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: