Ker v. California
Decided June 10, 1963, 374 U.S. 23


A. Issues Discussed: Fourth Amendment, 14th Amendment, criminal Justice, search and seizure

B. Legal Question Presented:

Does an arrest and discovery of evidence during an unwarranted search lack the probable cause
needed to become admissible at trial?

A. Background:

After witnessing petitioner George Ker meeting a suspected marijuana dealer, California police offers entered Ker's residence without consent or a warrant, by using a passkey supplied by the building manager. The officers arrested Ker and his wife, second petitioner Diane Ker, on suspicion of violating the State Narcotic Law. A subsequent warrantless search of the apartment and the petitioners' cars surfaced marijuana packages and paraphernalia, which were seized and later admitted as evidence against the petitioners. The couple was convicted in the state's Superior Court, and both the California District Court of Appeals and the California Supreme Court upheld the conviction, ruling that the evidence was not seized in the course of an unlawful search. The US Supreme Court granted Certiorari to the lower courts.
B. Counsel of Record:
Opposing Side
Robert W. Stanley argued the cause and filed a brief for petitioners.

Gordon Ringer, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were Stanley Mosk, Attorney General, and William E. James, Assistant Attorney General.
C. The Arguments:
Opposing Side
The search was unlawful and unreasonable in that the officers could practicably have obtained a search warrant.

The discovery of the marijuana cannot be justified since the arrest was merely used as the pretext for a search without warrant.
Sufficient probable cause for the arrest of Petitioner George Kerr had developed through witnessing Petitioner's actions, and combining officer information regarding his character.

The officers had reason to act quickly with the likelihood the marijuana would be redistributed before a warrant could be obtained.
Opposing Side
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. No amici curiae briefs were filed on behalf of Respondent.

"The evidence at issue, in order to be admissible, must be the product of a search incident to a lawful arrest, since the officers had no search warrant. The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed...

The information within the knowledge of the officers at the time they arrived at the Kers' apartment, as California's courts specifically found, clearly furnished grounds for a reasonable belief that petitioner George Ker had committed and was committing the offense of possession of marijuana...

Probable cause for the arrest of petitioner Diane Ker, while not present at the time the officers entered the apartment to arrest her husband, was nevertheless present at the time of her arrest. Upon their entry and announcement of their identity, the officers were met not only by George Ker but also by Diane Ker, who was emerging from the kitchen. Officer Berman immediately walked to the doorway from which she emerged and, without entering, observed the brick-shaped package of marijuana in plain view. Even assuming that her presence in... a small room with the contraband in a prominent position on the kitchen sink would not alone establish a reasonable ground for the officers' belief that she was in joint possession with her husband, that fact was accompanied by the officers' information that Ker had been using his apartment as a base of operations for his narcotics activities. Therefore, we cannot say that at the time of her arrest there were not sufficient grounds for a reasonable belief that Diane Ker, as well as her husband, was committing the offense of possession of marijuana in the presence of the officers...

Since the petitioners' federal constitutional protection from unreasonable searches and seizures by police officers is here to be determined by whether the search was incident to a lawful arrest, we are warranted in examining that arrest to determine whether, notwithstanding its legality under state law, the method of entering the home may offend federal constitutional standards of reasonableness and therefore vitiate the legality of an accompanying search. We find no such offensiveness on the facts here. Assuming that the officers' entry by use of a key obtained from the manager is the legal equivalent of a 'breaking,' it has been recognized from the early common law that such breaking is permissible in executing an arrest under certain circumstances...

Having held the petitioners' arrests lawful, it remains only to consider whether the search which produced the evidence leading to their convictions was lawful as incident to those arrests. The doctrine that a search without warrant may be lawfully conducted if incident to a lawful arrest has long been recognized as consistent with the Fourth Amendment's protection against unreasonable searches and seizures...

Petitioners contend that the search was unreasonable in that the officers could practicably have obtained a search warrant. The practicability of obtaining a warrant is not the controlling factor when a search is sought to be justified as incident to arrest... but we need not rest the validity of the search here... since we agree with the California court that time clearly was of the essence...The officers had reason to act quickly because of Ker's furtive conduct and the likelihood that the marijuana would be distributed or hidden before a warrant could be obtained at that time of night...

The petitioners' only remaining contention is that the discovery of the brick of marijuana cannot be justified as incidental to arrest since it preceded the arrest. This contention is of course contrary to George Ker's testimony, but we reject it in any event. While an arrest may not be used merely as the pretext for a search without warrant, the California court specifically found and the record supports both that the officers entered the apartment for the purpose of arresting George Ker and that they had probable cause to make that arrest prior to the entry... We thus agree with the California court's holding that the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what was placed before him in full view.

For these reasons the judgment of the California District Court of Appeal is Affirmed."
Justice Vote: 4 Pro vs. 5 Con
  • Clark, T. Con (Wrote majority opinion)
  • Black, H. Con (Joined majority opinion)
  • Stewart, P. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Harlan, J. Con (Wrote concurring opinion)
  • Brennan, W. Pro (Wrote dissenting opinion, joined majority in part)
  • Warren, E. Pro (Joined minority opinion)
  • Douglass, W. Pro (Joined minority opinion)
  • Goldberg, A. Pro (Joined minority opinion)

    The ACLU filed as amicus urging reversal; the Supreme Court affirmed the ruling of the state's lower courts in a 5-4 vote, giving the ACLU an apparent loss.