the gun could not have affected the result.

I do not think this can be said here. The critical question was the identity of the perpetrator of these crimes. The State introduced eyewitness identification of petitioner by his two victims, and a gun with which there was evidence these victims were shot, together with testimony that it had been found in petitioner’s place of abode. The jury could, of course, have found the testimony of the victims credible beyond a reasonable doubt, and convicted petitioner on this basis alone. But it might well not have. The addition of a tangible crosscheck linking petitioner with the crime can hardly be said, from the judicial vantage point, to have been harmless surplusage.

Mr. Justice Black,

dissenting.

1 — 1

This case, like Witherspoon v. Illinois, ante, p. 510, decided today, was brought to this Court primarily to decide the question whether the constitutional rights of a criminal defendant are violated when prospective jurors who state they are opposed to capital punishment or who have conscientious scruples against imposing the death penalty are excluded for cause. As the Court in Witherspoon limited its holding to the question of punishment and not of guilt, the jury issue became moot in this case since petitioner had been sentenced to life imprisonment. Ironically, however, this case now becomes about as good an example as can be found of the fallacious assumption of the holding in Witherspoon. For the Witherspoon decision rests on the premise that a jury “[cjulled of all who harbor doubts about the wisdom of capital punishment” is somehow prosecution-prone, callous or even lacking in “charity.” Yet the jury in this case, from which had been excluded all persons who stated they were opposed to the death penalty, unanimously recommended life imprisonment in a case where, but for their recommendation, the death sentence would have been automatic. And this is a case where the evidence conclusively showed that the accused twice raped a young woman at gunpoint, shot both the woman and her companion while they were tied helplessly to trees with the announced intention of killing them, and left them for dead. Even with these horrible facts before it, this so-called “prosecution-prone,” “callous,” and “uncharitable” jury refused to allow imposition of the death penalty and recommended life imprisonment instead. In these circumstances, where the real reason for granting certiorari in the case has disappeared, it seems to me that the Court should dismiss the petition as improvidently granted. This is especially true here, where, as I point out at the end of this opinion, there is an open- and-shut case of guilt, and the petitioner received the lightest sentence available under state law.

II.

Passing over the jury issue, the Court still reverses the conviction in this case and sends it back for a new trial on the ground that the rifle, which the record shows was used to shoot the victims, and which is held by the majority to have been obtained through an unconstitutional search and seizure, was admitted into evidence at petitioner’s trial. One of the reasons that I cannot agree with the Court’s reversal is because I believe the searching officers had valid permission to conduct their search. The facts surrounding the search are these: Petitioner had been raised by his grandmother, Mrs. Hattie Leath, with whom he was living at the time the rape and assaults were committed. Shortly after the victims were able to recount to the police what had' happened to them, the county sheriff, with two of his deputies and a state police officer, went to Mrs. Leath’s house. One of the deputies went up on the porch of the house and stated to Mrs. Leath, who was standing inside the screen door, that he had a warrant to search her house. He did not appear to have any paper in his hand, and he did not read anything to her. Mrs. Leath’s immediate response, without mentioning anything about a warrant or asking to see it or read it or have it read to her, was to tell the deputy “to come on in.” At the trial Mrs. Leath described her reaction to the visit of the law officers as follows:

“He did tell me he had a search warrant. I don’t know if Sheriff Stockard was with him. I was not paying much attention. I told Mr. Stockard [after he had come up on the porch] to go ahead and look-all over the house. I had no objection to them making a search of my house. I was willing to let them look in any room or drawer in my house they wanted to. Nobody threatened me with anything. Nobody told me they were going to hurt me if I didn’t let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all.” (Emphasis added.)

My study of the record in this case convinces me that Mrs. Leath voluntarily consented to this search, and in fact that she actually wanted the officers to search her house — to prove to them that she had nothing to hide. Mrs. Leath’s readiness to permit the search was the action of a person so conscious of her innocence, so proud of her own home, that she was not going to require a search warrant, thus indicating a doubt about the rectitude of her household. There are such people in this world of ours, and the evidence in this case causes me to believe Mrs. Leath is one of them. As she herself testified, “I just give them a free will to look because I felt like the boy wasn’t guilty.”

Despite the statements of Mrs. Leath cited above, and despite the clear finding of consent by the trial judge, who personally saw and heard Mrs. Leath testify, this Court, refusing to accept Mrs. Leath’s sworn testimony that she did freely consent and overruling the trial judge’s findings, concludes on its own that she did not consent. I do not believe the Court should substitute what it believes Mrs. Leath should have said for what she actually said — “it was all my own free will.” I cannot accept what I believe to be an unwarranted conclusion by the Court.

III.

Even assuming for the purposes of argument that there was no consent to search and that the rifle which was seized from Mrs. Leath’s house should not have been admitted into evidence, I still believe the conviction should stand. For the overwhelming evidence in this case, even when the rifle and related testimony are excluded, amply demonstrates petitioner’s guilt. Unfortunately, to show this, it is necessary to go into the sordid facts of the case. The victims were a young man and his girl friend. At trial both testified in detail to the following: They were parked shortly after dusk on a country road not far from where the petitioner Bumper lived. Bumper approached the car, stuck a rifle barrel up to the window and ordered the girl to get out of the car, indicating that if she refused he would shoot her. Both got out of the car and Bumper ordered the girl to undress, stating that “I want a white girl’s p-.” When the girl adamantly refused, Bumper pointed the rifle at the young man, and the girl, understanding that she must submit or her boy friend would be killed, followed Bumper’s orders. Bumper then forced the young man into the rear seat of the car, requiring him to stay down on the floor, while Bumper raped the girl on the back of the car. A short time after this, Bumper forced the couple to drive to another spot. Here he made them get out of the car and walk down a dirt road into some bushes. At this time Bumper told the couple he was going to kill them, and when they pleaded with him to let them go, he replied, “I can’t do it; you will go to the cops.” The couple then suggested that if Bumper would tie them up and blindfold them that he could get away with no problem. This Bumper did, tying each to a separate tree. But he did not leave. Instead he raped the girl again while she was tied to the tree. After this, Bumper went over to the young man and felt his chest, asking him where his heart was and if he was scared. He then cooly proceeded to shoot the young man where he thought his heart was. The girl, tied to the tree and blindfolded, heard the shot, and a moment later herself was shot through the left breast close to her heart. Bumper then took the car and drove away, obviously believing he had killed the young couple. They were able to free themselves, however, and with much difficulty made their way to a nearby house where the owner got them to a hospital. The time during which the couple was held captive was approximately an hour and a half. During that time they clearly got to know who their assailant was. Both got a plain view of Bumper right at the beginning of their ordeal when they opened the car doors and saw his face in the light coming from the inside of the car. Moreover, the undisputed evidence in the record shows that the night of the attack was a bright moonlit night. Both testified positively at trial that it was Bumper. Also there was substantial corroborating evidence outside of that relating to the rifle. Here we have the clear and convincing testimony of the two victims, whose characters were in no way impeached or challenged. The only witnesses at the trial were state witnesses (the two victims plus medical and police testimony), and none of their testimony was refuted or denied in any way. Thus, this is a case where every word of evidence introduced at trial pointed to guilt, and there was no challenge to the truthfulness of the State’s evidence, nor to the character of any of its witnesses. Yet even with all this, the Court persists in reversing the case, thus requiring the State to hold a new trial if it wishes to punish Bumper for his crimes.

