Police developed a lead near the scene of a robbery which ultimately led them to a hotel where, without a warrant, they searched petitioner's room in his absence, having been given access thereto by a hotel clerk. There they found articles like those associated with the crime by an eyewitness. Petitioner was arrested two days later in another State and following a trial in which the articles were used as evidence was convicted. Held:
William H. Dempsey, Jr., by appointment of the Court, 375 U.S. 805 , argued the cause and filed briefs for petitioner.
Arlo E. Smith, Chief Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Stanley Mosk, Attorney General of California, and Albert W. Harris, Jr. and Michael J. Phelan, Deputy Attorneys General.
A. L. Wirin, Fred Okrand and Paul Cooksey filed a brief for the American Civil Liberties Union of Southern California, as amicus curiae, urging reversal. [376 U.S. 483, 484]
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was convicted of armed robbery after a jury trial in the Superior Court of Los Angeles County, California. At the trial several articles which had been found by police officers in a search of the petitioner's hotel room during his absence were admitted into evidence over his objection. A District Court of Appeal of California affirmed the conviction, 1 and the Supreme Court of California denied further review. 2 We granted certiorari, limiting review "to the question of whether evidence was admitted which had been obtained by an unlawful search and seizure." 374 U.S. 826 . For the reasons which follow, we conclude that the petitioner's conviction must be set aside.
The essential facts are not in dispute. On the night of October 25, 1960, the Budget Town Food Market in Monrovia, California, was robbed by two men, one of whom was described by eyewitnesses as carrying a gun and wearing horn-rimmed glasses and a grey jacket. Soon after the robbery a checkbook belonging to the petitioner was found in an adjacent parking lot and turned over to the police. Two of the stubs in the checkbook indicated that checks had been drawn to the order of the Mayfair Hotel in Pomona, California. Pursuing this lead, the officers learned from the Police Department of Pomona that the petitioner had a previous criminal record, and they obtained from the Pomona police a photograph of the petitioner. They showed the photograph to the two eyewitnesses to the robbery, who both stated that the picture looked like the man who had carried the gun. On the basis of this information the officers went to the Mayfair Hotel in Pomona at about 10 [376 U.S. 483, 485] o'clock on the night of October 27. They had neither search nor arrest warrants. There then transpired the following events, as later recounted by one of the officers:
The search of the petitioner's room by the police officers was conducted without a warrant of any kind, and it therefore "can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. Jones v. United States, 357 U.S. 493, 499 ; United States v. Jeffers, 342 U.S. 48, 51 ." Rios v. United States, 364 U.S. 253, 261 . The District Court of Appeal thought the search was justified as an incident to a lawful arrest. 3 But a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Agnello v. United States, 269 U.S. 20 . 4 [376 U.S. 483, 487] Whatever room for leeway there may be in these concepts, 5 it is clear that the search of the petitioner's hotel room in Pomona, California, on October 27 was not incident to his arrest in Las Vegas, Nevada, on October 29. The search was completely unrelated to the arrest, both as to time and as to place. See Preston v. United States, decided this day, ante, p. 364.
In this Court the respondent has recognized that the reasoning of the California District Court of Appeal cannot be reconciled with our decision in Agnello, nor, indeed, with the most recent California decisions. 6 Accordingly, the respondent has made no argument that the search can be justified as an incident to the petitioner's arrest. Instead, the argument is made that the search of the hotel room, although conducted without the petitioner's consent, was lawful because it was conducted [376 U.S. 483, 488] with the consent of the hotel clerk. We find this argument unpersuasive.
Even if it be assumed that a state law which gave a hotel proprietor blanket authority to authorize the police to search the rooms of the hotel's guests could survive constitutional challenge, there is no intimation in the California cases cited by the respondent that California has any such law. 7 Nor is there any substance to the claim that the search was reasonable because the police, relying upon the night clerk's expressions of consent, had a reasonable basis for the belief that the clerk had authority to consent to the search. Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of "apparent authority." As this Court has said,
At least twice this Court has explicitly refused to permit an otherwise unlawful police search of a hotel room to rest upon consent of the hotel proprietor. Lustig v. United States, 338 U.S. 74 ; United States v. Jeffers, 342 U.S. 48 . In Lustig the manager of a hotel allowed police to enter and search a room without a warrant in the occupant's absence, and the search was held unconstitutional. In Jeffers the assistant manager allowed a similar search, and that search was likewise held unconstitutional.
It is true, as was said in Jeffers, that when a person engages a hotel room he undoubtedly gives "implied or express permission" to "such persons as maids, janitors or repairmen" to enter his room "in the performance of their duties." 342 U.S., at 51 . But the conduct of the night clerk and the police in the present case was of an entirely different order. In a closely analogous situation the Court has held that a search by police officers of a house occupied by a tenant invaded the tenant's constitutional right, even though the search was authorized by the owner of the house, who presumably had not only apparent but actual authority to enter the house for some purposes, such as to "view waste." Chapman v. United States, 365 U.S. 610 . The Court pointed out that the officers' purpose in entering was not to view waste but to search for distilling equipment, and concluded that to uphold such a search without a warrant would leave [376 U.S. 483, 490] tenants' homes secure only in the discretion of their landlords.
No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451 , a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10 . That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful. Since evidence obtained through the search was admitted at the trial, the judgment must be reversed. Mapp v. Ohio, 367 U.S. 643 . 8
[ Footnote 2 ] 205 Cal. App. 2d, at 116.
[ Footnote 3 ] The court reasoned that the officers had probable cause to arrest the petitioner prior to their entry into the hotel room; that they were not obliged to accept as true the night clerk's statement that the petitioner was not in his room; that "it may be reasonably inferred that they entered his room for the purpose of making an arrest," that their observation of the glasses in plain sight reasonably led them to a further search; and that in the circumstances the arrest and the search and seizure were "part of the same transaction." 205 Cal. App. 2d 108, 113, 22 Cal. Rptr. 718, 722.
[ Footnote 4 ] "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape [376 U.S. 483, 487] from custody, is not to be doubted. See Carroll v. United States. 267 U.S. 132, 158 ; Weeks v. United States, 232 U.S. 383, 392 . . . . But the right does not extend to other places." Id., at 30. See also Ker v. California, 374 U.S. 23, 42 , n. 13; Lustig v. United States, 338 U.S. 74, 79 -80.
[ Footnote 5 ] Although some members of this Court have expressed the view that the statement in Agnello defining the permissible bounds of a search incident to arrest went too far, see, e. g., Harris v. United States, 331 U.S. 145, 155 , 183, 195 (dissenting opinions); United States v. Rabinowitz, 339 U.S. 56, 68 (dissenting opinion), the Agnello holding as to what may not be searched - a house substantially removed geographically from the place of arrest at a time not substantially contemporaneous with the arrest - has never been questioned in this Court.
[ Footnote 6 ] "[T]he search cannot be justified as incident to the arrest `for it was at a distance from the place thereof and was not contemporaneous therewith.' (Castaneda v. Superior Court, 59 A. C. 456, 459, 30 Cal. Rptr. 1, 3, 380 P.2d 641, 643; Tompkins v. Superior Court, 59 A. C. 75, 77, 27 Cal. Rptr. 889, 378 P.2d 113; People v. Gorg, 45 Cal. 2d 776, 781, 291 P.2d 469.)" People v. King, 60 Cal. 2d 308, 311, 32 Cal. Rptr. 825, 826, 384 P.2d 153, 155.
[ Footnote 7 ] See Roberts v. Casey, 36 Cal. App. 2d Supp. 767, 93 P.2d 654; Fox v. Windemere Hotel Apt. Co., 30 Cal. App. 162, 157 P. 820; People v. Vaughan, 65 Cal. App. 2d Supp. 844; 150 P.2d 964. "The mere fact that a person is a hotel manager does not import an authority to permit the police to enter and search the rooms of her guests." People v. Burke, 208 Cal. App. 2d 149, 160, 24 Cal. Rptr. 912, 919.
[ Footnote 8 ] The respondent has argued that the case should be remanded to let the California District Court of Appeal decide whether the admission of this evidence was harmless error. But the conviction depended in large part upon the jury's resolution of the question of the credibility of witnesses, and that determination must almost certainly have been influenced by the incriminating nature of the physical evidence illegally seized and erroneously admitted. There is thus at least "a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86 .
MR. JUSTICE HARLAN, concurring in part and dissenting in part.
I entirely agree with the Court's opinion, except as to its disposition of the case. I would remand the case to the California District Court of Appeal so that it may consider whether or not admission of the illegally seized evidence was harmless error. Fahy v. Connecticut, 375 U.S. 85 , does not require or justify the course which the Court takes. In Fahy, Connecticut at least had had the opportunity to decide the question of harmless error with respect to the illegally seized evidence there involved; [376 U.S. 483, 491] here California has had no such opportunity. * For this Court to decide that question as an original matter is, in my opinion, incompatible with proper federal-state relations.
Accordingly, I would vacate the judgment below and remand the case to the California courts for further appropriate proceedings.
[ Footnote * ] The evidence against the accused included a confession of the crime charged. This Court refused to review the claim, contained in the petition for certiorari, that this confession had been involuntarily made. 374 U.S. 826 , ante, p. 484. [376 U.S. 483, 492]