Walder v. United States

Opinion of the Court.

No. 121. Argued November 30, 1953.-Decided February 1, 1954.

Because heroin had been obtained from petitioner through unlawful search and seizure, its use in evidence was suppressed on peti- tioner's motion; and an indictment against him for its possession was dismissed on the Government's motion.

In his subsequent trial for other illicit transactions in narcotics, petitioner testified on direct examination that he had never purchased, sold or pos- sessed any narcotics.

In order to impeach this testimony, the Government introduced the testimony of an officer who had par- ticipated in the unlawful search and seizure of the heroin involved in the earlier proceeding and the chemist who had analyzed it.

Held: Petitioner's assertion on- direct examination that he had never possessed any narcotics opened the door, solely for the pur- pose of attacking petitioner's credibility, to evidence of the heroin unlawfully seized in connection with the earlier proceeding. Weeks

v. United States, 232 U. S. 383, and Agnello v. United States, 269

U. S. 20, distinguished. Pp. 62-66.

201 F. 2d 715, affirmed.

Paul A. Porter, acting under appointment by the Court, argued the cause and filed a brief for petitioner.

Robert S. Erdahl argued the cause for the United States. With him on the brief were Acting Solicitor General Stern, As8istant Attorney General Olney and Edward S. Szukelewicz.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

In May 1950, petitioner was indicted in the United States District Court for the Western District of Missouri for purchasing and possessing one grain of heroin.

Claiming that the heroin capsule had been obtained through an unlawful search ar i seizure, petitioner moved

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Opinion of the Court.

to suppress it. The motion was granted, and shortly thereafter, on the Government's motion, the case against petitioner was dismissed.

In January of 1952, petitioner was again indicted, this time for four other illicit transactions in narcotics. The Government's case consisted principally of the testimony of two drug addicts who claimed to have procured the illicit stuff from petitioner under the direction of federal agents. The only wftiess for the defense was the de- fendant himself, petitioner here. He denied any nar- cotics dealings with the two Government informers and attributed the testimony against him to personal hostility.

Early on his direct examination petitioner testified as

"Q. Now, first, Mr. Walder, before we go further in your testimony, I want to you [sic] tell the Court and jury whether, not referring to these informers in this case, but whether you have ever sold any narcotics to anyone,

"A. I have never sold any narcotics to anyone in my life.

"Q. Have you ever -had any narcotics in your possession, other than what may have been given to you by a physician for an ailment?

"A. No. "Q. Now, I will ask you one more thing. Have you ever handed or given any narcotics to anyone as a gift or in any other manner without the receipt of any money or any other compensation?

"A. I have not. "Q. Have you ever even acted as, say, have you acted as a conduit for the purpose of handling what you knew to be a narcotic from, one -person to another?

"A. No, sir."

Opinion of the Court.

On cross-examination, in response to a question by Gov- ernment counsel making reference to this direct testimony, petitioner reiterated his assertion that he had never pur- chased, sold or possessed any narcotics. Over the de- fendant's objection, the Government then questioned him about the heroin capsule unlawfully seized from his home in his presence back in February 1950. The defendant stoutly denied that any narcotics were taken from him at that time.' The Government then put on the stand one of the officers who had participated in the unlawful search and seizure and also the chemist who had analyzed the heroin capsule there seized. The trial judge admitted this evidence, but carefully charged the jury that it was not to be used to determine whether the defendant had com- nitted the crimes here charged, but solely for the purpose of impeaching the defendant's credibility. The defend- ant was convicted, and the Court of Appeals for the Eighth Circuit affirmed, one judge dissenting. 201 F. 2d

715. The question which divided that court, and the

sole issue here, is whether the defendant's assertion on direct examination that he had never possessed any nar- cotics opened the door, solely for the purpose of attacking the defendant's credibility, to evidence of the heroin un- lawfully seized in connection with the earlier proceeding.

Because this question presents a novel aspect of the scope of the doctrine of Weeks v. United States, 232

U. S. 383, we granted certiorari. 345 U. S. 992.

The Government cannot violate the Fourth Amend- ment 2-in the only way in which the Government can do anything, namely through its agents-and use the fruits

1 This denial squarely contradicted the affidavit filed by the de-

fendant it the earlier proceeding, in connection with his motion under to suppress the evidence unlawfully seized.

Rule 41 (e)

2 "The right of the ppople to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . .. .

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Opinion of the Court.

of such unlawful conduct to secure a conviction. Weeks v.

United States, supra. Nor can the Government make indirect use of such -evidence for its case, Silverthorne Lumber Co. v. United States, 251 U. S. 385, or support a conviction on evidence obtained through leads from the unlawfully obtained evidence, cf. Nardone v. United States, 308 U. S. 338. All these methods are outlawed, and convictions obtained by means of them are invali- dated, because they encourage the kind of society that is obnoxious to free men.

It is one thing to say that the Government cannot make It is an affirmative use of evidence unlawfully obtained. quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and pro- vide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.

Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics.

Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him.

He must be free to deny all the elements of the case against him without thereby giving leave to the Govern- inent to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. 1;eyond that, however, there is hardly justifica- tion for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility.

3 Cf. Michelson v. United States, 335 U. S. 469, 479: "The price a defendant must pay foT attempting to prove his good name is to throw open the .ntire subject which th; law has kept closed for his

Opinion of the Court.

The situation here involved is to be sharply contrasted with that presented by Agnello v. United States, 269 U. S.

20. There the Government, after having failed in its

efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by ask- ing the accused the broad question "Did you ever see narcotics before?"' After eliciting the expected denial, it sought to introduce evidence of narcotics located in the defendant's home by means of an unlawful search and seizure, in order to discredit the defendant.

In holding that the Government could no more work in this evi- dence on cross-examination than it could in its case in chief, the Court foreshadowed, perhaps unwittingly, the

"And the contention that the evidence of the search and seizure was admissible in rebuttal is without merit.

In his direct examination, Agnello was not asked and did not testify concerning the can of co- caine.

In cross-examination, in answer to a ques- tion permitted over his objection, he said he had never seen it. He did nothing to waive his consti- tutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search ... "

269 U. S., at 35.

The judgment is Affirmed.

MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent.

benefit and shields him."

to make himself vulnerable where the law otherwise

The underlying rationale of the Michelson case also disposes of the evidentiary question raised by petitioner, to wit, "whether defendant's actual guilt under a former indictment which was dis- missed may be proved by extrinsic evidence introduced to impeach him in a prosecution for a subsequent offense."

4Transcript of Record, p. 476, Agnello v. United States, 269