When it is clear beyond all shadow of a doubt, as here, that a defendant committed the crimes charged, I do not believe that this Court should enforce on the States a “-per se” rule automatically requiring a new trial in every case where this Court concludes that some part of the evidence was obtained by an unreasonable search and seizure. The primary reason the “exclusionary rule” was adopted by this Court was to deter unreasonable searches and seizures in violation of the Fourth Amendment. Mapp v. Ohio, 367 U. S. 643. But see my concurring opinion at 661-666. I believe that the deterrence desired by some can be served adequately without blind adherence to a mechanical formula that requires automatic reversal in every case where the exclusionary rule is violated., While little is known about the effect the exclusionary rule really has on actual police practices, I think it is a fair assumption that refusal to reverse a conviction of a defendant, because of the admission of illegally seized evidence, where other evidence conclusively demonstrates his guilt, is not going to lessen police sensitivity to the exclusionary rule, thereby reducing its deterrent effect. Obviously at the time a search is carried out the police are not going to know whether the evidence they hope to obtain is going to be necessary for the prosecution’s case, and, of course, if they know it will not be necessary, no search is needed. Thus the only effect of not automatically reversing all cases in which there has been a violation of the exclusionary rule will be to allow state convictions of obviously guilty defendants to stand. And they should stand.

IV.

In this case, as I have shown, the evidence of the two victims points positively to guilt without any doubt. When there is added to this the fact that the rifle, from which came the bullets which went into the bodies of the two victims, was found where Bumper lived, which was not far from the scene of the assault, this makes, as the North Carolina Supreme Court pointed out, assurance doubly sure. Whether one views the evidence of guilt with or without the rifle, the conclusion is inescapable that this defendant committed the crimes for which the jury convicted him. In these circumstances no State should be forced to give a new trial; justice does not require it.

Mr. Justice White,

dissenting.

When “consent” to a search is given after the occupant has been told by police officers that they have a warrant for the search, it seems reasonable to me for Fourth Amendment purposes to view the consent as conditioned on there being a valid warrant, absent clear proof that the consent was actually unconditional. The evidence in this record does not show unconditional consent with sufficient clarity, and perhaps this would be the result in most cases. But this does not mean that every search following conditional consent is invalid. If upon a motion to suppress or upon an objection to evidence offered at the trial, the State produces a valid warrant for the search, there is no good reason to exclude the evidence simply because police at the time of the search relied on the consent and neither served nor returned the warrant. In the case before us the State represented in this Court that there was a warrant for the challenged search. Unlike the Court and Mr. Justice Harlan, I would not brush this matter aside. Since the existence and validity of the warrant have not been determined in the state courts, the case is not ripe for reversal or affirmance. I would therefore not reverse, but vacate, this conviction, returning the case to the state courts for a determination of the validity of the warrant. If because of the absence of probable cause, or for some other reason, the warrant would not have been a proper predicate for the search, Mapp v. Ohio, 367 U. S. 643 (1961), would require reversal of the conviction unless it is saved under the harmless-error rule of Chapman v. California, 386 U. S. 18 (1967).

       “Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and against her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shall so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State’s prison, and the court shall so instruct the jury.” N. C. Gen. Stat. § 14-21 (1953).

       The petitioner was also convicted upon two charges of felonious assault and sentenced to consecutive 10-year prison terms.

       270 N. C. 521, 155 S. E. 2d 173.

       389 U. S. 1034.

       He did submit affidavits to the North Carolina Supreme Court referring to studies by W. C. Wilson and F. J. Goldberg, see Witherspoon v. Illinois, ante, at 517, n. 10. The court made no findings with respect to those studies and did not mention them in its opinion.

       In addition to the materials mentioned in Witherspoon, ante, at 517, n. 10, the petitioner’s brief in this Court cites an unpublished dissertation by R. Crosson, An Investigation Into Certain Personality Variables Among Capital Trial Jurors (Western Reserve University, January 1966), involving a sample of 72 jurors in Ohio.

       “The Court: There is a motion here that says the property [was] seized against the will of Mrs. Hattie Leath and without a search warrant. Now, the question is, are we going into the search warrant ?
      “Mr. Cooper: The State is not relying on the search warrant.
      “The Court: Are you stating so for the record?
      “Mr. Cooper: Yes, sir.”

       She also testified, at another point:
      “I had no objection to them making a search of my house. I was willing to let them look in any room or drawer in my house they wanted to. Nobody threatened me with anything. Nobody told me they were going to hurt me if I didn’t let them search my house. Nobody told me they would give me any money if I would let them search. I let them search, and it was all my own free will. Nobody forced me at all.
      “I just give them a free will to look because I felt like the boy wasn’t guilty.”
      The transcript of the suppression hearing comes to us from North Carolina in the form of a narrative; i. e., the actual questions and answers have been rewritten in the form of continuous first person testimony. The effect is to put into the mouth of the witness some of the words of the attorneys. In the ease of an obviously compliant witness like Mrs. Leath, the result is a narrative that has the tone of decisiveness but is shot through with contradictions.

       “The Court finds that from the evidence of Mrs. Hattie Leath that it is of a clear and convincing nature that she, the said Mrs. Hattie Leath, voluntarily consented to the search of her premises, as is more particularly set forth in her evidence, and that that consent was specifically given and is not the result of coercion from the officers.”

       That court also stated: “The fact that [the search] did reveal the presence of the guilty weapon . . . justifies the search. . . . [The petitioner’s] rights have not been violated. Rather, his wrongs have been detected.” 270 N. C., at 530-531, 155 S. E. 2d, at 180.
      Any idea that a search can be justified by what it turns up was long ago rejected in our constitutional jurisprudence. “A search prosecuted in violation of the Constitution is not made lawful by what it brings to light ...” Byars v. United States, 273 U. S. 28, 29. See also United States v. Di Re, 332 U. S. 581, 595; Henry v. United States, 361 U. S. 98, 103.

       Mrs. Leath owned both the house and the rifle. The petitioner concedes that her voluntary consent to the search would have been binding upon him. Conversely, there can be no question of the petitioner’s standing to challenge the lawfulness of the search. He was the “one against whom the search was directed,” Jones v. United States, 362 U. S. 257, 261, and the house searched was his home. The rifle was used by all members of the household and was found in the common part of the house.

        Wren v. United States, 352 F. 2d 617; Simmons v. Bomar, 349 F. 2d 365; Judd v. United States, 89 U. S. App. D. C. 64, 190 F. 2d 649; Kovach v. United States, 53 F. 2d 639.

       See, e. g., Amos v. United States, 255 U. S. 313, 317; Johnson v. United States, 333 U. S. 10, 13; Higgins v. United States, 93 U. S. App. D. C. 340, 209 F. 2d 819; United States v. Marra, 40 F. 2d 271; MacKenzie v. Robbins, 248 F. Supp. 496.

       “Orderly submission to law-enforcement officers who, in effect, represented to the defendant that they had the authority to enter and search the house, against his will if necessary, was not such consent as constituted an understanding, intentional and voluntary waiver by the defendant of his fundamental rights under the Fourth Amendment to the Constitution.” United States v. Elliott, 210 F. Supp. 357, 360.
      “One is not held to have consented to the search of his premises where it is accomplished pursuant to an apparently valid search warrant. On the contrary, the legal effect is that consent is on the basis of such a warrant and his permission is construed as an intention to abide by the law and not resist the search under the warrant, rather than an invitation to search.” Bull v. Armstrong, 254 Ala. 390, 394, 48 So. 2d 467, 470.
      “One who, upon the command of an officer authorized to enter and search and seize by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no matter by what language used in such acquiescence, is but showing a regard for the supremacy of the law. . . . The presentation of a search warrant to those in charge at the place to be searched, by one authorized to serve it, is tinged with coercion, and submission thereto cannot be considered an invitation that would waive the constitutional right against unreasonable searches and seizures, but rather is to be considered a submission to the law.” Meno v. State, 197 Ind. 16, 24, 164 N. E. 93, 96.
      See also Salata v. United States, 286 F. 125; Brown v. State, 42 Ala. App. 429, 167 So. 2d 281; Mattingly v. Commonwealth, 199 Ky. 30, 250 S. W. 105. Cf. Gibson v. United States, 80 U. S. App. D. C. 81, 149 F. 2d 381; Naples v. Maxwell, 271 F. Supp. 850; Atwood v. State, 44 Okla. Cr. 206, 280 P. 319; State v. Watson, 133 Miss. 796, 98 So. 241.

       During the course of the argument in this case we were advised that the searching officers did, in fact, have a warrant. But no warrant was ever returned, and there is no way of knowing the conditions under which it was issued, or determining whether it was based upon probable cause.

       It is suggested in dissent that “[e]ven assuming . . . that there was no consent to search and that the rifle . . . should not have been admitted into evidence, . . . the conviction should stand.” This suggestion seems to rest on the “horrible” facts of the case, and the assumption that the petitioner was guilty. But it is not the function of this Court to determine innocence or guilt, much less to apply our own subjective notions of justice. Our duty is to uphold the Constitution of the United States.
      In view of the discursive factual recital contained in the dissenting opinion, however, an additional word may be in order. There can be no doubt that the crimes were grave and shocking. There can be doubt that the petitioner was their perpetrator. The crimes were committed at night. When, at first, the victims separately viewed a lineup that included the petitioner, each of the victims identified the same man as their assailant. That man was not the petitioner. Later, the victims together viewed another lineup, and every man in the lineup was made to speak his name for “voice identification.” This time the victims identified the petitioner as their assailant. At the time of the lineups a local newspaper had reported that a man named Wayne Bumper was being held by the sheriff as the “prime suspect” in the case, and at least one of the victims knew of that fact. Earlier both victims had been shown a collection of photographs. One victim identified a picture of the petitioner; the petitioner’s name was written on the back of the photograph.

       See ante, at 522, n. 21.

       See ante, at 520, n. 17.

       See N. C. Gen. Stat. § 14r-21. The Court imposed additional sentences of 10 years’ imprisonment, to run consecutively, on the two felonious assault charges.

       Mrs. Leath’s voluntary consent was sufficient to validate the search since she owned the house which was searched and the rifle that was taken. It should also be noted that the rifle was not found in petitioner’s private room, nor in any part of the house assigned to him, but in the kitchen behind the door.

       Mrs. Leath owned the house in which she was living and throughout her questioning repeatedly referred to “my house.”

       See Commonwealth v. Tucker, 189 Mass. 457, 469, 76 N. E. 127, 131. In this case a mother consented for officers who were looking for broken pieces of a knife used in a murder to search her home. The Court found that officers went “to the door of the house where Tucker resided, and stated to his mother, at the outside door of the house, that they had this search warrant to search for the article named therein . . . that she . . . invited the officers to make all the search they desired, saying that she knew her son to be innocent; and thereupon the officers made search, not upon the warrant, but in consequence of her invitation . . . .” The knife blade was admitted against the contention that it was barred by the Fourth and Fourteenth Amendments.

       The finding of the court was as follows: “The Court finds that from the evidence of Mrs. Hattie Leath that it is of a clear and convincing nature that she, the said Mrs. Hattie Leath, voluntarily consented to the search of her premises, as is more particularly set forth in her evidence, and that that consent was specifically given and is not the result of coercion from the officers.”

       It was on these facts and this testimony, it must be remembered, that this jury, selected in the way Witherspoon holds is designed to produce a “hanging” jury, recommended a life sentence for petitioner.

       The Court’s opinion attempts to convey the impression that the victims were not sure of their assailant’s identification because of an alleged mistake during a police lineup. See majority opinion, n. 16. This completely overlooks the fact, however, that before Bumper was arrested, and before the victims had any idea of their attacker’s name or where he was from, the girl, while still in the hospital, identified Bumper’s picture from a number of others. The young man also had identified Bumper’s picture days before the lineup was held. After the girl went through the lineup the first time she confessed that she was too scared to look at the men and that she had made no real attempt at identification. And it should not be forgotten that she testified positively under oath at trial that “In my own mind I am certain [that Bumper was my assailant], and nothing could really dissuade me from it. I haven’t made up my mind; I know.”

       28 U. S. C. §2106 provides: “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” (Emphasis added.)

      Of course, if it was determined that the grandmother's consent was not good against petitioner, who had standing to raise the validity of the search, it would be unnecessary to deal with the issues which have been argued and determined in this case.


author: Mb. Justice Marshall Mr. Justice Douglas, Mr. Justice White,

text:
    PICKERING v. BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT 205, WILL COUNTY.
    No. 510.
    Argued March 27, 1968.
    Decided June 3, 1968.

      John Ligtenberg argued the cause for appellant. With him on the briefs was Andrew J. Leahy.

      John F. Cirricione argued the cause and filed a brief for appellee.

      Milton I. Shadur filed a brief for the American Civil Liberties Union, Illinois Division, as amicus curiae, urging reversal.
   Mb. Justice Marshall

delivered the opinion of the Court.

Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant's dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and hence, under the relevant Illinois statute, Ill. Rev. Stat., c. 122, § 10-22.4 (1963), that “interests of the school require[d] [his dismissal].”

Appellant’s claim that his writing of the letter was protected by the First and Fourteenth Amendments was rejected. Appellant then sought review of the Board’s action in the Circuit Court of Will County, which affirmed his dismissal on the ground that the determination that appellant’s letter was detrimental to the interests of the school system was supported by substantial evidence and that the interests of the schools overrode appellant’s First Amendment rights. On appeal, the Supreme Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. 36 Ill. 2d 568, 225 N. E. 2d 1 (1967). We noted probable jurisdiction of appellant’s claim that the Illinois statute permitting his dismissal on the facts of this case was unconstitutional as applied under the First and Fourteenth Amendments. 389 U. S. 925 (1967). For the reasons detailed below we agree that appellant’s rights to freedom of speech were violated and we reverse.

I.

In February of 1961 the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed and the schools were built with the money raised by the bond sales. In May of 1964 a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor (which we reproduce in an Appendix to this opinion) that resulted in his dismissal.

Prior to the vote on the second tax increase proposal a variety of articles attributed to the District 205 Teachers’ Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district’s schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper.

The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.

The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing the Board- charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these fines were made.

The Illinois courts reviewed the proceedings solely to determine whether the Board’s findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant’s publication of the letter was “detrimental to the best interests of the schools.” Pickering’s claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools “which in the absence of such position he would have an undoubted right to engage in.” It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant’s dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection. In any event, it clearly rejected Pickering’s claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position.

II.

To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E. g., Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967). “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of- how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, supra, at 605-606. At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

III.

The Board contends that “the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience.” Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made “with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not,” New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964), should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.

An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Accordingly, to the extent that the Board’s position here can be taken to suggest that even comments on matters of public concern that are substantially correct, such as statements (1) — (4) of appellant’s letter, see Appendix, infra, may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it.

We next consider the statements in appellant’s letter which we agree to be false. The Board’s original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering’s letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.

However, the only way in which the Board could conclude, absent any evidence of the actual - effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members’ own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant’s letter containing the statements that we have found to be false, see Appendix, infra) cannot reasonably be regarded as per se detrimental to the district’s schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.

In addition, the fact that particular illustrations of the Board’s claimed undesirable emphasis on athletic programs are false would not normally have any necessary impact on the actual operation of the schools, beyond its tendency to anger the Board. For example, Pickering’s letter was written after the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on the ability of the school district to raise necessary revenue, since there was no showing that there was any proposal to increase taxes pending when the letter was written.

More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant’s errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether under such circumstances a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them.

What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.

IV.

The public interest in having free and unhindered debate on matters of public importance — the core value of the Free Speech Clause of the First Amendment — is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); St. Amant v. Thompson, 390 U. S. 727 (1968). Compare Linn v. United Plant Guard Workers, 383 U. S. 53 (1966). The same test has been applied to suits for invasion of privacy based on false statements where a “matter of public interest” is involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). It is therefore perfectly clear that, were appellant a member of the general public, the State’s power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times.

This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. Louisiana, 379 U. S. 64 (1964); Wood v. Georgia, 370 U. S. 375 (1962). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district; attorney about the judges before whom he regularly appeared.

While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.

In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant’s letter, see Appendix, infra, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion.

/£ ¿§ §o ordered.

Mr. Justice Douglas,

with whom Mr. Justice Black joins,

concurs in the judgment of the Court for the reasons set out in his concurring opinions in Time, Inc. v. Hill, 385 U. S. 374, 401, Rosenblatt v. Baer, 383 U. S. 75, 88, and Garrison v. Louisiana, 379 U. S. 64, 80, and in the separate opinions of Mr. Justice Black in Curtis Publishing Co. v. Butts, 388 U. S. 130, 170, and New York Times Co. v. Sullivan, 376 U. S. 254, 293.

APPENDIX TO OPINION OF THE COURT.

A. Appellant’s letter.

LETTERS TO THE EDITOR

**** Newspapers, Inc. Thursday, September 24, 1964, Page 4

Dear Editor:

I enjoyed reading the back issues of your paper which you loaned to me. Perhaps others would enjoy reading them in order to see just how far the two new high schools have deviated from the original promises by the Board of Education. First, let me state that I am referring to the February thru November, 1961 issues of your paper, so that it can be checked.

One statement in your paper declared that swimming pools, athletic fields, and auditoriums had been left out of the program. They may have been left out but they got put back in very quickly because Lockport West has both an auditorium and athletic field. In fact, Lockport West has a better athletic field than Lockport Central. It has a track that isn’t quite regulation distance even though the board spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn’t supposed to be there in the first place. It must have fallen out of the sky. Such responsibility has been touched on in other letters but it seems one just can’t help noticing it. I am not saying the school shouldn’t have these facilities, because I think they should, but promises are promises, or are they?

Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue, many letters have been written to this paper and probably more will follow, I feel I must say something about the letters and their writers. Many of these letters did not give the whole story. Letters by your Board and Administration have stated that teachers’ salaries total $1,297,746 for one year. Now that must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the high school and I know this just isn’t the case. However, this shows their “stop at nothing” attitude. To illustrate further, do you know that the superintendent told the teachers, and I quote, “Any teacher that opposes the referendum should be prepared for the consequences.” I think this gets at the reason we have problems passing bond issues. Threats take something away; these are insults to voters in a free society. We should try to sell a program on its merits, if it has any.

Remember those letters entitled “District 205 Teachers Speak,” I think the voters should know that those letters have been written and agreed to by only five or six teachers, not 98% of the teachers in the high school. In fact, many teachers didn’t even know who was writing them. Did you know that those letters had to have the approval of the superintendent before they could be put in the paper? That’s the kind of totalitarianism teachers live in at the high school, and your children go to school in.

In last week’s paper, the letter written by a few uninformed teachers threatened to close the school cafeteria and fire its personnel. This is ridiculous and insults the intelligence of the voter because properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing money, then the board should not be packing free lunches for athletes on days of athletic contests. Whatever the case, the taxpayer’s child should only have to pay about 300 for his lunch instead of 350 to pay for free lunches for the athletes.

In a reply to this letter your Board of Administration will probably state that these lunches are paid for from receipts from the games. But $20,000 in receipts doesn’t pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers.

You see we don’t need an increase in the transportation tax unless the voters want to keep paying $50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the $200,000 is made up in coaches’ salaries, athletic directors’ salaries, baseball pitching machines, sodded football fields, and thousands of dollars for other sports equipment.

These things are all right, provided we have enough money for them. To sod football fields on borrowed money and then not be able to pay teachers’ salaries is getting the cart before the horse.

If these things aren’t enough for you, look at East High. No doors on many of the classrooms, a plant room without any sunlight, no water in a first aid treatment room, are just a few of many things. The taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that building also.

Once again, the board must have forgotten they were going to spend $3,200,000 on the West building and $2,300,000 on the East building.

As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don’t know whom to trust with any more tax money.

I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school?

Respectfully,

Marvin L. Pickering.

B. Analysis.

The foregoing letter contains eight principal statements which the Board found to be false. Our independent review of the record convinces us that Justice Schaefer was correct in his dissenting opinion in this case when he concluded that many of appellant’s statements which were found by the Board to be false were in fact substantially correct. We shall deal with each of the statements found to be false in turn. (1) Appellant asserted in his letter that the two new high schools when constructed deviated substantially from the original promises made by the Board during the campaign on the bond issue about the facilities they would contain. The Board based its conclusion that this statement was false on its determination that the promises referred to were those made in the campaign to pass the second bond issue in December of 1961. In the campaign on the first bond issue the Board stated that the plans for the two schools did not include such items as swimming pools, auditoriums, and athletic fields. The publicity put out by the Board on the second bond issue mentioned nothing about the addition of an auditorium to the plans and also mentioned nothing specific about athletic fields, although a general reference to “state required physical education” facilities was included that was similar to a reference made in the material issued by the Board during the first campaign.

In sum, the Board first stated that certain facilities were not to be included in the new high schools as an economy measure, changed its mind after the defeat of the first bond issue and decided to include some of the facilities previously omitted, and never specifically or even generally indicated to the taxpayers the change. Appellant’s claim that the original plans, as disclosed to the public, deviated from the buildings actually constructed is thus substantially correct and his characterization of the Board’s prior statement as a “promise” is fair as a matter of opinion. The Board’s conclusion to the contrary based on its determination that appellant’s statement referred only to the literature distributed during the second bond issue campaign is unreasonable in that it ignores the word “original” that modifies “promises” in appellant’s letter.

(2) Appellant stated that the Board incorrectly informed the public that “teachers’ salaries” total $1,297,746 per year. The Board found that statement false. However, the superintendent of schools admitted that the only way the Board’s figure could be regarded as accurate was to change the word “teachers” to “instructional” whereby the salaries of deans, principals, librarians, counselors, and four secretaries at each of the district’s three high schools would be included in the total. Appellant’s characterization of the Board’s figure as incorrect is thus clearly accurate.

(3) Pickering claimed that the superintendent had said that any teacher who did not support the 1961 bond issue referendum should be prepared for the consequences. The Board found this claim false. However, the statement was corroborated by the testimony of two other teachers, although the superintendent denied making the remark attributed to him. The Illinois Supreme Court appears to have agreed that something along the lines stated by appellant was said, since it relied, in upholding the Board’s finding that appellant’s version of the remark was false, on testimony by one of the two teachers that he interpreted the remark to be a prediction about the adverse consequences for the schools should the referendum not pass rather than a threat against noncooperation by teachers. However, the other teacher testified that he didn’t know how to interpret the remark. Accordingly, while appellant may have misinterpreted the meaning of the remark, he did not misreport it.

(4) Appellant’s letter stated that letters from teachers to newspapers had to have the approval of the superintendent before they could be submitted for publication. The Board relied in finding this statement false on the testimony by the superintendent that no approval was required by him. However, the Handbook for Teachers of the district specifically stated at that time that material submitted to local papers should be checked with the building principal and submitted in triplicate to the publicity coordinator. In particular, the teachers’ letters to which appellant was specifically referring in his own letter had in fact been submitted to the superintendent prior to their publication. Thus this statement is substantially correct.

The other four statements challenged by the Board, are factually incorrect in varying degrees. (5) Appellant’s letter implied that providing athletes in the schools with free lunches meant that other students must pay 35(i instead of 300 for their lunches. This statement is erroneous in that while discontinuing free lunches for athletes would have permitted some small decrease in the 350 charge for lunch to other students, the decrease would not have brought the price down to 300. (6) Appellant claimed that the Board had been spending $200,000 a year on athletics while neglecting the wants of teachers. This claim is incorrect in that the $200,000 per year figure included over $130,000 of nonrecurring capital expenditures. (7) Appellant also claimed that the Board had been spending $50,000 a year on transportation for athletes. This claim is completely false in that the expenditures on travel for athletes per year were about $10,000. (8) Finally, appellant stated that football fields had been sodded on borrowed money, while the Board had been unable to pay teachers’ salaries. This statement is substantially correct as to the football fields being sodded with borrowed money because the money spent was the proceeds of part of the bond issue, which can fairly be characterized as borrowed. It is incorrect insofar as it suggests that the district’s teachers had actually not been paid upon occasion, but correct if taken to mean that the Board had at times some difficulty in obtaining the funds with which to pay teachers. The manner in which the last four statements are false is perfectly consistent with good-faith error, and there is no evidence in the record to show that anything other than carelessness or insufficient information was responsible for their being made.

Mr. Justice White,

concurring in part and dissenting in part.

The Court holds that truthful statements by a school teacher critical of the school board are within the ambit of the First Amendment. So also are false statements innocently or negligently made. The State may not fire the teacher for making either unless, as I gather it, there are special circumstances, not present in this case, demonstrating an overriding state interest, such as the need for confidentiality or the special obligations which a teacher in a particular position may owe to his superiors. The core of today’s decision is the holding that Pickering’s discharge must be tested by the standard of New York Times Co. v. Sullivan, 376 U. S. 254 (1964). To this extent I am in agreement.

The Court goes on, however, to reopen a question I had thought settled by New York Times and the cases that followed it, particularly Garrison v. Louisiana, 379 U. S. 64 (1964). The Court devotes several pages to reexamining the facts in order to reject the determination below that Pickering’s statements harmed the school system, ante, at 570-573, when the question of harm is clearly irrelevant given the Court’s determination that Pickering’s statements were neither knowingly nor recklessly false and its ruling that in such circumstances a teacher may not be fired even if the statements are injurious. The Court then gratuitously suggests that when statements are found to be knowingly or recklessly false, it is an open question whether the First Amendment still protects them unless they are shown or can be presumed to have caused harm. Ante, at 574, n. 6. Deliberate or reckless falsehoods serve no First Amendment ends and deserve no protection under that Amendment. The Court unequivocally recognized this in Garrison, where after reargument the Court said that “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.” 379 U. S., at 75. The Court today neither explains nor justifies its withdrawal from the firm stand taken in Garrison. As I see it, a teacher may be fired without violation of the First Amendment for knowingly or recklessly making false statements regardless of their harmful impact on the schools. As the Court holds, however, in the absence of special circumstances he may not be fired if his statements were true or only negligently false, even if there is some harm to the school system. I therefore see no basis or necessity for the Court’s foray into fact-finding with respect to whether the record supports a finding as to injury. If Pickering’s false statements were either knowingly or recklessly made, injury to the school system becomes irrelevant, and the First Amendment would not prevent his discharge. For the State to be constitutionally precluded from terminating his employment, reliance on some other constitutional provision would be required.

Nor can I join the Court in its findings with regard to whether Pickering knowingly or recklessly published false statements. Neither the State in presenting its evidence nor the state tribunals in arriving at their findings and conclusions of law addressed themselves to the elements of the new standard which the Court holds the First Amendment to require in the circumstances of this case. Indeed, the state courts expressly rejected the applicability of both New York Times and Garrison. I find it wholly unsatisfactory for this Court to make the initial determination of knowing or reckless falsehood from the cold record now before us. It would be far more appropriate to remand this case to the state courts for further proceedings in light of the constitutional standard which the Court deems applicable to this case, once the relevant facts have been ascertained in appropriate proceedings.

       Appellant also challenged the statutory standard on which the Board based his dismissal as vague and overbroad. See Keyishian v. Board of Regents, 385 U. S. 589 (1967); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960). Because of our disposition of this case we do not reach appellant’s challenge to the statute on its face.

       We have set out in the Appendix our detailed analysis of the specific statements in appellant’s letter which the Board found to be false, together with our reasons for concluding that several of the statements were, contrary to the findings of the Board, substantially correct.

       It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases.

       There is likewise no occasion furnished by this case for consideration of the extent to which teachers can be required by narrowly drawn grievance procedures to submit complaints about the operation of the schools to their superiors for action thereon prior to bringing the complaints before the public.

       We also note that this ease does not present a situation in which a teacher’s public statements are so without foundation as to call into question his fitness to perform his duties in the classroom. In such a case, of course, the statements would merely be evidence of the teacher’s general competence, or lack thereof, and not an independent basis for dismissal.

       Because we conclude that appellant’s statements were not knowingly or recklessly false, we have no occasion to pass upon the additional question whether a statement that was knowingly or recklessly false would, if it were neither shown nor could reasonably be presumed to have had any harmful effects, still be protected by the First Amendment. See also n. 5, supra.

       We shall not bother to enumerate some of the statements which the Board found to be false because their triviality is so readily apparent that the Board could not rationally have considered them as detrimental to the interests of the schools regardless of their truth or falsity.

       This Court has regularly held that where constitutional rights are in issue an independent examination of the record will be made in order that the controlling legal principles may be applied to the actual facts of the case. E. g., Norris v. Alabama, 294 U. S. 587 (1935); Pennekamp v. Florida, 328 U. S. 331 (1946); New York Times Co. v. Sullivan, 376 U. S. 254, 285 (1964). However, even in cases where the upholding or rejection of a constitutional claim turns on the resolution of factual questions, we also consistently give great, if not controlling, weight to the findings of the state courts. In the present case the trier of fact was the same body that was also both the victim of appellant’s statements and the prosecutor that brought the charges aimed at securing his dismissal. The state courts made no independent review of the record but simply contented themselves with ascertaining, in accordance with statute, whether there was substantial evidence to support the Board’s findings.
      Appellant requests us to reverse the state courts’ decisions upholding his dismissal on the independent ground that the procedure followed above deprived him of due process in that he was not afforded an impartial tribunal. However, appellant makes this contention for the first time in this Court, not having raised it at any point in the state proceedings. Because of this, we decline to treat appellant’s claim as an independent ground for our decision in this case. On the other hand, we do not propose to blind ourselves to the obvious defects in the fact-finding process occasioned by the Board’s multiple functioning vis-a^-vis appellant. Compare Tumey v. Ohio, 273 U. S. 510 (1927); In re Murchison, 349 U. S. 133 (1955). Accordingly, since the state courts have at no time given de novo consideration to the statements in the letter, we feel free to examine the evidence in this case completely independently and to afford little weight to the factual determinations made by the Board.

       See ante, at 569-570, 572 and nn. 3, 4. The Court does not elaborate upon its suggestion that there may be situations in which, with reference to certain areas of public comment, a teacher may have special obligations to his superiors. It simply holds that in this case, with respect to the particular public comment made by Pickering, he is more like a member of the general public and, apparently, too remote from the school board to require placing him into any special category. Further, as I read the Court’s opinion, it does not foreclose the possibility that under the First Amendment a school system may have an enforceable rule, applicable to teachers, that public statements about school business must first be submitted to the authorities to check for accuracy.

       Even if consideration of harm were necessary in this case, I could not join the Court in concluding on this record that harm to the school administration was not proved and could not be presumed.


author: Mr. Justice Marshall

text:
    SABBATH v. UNITED STATES.
    No. 898.
    Argued May 2, 1968.
    Decided June 3, 1968.

      Murray H. Bring, by appointment of the Court, 390 U. S. 935, argued the cause and filed briefs for petitioner.

      John S. Martin, Jr., argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Vinson, Beatrice Rosenberg, and Kirby W. Patterson.

   Mr. Justice Marshall

delivered the opinion of the Court.

The issue in this case is whether petitioner's arrest was invalid because federal officers opened the closed but unlocked door of petitioner's apartment and entered in order to arrest him without first announcing their identity and purpose. We hold that the method of entry vitiated the arrest and therefore that evidence seized in the subsequent search incident thereto should not have been admitted at petitioner’s trial.

On February 19, 1966, one William Jones was detained at the border between California and Mexico by United States customs agents, who found in his possession an ounce of cocaine. After some questioning, Jones told the agents that he had been given the narcotics in Tijuana, Mexico, by a person named “Johnny," whom he had accompanied there from Los Angeles. He said he was to transport the narcotics to “Johnny” in the latter city.

Also found in Jones’ possession was a card on which was written the name “Johnny” and a Los Angeles telephone number. On the following day at about 3 p. m., Jones made a call to the telephone number listed on the card; a customs agent dialed the number, and with Jones’ permission, listened to the ensuing conversation. A male voice answered the call, and Jones addressed the man as “Johnny.” Jones said he was in San Diego, and still had “his thing.” The man asked Jones if he had “any trouble getting through the line.” Jones replied that he had not. Jones inquired whether “Johnny” planned to remain at home, and upon receiving an affirmative answer, indicated that he was on his way to Los Angeles, and would go to the man’s apartment.

At about 7:30 that evening, the customs agents went with Jones to an apartment building in Los Angeles. The agents returned to Jones the cocaine they had seized from him, and placed a small broadcasting device on him. The agents waited outside the building, listening on a receiving apparatus. Jones knocked on the apartment door; a woman answered. Jones asked if “Johnny” was in, and was told to wait a minute. Steps were heard and then a man asked Jones something about “getting through the line.” Because of noise from a phonograph in the apartment, reception from the broadcasting device on Jones’ person was poor, but agents did hear the word “package.”

The customs agents waited outside for five to 10 minutes, and- then proceeded to the apartment door. One knocked, waited a few seconds, and, receiving no response, opened the unlocked door, and entered the apartment with his gun drawn. Other agents followed, at least one of whom also had his gun drawn. They saw petitioner sitting on a couch, in the process of withdrawing his hand from under the adjacent cushion. After placing petitioner under arrest, an agent found the package of cocaine under the cushion, and subsequently other items (e. g., small pieces of tin foil) were found in the apartment; officers testified at trial they were adapted to packaging narcotics.

Petitioner and Jones were indicted for knowingly importing the cocaine into this country and concealing it, in violation of § 2 of the Narcotic Drugs Import and Export Act, as amended, 35 Stat. 614, 21 U. S. C. §§ 173 and 174. Petitioner was tried alone. The narcotics seized at petitioner’s apartment were admitted into evidence, over objection. On appeal, following the conviction, the Court of Appeals for the Ninth Circuit ruled that the officers, in effecting entry to petitioner’s apartment by opening the closed but unlocked door, did not “break open” the door within the meaning of 18 U. S. C. § 3109 and therefore were not required by that statute to make a prior announcement of “authority and purpose.” 380 F. 2d 108. We granted certiorari, 389 TJ. S. 1003 (1967), to consider the somewhat uncomplicated but nonetheless significant issue of whether the agents’ entry was consonant with federal law. We hold that it was not, and therefore reverse.

