The Volokh Conspiracy - Why <i>United States v. Di Re</i> Clearly Was <i>Not</i> A Case on the Federal Supervisory Power:

The comment thread in my post on next week's oral argument in Virginia v. Moore led to an interesting exchange about whether the Supreme Court's 1948 decision in United States v. Di Re, 332 U.S. 581 (1948), was a case decided on Fourth Amendment grounds or as an application of the federal supervisory power. Oddly enough, this ends up being an important part of the Moore case. If Di Re was a Fourth Amendment decision, then it largely answers the questions for the Court in Moore; if it wasn't, then Di Re is irrelevant. The comment thread led me to take a closer look at the history and context of Di Re, and that research leads me to conclude with a very high degree of certainty that Di Re was a case on the Fourth Amendment and not about the federal supervisory power. In this post, I want to explain why.

  First, the facts. In this case, an informant told federal investigators that a person named Buttitta would be selling illegal gasoline coupons to a person named Reed at a particular place and time. The federal investigator convinced a local cop to go with him and arrest the two men. When they went to make the arrest, however, there were three men present, not two: Buttitta and Reed were joined by a third man, Di Re. The cop arrested all three, and a search of Di Re yielded the illegal coupons. Di Re was convicted of possession of the coupons. On appeal before the Second Circuit, the case drew one of these remarkably stellar panels of judges that only the Second Circuit could assemble back in those days: the presiding judge was Learned Hand, and he was joined by two former Deans of Yale Law School, Thomas Swan and Charles Clark.

  Judge Hand wrote the majority opinion for the Court of Appeals. See United States v. Di Re, 159 F.2d 818 (2d Cir. 1947). Judge Hand's majority opinion states at the outset that the only question in the case is the Fourth Amendment: "The only question necessary to discuss upon this appeal is whether the documents upon which his conviction was based, were obtained in violation of the Fourth Amendment." Specifically, "If the arrest of DiRe was lawful, the search of his person was lawful, and the conviction must be affirmed; if the arrest was not lawful, the search was unlawful, and the conviction cannot stand."

  The parties agreed that the lawfulness of the arrest was governed by the New York arrest statute, Section 177 of the New York Code, which restated the common law rule for powers of arrest:

A peace officer may, without a warrant, arrest a person,
1. For a crime, committed or attempted in his presence;
2. When the person arrested has committed a felony, although not in his presence;
3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.

Judge Hand thus framed the question to be decided as follows:

We shall assume, arguendo, that Gross had authority under Sec. 177 of the New York Code of Criminal Procedure to arrest Buttitta and Reed, although the crime was not against the State of New York; We shall similarly assume that the federal law determines whether the crime was a felony within the meaning of Sec. 177, and that because a conspiracy is a felony under federal law, Gross's authority was measured by Sec. 177(2) and gave him power to arrest Buttitta and Reed. By a parity of reasoning his authority to arrest DiRe must rest upon subdivision three of Sec. 177, that is, Gross must have had reasonable ground for thinking that DiRe was a party to the conspiracy of Buttitta and Reed, which was in process of execution before his eyes.

  Judge Hand then parsed the facts of the case and concluded that there were no reasonable grounds to conclude that Di Re was a co-conspirator of Buttitta or Reed. Di Re was just a guy in a car; there was no reason to think he was in cahoots with the other two even thought it later turned out that he was.

  Judge Clark dissented. Clark agreed with how Judge Hand had framed the issue: "The issue raised concerns only the lawfulness of the arrest, for, that being established, the search follows as an incident thereto. See authorities cited by Frankfurter, J., in Davis v. United States, 66 S.Ct. 1256, 1269." He also agreed that the question was whether the arrest was lawful under "the general and traditional rule of arrest without a warrant by a peace officer . . . aptly stated in the N.Y. Code of Criminal Procedure, Sec. 177." But Judge Clark argued that Judge Hand misapplied the standard. Hand was requiring too much cause; a common sense view of the facts was that the officers had reasonable grounds to think Di Re was also involved.

  The Supreme Court granted cert, and the SG's brief made two arguments in favor of a reversal. The main argument essentially repeated Judge Clark's argument that under a common sense view of the facts, an officer had reasonable grounds to think that Di Re was in cahoots with the other two guys in the car. The brief was clear that this was a question of the lawfulness of the arrest under New York Code Section 177, which would make the arrest lawful and thus the search incident to a "lawful" arrest:

For the rest of this post, click here.