The statute here involved, 18 U. S. C. § 3109, deals with the entry of federal officers into a dwelling in terms only in regard to the execution of a search warrant. This Court has held, however, that the validity of such an entry of a federal officer to effect an arrest without a warrant “must be tested by criteria identical with those embodied in” that statute. Miller v. United States, 357 U. S. 301, 306 (1958); Wong Sun v. United States, 371 U. S. 471, 482-484 (1963). We therefore agree with the parties and with the court below that we must look to § 3109 as controlling.

In Miller v. United States, supra, the commonlaw background to § 3109 was extensively examined. The Court there concluded, id., at 313:

“The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, had declared in § 3109 the reverence of the law for the individual’s right of privacy in his house.”

It was also noted, id., at 313, n. 12, that another facet of the rule of announcement was, generally, to safeguard officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there. See also McDonald v. United States, 335 U. S. 451, 460-461 (concurring opinion).

Considering the purposes of § 3109, it would indeed be a “grudging application” to hold, as the Government urges, that the use of “force” is an indispensable element of the statute. To be sure, the statute uses the phrase “break open” and that connotes some use of force. But linguistic analysis seldom is adequate when a statute is designed to incorporate fundamental values and the ongoing development of the common law. Thus, the California Supreme Court has recently interpreted the common-law rule of announcement codified in a state statute identical in relevant terms to § 3109 to apply to an entry by police through a closed but unlocked door. People v. Rosales, 68 Cal. 2d 299, 437 P. 2d 489 (1968). And it has been held that § 3109 applies to entries effected by the use of a passkey, which requires no more force than does the turning of a doorknob. An unannounced intrusion into a dwelling — what § 3109 basically proscribes — is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door. The protection afforded by, and the values inherent in, § 3109 must be “governed by something more than the fortuitous circumstance of an unlocked door.” Keiningham v. United States, 109 U. S. App. D. C. 272, 276, 287 F. 2d 126, 130 (1960).

The Government seeks to invoke an exception to the rule of announcement, contending that the agents’ lack of compliance with the statute is excused because an announcement might have endangered the informant Jones or the officers themselves. See, e. g., Gilbert v. United States, 366 F. 2d 923, 931 (C. A. 9th Cir. 1966), cert, denied, 388 U. S. 922 (1967); cf. Ker v. California, 374 U. S. 23, 39-40 (1963) (opinion of Clark, J.); id., at 47 (opinion of Brennan, J.). However, whether or not “exigent circumstances,” Miller v. United States, supra, at 309, would excuse compliance with § 3109, this record does not reveal any substantial basis for excusing the failure of the agents here to announce their authority and purpose. The agents had no basis for assuming petitioner was armed or might resist arrest, or that Jones was in any danger. Nor, as to the former, did the agents make any independent investigation of petitioner prior to setting the stage for his arrest with the narcotics in his possession.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

Mr. Justice Black dissents.

       The Government contends in this Court that petitioner did not adequately raise at trial the issue of the agents’ manner of entry, and therefore that it did not have sufficient opportunity to indicate the full circumstances surrounding the entry and petitioner’s arrest. However, petitioner’s trial counsel, in the course of objecting, clearly stated there were no facts “sufficient to justify this officer’s breaking into” the apartment, and his objection was truncated by a ruling of the trial judge. In any event, the Government met the issue on the merits in the Court of Appeals, and apparently did not there contend the record was inadequate for its resolution; and the Court of Appeals decided the issue on the merits. In these circumstances, we are justified in likewise doing so.

       “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.”

       See also, e. g., Ng Pui Yu v. United States, 352 F. 2d 626, 631 (C. A. 9th Cir. 1965); Gatlin v. United States, 117 U. S. App. D. C. 123, 130, 326 F. 2d 666, 673 (C. A. D. C. Cir. 1963); United States v. Cruz, 265 F. Supp. 15, 21 (W. D. Tex. 1967).

       See also Ker v. California, 374 U. S. 23, 47-59 (1963) (opinion of BreNNAN, J.).

       While distinctions are obvious, a useful analogy is nonetheless afforded by the common and case law development of the law of burglary: a forcible entry has generally been eliminated as an element of that crime under statutes using the word “break,” or similar words. See R. Perkins, Criminal Law 149-150 (1957); J. Michael & H. Wechsler, Criminal Law and Its Administration 367-382 (1940); Note, A Rationale of the Law of Burglary, 51 Col. L. Rev. 1009, 1012-1015 (1951). Commentators on the law of arrest have viewed the development of that body of law as similar. See EL Voorhees, Law of Arrest §§ 159, 172-173 (1904); Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 798, 806 (1924):
      “What constitutes ‘breaking’ seems to be the same as in burglary: lifting a latch, turning a door knob, unhooking a chain or hasp, removing a prop to, or pushing open, a closed door of entrance to the house, — even a closed screen door ... is a breaking . . . .” (Footnotes omitted.)
      See generally Blakey, The Rule of Announcement and Unlawful Entry, 112 U. Pa. L. Rev. 499 (1964).

       See, e. g., Munoz v. United States, 325 F. 2d 23, 26 (C. A. 9th Cir. 1963); United States v. Sims, 231 F. Supp. 251, 254 (D. C. Md. 1964); cf. People v. Stephens, 249 Cal. App. 2d 113, 57 Cal. Rptr. 66 (1967). See also Ker v. California, 374 U. S., at 38.

       We do not deal here with entries obtained by ruse, which have been viewed as involving no “breaking.” See, e. g., Smith v. United States, 357 F. 2d 486, 488 n. 1 (C. A. 5th Cir. 1966); Leahy v. United States, 272 F. 2d 487, 489 (C. A. 9th Cir. 1959). See also Wilgus, n. 5, supra, at 806.

       Exceptions to any possible constitutional rule relating to announcement and entry have been recognized, see Ker v. California, supra, at 47 (opinion of BreNNAN, J.), and there is little reason why those limited exceptions might not also apply to § 3109, since they existed at common law, of which the statute is a codification. See generally Blakey, n. 5, supra.


author: Per Curiam. Mr. Justice Douglas,

text:
    WATTS et al. v. SEWARD SCHOOL BOARD et al.
    No. 325.
    Argued March 26, 1968.
    Decided June 3, 1968.

      George Kaufmann argued the cause and filed briefs for petitioners.

      Theodore M. Pease, Jr., argued the cause and filed a brief for respondents.
   Per Curiam.

The judgment is vacated and the case is remanded to the Supreme Court of Alaska for further consideration in light of Pickering v. Board of Education of Township High School District 205, Will County, ante, p. 563.

Mr. Justice Douglas,

with whom Mr. Justice Black joins,

would reverse the judgment outright for the reasons stated by him in Pickering v. Board of Education, ante, p. 575.

Mr. Justice White dissents.


author: Per Curiam. Mr. Justice Brennan,

text:
    KAISER STEEL CORP. v. W. S. RANCH CO.
    No. 1328.
    Decided June 3, 1968.
    /. R. Modrall for petitioner.

      William R. Federici for respondent.

      Boston E. Witt, Attorney General, and F. Harlan Flint, Special Assistant Attorney General, filed a brief for the State of New Mexico on the relation of the New Mexico State Engineer, as amicus curiae, in support of the petition.
   Per Curiam.

Respondent brought this diversity suit in the United States District Court for the District of New Mexico, claiming an illegal trespass by petitioner and seeking damages and an injunction. Petitioner admitted the alleged trespass but claimed it was authorized to do this by N. M. Stat. Ann. § 75-1-3 (1953), in order to use water rights it had been granted by the State. Respondent contended that if § 75-1-3 were construed to authorize condemnation of private land to secure water for a private business, the law would violate the New Mexico Constitution, which permits the taking of private property only for “public use.” N. M. Const., Art. II, § 20. The crucial issue thus became the interpretation of the term “public use” in the State Constitution. The District Court held that the property had been taken for a public use, rejecting the suggestion in petitioner’s brief that the action be stayed pending decision of the crucial question by the state courts. The Court of Appeals reversed on the merits, 388 F. 2d 257 (1967), and rejected petitioner’s motion to stay the federal court’s action until the state law issues could be settled in a declaratory judgment suit then pending in the state courts, 388 F. 2d, at 262 (1968) (on petition for rehearing).

The Court of Appeals erred in refusing to stay its hand. The state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources. The issue, moreover, is a truly novel one. The question will eventually have to be resolved by the New Mexico courts, and since a declaratory judgment action is actually pending there, in all likelihood that resolution will be forthcoming soon. Sound judicial administration requires that the parties in this case be given the benefit of the same rule of law which will apply to all other businesses and landowners concerned with the use of this vital state resource.

The writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded with directions that the action be stayed in accordance with the prayer of petitioner. Federal jurisdiction will be retained in the District Court in order to insure a just disposition of this litigation should anything prevent a prompt state court determination.

It is so ordered.

Mr. Justice Brennan,

whom Mr. Justice Douglas and Mr. Justice Marshall join,

concurring.

I concur solely on the ground that this case presents one of the “narrowly limited ‘special circumstances’ ” which justify the invocation of “[t]he judge-made doctrine of abstention,” Zwickler v. Koota, 389 U. S. 241, 248. The “special circumstances,” as the Court states, arise from the fact that “[t]he state law issue which is crucial in this case is one of vital concern in the arid State of New Mexico, where water is one of the most valuable natural resources.” Cf. Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341; Burford v. Sun Oil Co., 319 U. S. 315; see Zwickler v. Koota, supra, at 249, n. 11. I adhere however to my view, expressed in dissent in Louisiana Power & Light Co. v. City of Thibodaux, 360 U. S. 25, 31, that in a diversity case abstention from decision of a state law question is improper in the absence of such “special circumstances.”


author: Per Curiam. Mr. Justice White,

text:
    JOHNSON v. FLORIDA.
    No. 1393,
    Misc.
    Decided June 3, 1968.

      Earl Faircloth, Attorney General of Florida, and Harold Mendelow, Assistant Attorney General, for appellee.
   Per Curiam.

Appellant was charged with violating a Florida vagrancy statute, Fla. Stat. § 856.02, which makes it a misdemeanor to be found “wandering or strolling around from place to place without any lawful purpose or object.”

Officer Havens testified that he and Officer Carani were patrolling the Bird Road area of Dade County at about 4:25 a. m. when they saw appellant seated on a bench at a bus stop. The officers stopped and asked him why he was there. He replied that he was waiting for a bus. Havens told him that the last Bird Road bus had run at 11 p. m. and that buses did not resume service until 7 a. m. Havens then asked him where he had been. He said he had been to a theatre (which was about two miles away) and afterwards had gone to the house of his girl friend, Joyce, who lived near the theatre.

On Havens’ request, appellant supplied identification which showed he was age 18 and lived in that area of the county.

Havens then asked him if he had ever been in trouble with the law. He replied that he was on probation from a breaking and entering charge and had a 10 p. m. curfew. He was then asked to account for his whereabouts from 11 p. m. to 4:30 a. m. He explained that he got out of the movie about 10:30 or 10:45, went to Joyce’s house, and after leaving her place, and reaching the bus stop had waited some three hours for a bus. The officers did not discuss with appellant the means or manner by which he got to the bus stop from the theatre and Joyce’s house; and the record does not supply that information. Appellant apparently had phoned for a cab after waiting on the bench two or three hours for a bus. Havens asked appellant how much money he had on his person. Appellant said he had 700 or 800. Havens told appellant this was not enough cabfare to get to appellant’s residence. It was then that he was arrested.

The area where appellant was arrested is a mixed residential-business area with several stores, including a store, open 24 hours a day, directly across from where appellant sat on the bench. That store was well lighted. Where appellant sat was not lighted. Officer Carani added that there was a cab stand nearby (some 1,200 feet away) but that no cabs were seen in the area by him at the time appellant was interrogated.

Appellant, who waived a trial by jury, moved for directed verdict, arguing there was no proof that he wandered, no proof of absence of lawful purpose and no proof that a bus would not soon have come to the bus stop.

The motion was denied, the defense presented no evidence, appellant was convicted, and he was placed on probation for a year. The Florida Supreme Court affirmed. The case is here by appeal.

The prosecution emphasized that appellant had failed to account for any “lawful purpose” during the time he sat on the bench for some three hours. The burden, however, is on the State to prove that an accused has committed an act bringing him within a criminal statute. The essential ingredients of the crime charged were “wandering or strolling around from place to place without any lawful purpose or object.” The fact that he was on probation with a 10 p. m. curfew and out long after that hour may be held to establish that ingredient of the crime of no “lawful purpose or object.” But he was not wandering, or strolling, only sitting. The bench where he sat was made for sitting and he was using it for that purpose in the precise place where the bench had been placed. And he had sat there for some hours. We therefore conclude that so far as the “wandering or strolling” ingredient of the crime is concerned, the record is lacking in any evidence to support the judgment. In line with Thompson v. Louisville, 362 U. S. 199, and without reaching other constitutional questions that are tendered, we must therefore grant the motion for leave to proceed in forma pauperis and reverse the judgment below.

Reversed.

Mr. Justice Black and Mr. Justice Stewart would dismiss the appeal.

Mr. Justice White,

with whom Mr. Justice Harlan joins, dissenting.

Florida’s courts have obviously interpreted their statute to permit a showing that a defendant was on a park bench at 4:25 a. m. “without any lawful purpose or object” to establish a prima facie case that the defendant was “wandering or strolling around” without lawful purpose. Most inhabitants of park benches reach their bench by wandering or strolling. So interpreting the statute, constitutionally sufficient amounts of evidence were presented.

The Court does not reach the claim appellant makes here, that Florida’s statute offends the Constitution because it is vague. That claim is substantial, and I would note probable jurisdiction and set the case for oral argument.

      The judgment of the Florida Supreme Court from which this appeal is taken was entered October 4, 1967. Appellant’s notice of appeal, filed December 30, 1967, was timely under Rule 11 (1) of the Rules of this Court. The appeal was not docketed until 56 days after the time provided in Rule 13 (1) expired. This defect, however, is not jurisdictional. Pittsburgh Towing Co. v. Mississippi Valley Barge Line Co., 385 U. S. 32.