	[Orin Kerr, January 10, 2008 at 11:44pm] Trackbacks Why United States v. Di Re Clearly Was Not A Case on the Federal Supervisory Power: The comment thread in my post on next week's oral argument in Virginia v. Moore led to an interesting exchange about whether the Supreme Court's 1948 decision in United States v. Di Re, 332 U.S. 581 (1948), was a case decided on Fourth Amendment grounds or as an application of the federal supervisory power. Oddly enough, this ends up being an important part of the Moore case. If Di Re was a Fourth Amendment decision, then it largely answers the questions for the Court in Moore; if it wasn't, then Di Re is irrelevant. The comment thread led me to take a closer look at the history and context of Di Re, and that research leads me to conclude with a very high degree of certainty that Di Re was a case on the Fourth Amendment and not about the federal supervisory power. In this post, I want to explain why. First, the facts. In this case, an informant told federal investigators that a person named Buttitta would be selling illegal gasoline coupons to a person named Reed at a particular place and time. The federal investigator convinced a local cop to go with him and arrest the two men. When they went to make the arrest, however, there were three men present, not two: Buttitta and Reed were joined by a third man, Di Re. The cop arrested all three, and a search of Di Re yielded the illegal coupons. Di Re was convicted of possession of the coupons. On appeal before the Second Circuit, the case drew one of these remarkably stellar panels of judges that only the Second Circuit could assemble back in those days: the presiding judge was Learned Hand, and he was joined by two former Deans of Yale Law School, Thomas Swan and Charles Clark. Judge Hand wrote the majority opinion for the Court of Appeals. See United States v. Di Re, 159 F.2d 818 (2d Cir. 1947). Judge Hand's majority opinion states at the outset that the only question in the case is the Fourth Amendment: "The only question necessary to discuss upon this appeal is whether the documents upon which his conviction was based, were obtained in violation of the Fourth Amendment." Specifically, "If the arrest of DiRe was lawful, the search of his person was lawful, and the conviction must be affirmed; if the arrest was not lawful, the search was unlawful, and the conviction cannot stand." The parties agreed that the lawfulness of the arrest was governed by the New York arrest statute, Section 177 of the New York Code, which restated the common law rule for powers of arrest: A peace officer may, without a warrant, arrest a person, 1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it. Judge Hand thus framed the question to be decided as follows: We shall assume, arguendo, that Gross had authority under Sec. 177 of the New York Code of Criminal Procedure to arrest Buttitta and Reed, although the crime was not against the State of New York; We shall similarly assume that the federal law determines whether the crime was a felony within the meaning of Sec. 177, and that because a conspiracy is a felony under federal law, Gross's authority was measured by Sec. 177(2) and gave him power to arrest Buttitta and Reed. By a parity of reasoning his authority to arrest DiRe must rest upon subdivision three of Sec. 177, that is, Gross must have had reasonable ground for thinking that DiRe was a party to the conspiracy of Buttitta and Reed, which was in process of execution before his eyes. Judge Hand then parsed the facts of the case and concluded that there were no reasonable grounds to conclude that Di Re was a co-conspirator of Buttitta or Reed. Di Re was just a guy in a car; there was no reason to think he was in cahoots with the other two even thought it later turned out that he was. Judge Clark dissented. Clark agreed with how Judge Hand had framed the issue: "The issue raised concerns only the lawfulness of the arrest, for, that being established, the search follows as an incident thereto. See authorities cited by Frankfurter, J., in Davis v. United States, 66 S.Ct. 1256, 1269." He also agreed that the question was whether the arrest was lawful under "the general and traditional rule of arrest without a warrant by a peace officer . . . aptly stated in the N.Y. Code of Criminal Procedure, Sec. 177." But Judge Clark argued that Judge Hand misapplied the standard. Hand was requiring too much cause; a common sense view of the facts was that the officers had reasonable grounds to think Di Re was also involved. The Supreme Court granted cert, and the SG's brief made two arguments in favor of a reversal. The main argument essentially repeated Judge Clark's argument that under a common sense view of the facts, an officer had reasonable grounds to think that Di Re was in cahoots with the other two guys in the car. The brief was clear that this was a question of the lawfulness of the arrest under New York Code Section 177, which would make the arrest lawful and thus the search incident to a "lawful" arrest: For the rest of this post, click here. Given a lawful arrest, it is undisputed that the body and clothing of the arrested person may be subjected to search; this has been many times held by this Court, nor has the principle been disputed in any of the recent cases dealing with the precise scope of the Fourth Amendment's interdiction of "unreasonable searches and seizures." Weeks v. United States, 232 U. S. 383, 392; Carroll v. United States, 267 U. S. 132, 158; Agnello v. United States, 269 U. S. 20, 30; Harris v. United States, No. 34, Oct. T. 1946, decided May 5, 1947, pp. 5-6 of slip opinion; see People v. Chiagles, 237 N. Y. 193 ( per Cardozo, J.); compare Franfurter, J., dissenting in Davis v. United States, 328 U. S. 582, 609-610; Jackson, J., dissenting in Harris v. United States, supra, p. 2 of slip opinion; Murphy, J., dissenting in Harris v. United States, supra, p. 4 of slip opinion. The inquiry here, therefore--and the only inquiry--is whether respondent was lawfully arrested. We agree with Judge Clark below that he was. According to the SG's brief, "The fundamental error in the majority opinion below is that it tests the validity of the arrest, not by standards of reasonable deduction, but by standards of substantive guilt." Judge Hand had just set the bar too high. The arresting officer only indeed "reasonable grounds" to satisfy the state statute and make the arrest lawful under state law, and he had it. The SG's brief then made a new argument, although it was made only briefly and reads like an afterthought. The brief noted that under the automobile exception case, Carroll v. United States, 267 U.S. 132 (1925), probable cause to search a car justified a search of the entire car. The SG reasoned that a right to search the car implied a right to search recent occupants of the car; because Di Re had been in the car, the automobile search justified a search of the car. Di Re's brief matched the SG's brief on both points: It argued that the automobile case couldn't be so extended, and that (following Judge Hand's analysis) the arrest had violated the New York statute because no reasonable grounds existed to think Di Re was guilty of a felony. The case was argued in October 1947, with Frederick "Fritz" Wiener arguing the case for the United States. At oral argument, the Justices seemed to agreed that the arrest had violated New York state law. However, the Justices focused on a different part of the New York arrest law. In particular, Justice Frankfurter asked Wiener why the arrest didn't plainly violate New York Code Section 180, which required the arresting officer to state the reason for the arrest and state his authority to make the arrest. There wasn't a record on this and it hadn't come up before, but the several Justices (including Frankfurter) focused on it heavily. Following the oral argument, the SG's Office filed a short supplemental memo in response to Justice Frankfurter's questions. The SG's supplemental memo was divided into two parts. The first part reasoned rather lamely that Section 180 must not be an issue, mostly because it didn't really occur to anyone below. The second part of the supplemental memo threw a 'Hail Mary' pass. Realizing that they were going down in flames with the state law argument, the SG argued that the lawfulness of the arrest should be a question of federal law instead of state law. Specifically, the SG's memo argued that the lawfulness of federal arrests should be a question of federal common law. The memo then argued that there wasn't any federal common law reason to say that the arrest in these federal arrests shouldn't be allowed. Okay, let's finally return to the opinion Justice Jackson wrote for the majority in Di Re. Justice Jackson starts off rejecting the expansion of the Carroll doctrine. Jackson concludes: "We see no ground for expanding the ruling in the Carroll case to justify this arrest and search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." Jackson then turns to the search incident to a lawful arrest doctrine: "The other ground on which the Government defended the search of Di Re, and the only one on which it relied at the trial, is that the officers justifiably arrested him and that this conferred a right to search his person. If he was lawfully arrested, it is not questioned that the ensuing search was permissible. Hence we must examine the circumstances and the law of arrest." Jackson states that some of the Justices were persuaded that the arrest was unlawful — and the search therefore unconstitutional — on Section 180 notice grounds alone. But Jackson concludes that it would be too complicated to base the Court's decision on that ground given that it wasn't raised below: Inasmuch as the issue would lead to exploration of the law as to waiver when the defense was not raised in either court below, or indeed by the petition here, and as to applicability of he statute if, as the Government contends, lack of express declaration was unnecessary because circumstances supplied the required information, we do not undertake to determine on this record whether Di Re's arrest satisfied this provision of the New York law. Jackson then had to look at whether the lawfulness of the arrest was to be governed by Section 177, as the parties and lower court judges had assumed, or whether there was a federal common law of arrest that determined "lawfulness" for purposes of the search incident to arrest doctrine, as the SG's supplemental memo had argued. This is the key section of the opinion that some (including Professor LaFave) have incorrectly read as relying on the supervisory power: We believe, however, that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be 'agreeably to the usual mode of process against offenders in such State.' There is no reason to believe that state law is not an equally appropriate standard by which to test arrests without warrant, except in those cases where Congress has enacted a federal rule. Indeed the enactment of a federal rule in some specific cases seems to imply the absence of any general federal law of arrest. It's critical to understand that this passage was a direct response to the SG's supplemental memorandum. That memorandum argued that federal arrests were governed by a federal common law standard precisely because the government realized at oral argument that the Justices were going to rule against the U.S. if they looked to state arrest law to determine the "lawfulness" of a search incident to a "lawful" arrest. Until that supplemental memo was filed, everyone involved in the case — Judges Hand, Swan, and Chase; the parties; and all nine Justices — were of the understanding that the lawfulness of the arrest for the purposes of the "search incident to arrest" doctrine was a question of state law. And the supplemental brief wasn't arguing any point about the federal supervisory power, which after all was only more restrictive than the Fourth Amendment and would have been bizarre for the government to raise. Rather, the SG's office introduced this notion of the federal common law of arrest to try to get around the restrictions of New York state arrest law and to find an easier standard for the government to satisfy. In sum, I think a close look at the history and briefing in the Di Re case leaves no doubt that the court was applying the Fourth Amendment and not the federal supervisory power. You need to dig into the case to see it, but I think once you do that digging you understand exactly what Justice Jackson was doing. Justice Jackson was doing exactly what Learned Hand had done in the Second Circuit — finding and applying the law governing the statutory or common law "lawfulness" of the arrest, as it answered the Fourth Amendment question of whether the following search was incident to a lawful arrest. Related Posts (on one page): Virginia v. Moore and the Changing Role of the Fourth Amendment: Supreme Court Hands Down Virginia v. Moore: "Catch and Release" Tactics and Virginia v. Moore: Oral Argument in Virginia v. Moore: Why United States v. Di Re Clearly Was Not A Case on the Federal Supervisory Power: Why the Defendant Should Win in Virginia v. Moore: