Davis v. Prince Edward County, VA School Board Brief for Appellees in Reply to Supplemental Brief for the United States on Reargument

    In th e

Intfrfc (Emtrt at Ap£n?alH
F or t h e  F ourth  Circu it  

No. 10,384

S am u e l  J am es L ankford , et al..
Appellants,

B ernard J . S ch m id t ,
Appellee.

appeal from th e  u nited  states district court 
FOR THE DISTRICT OF MARYLAND

APPELLANTS’ BRIEF

J ack  Greenberg 
J am es M. N abrit , III 
M elvyn  Z arr 
M ich ael  M eltsner

10 Columbus Circle
New York, New York 10019

J u an ita  J ackson  M itch ell  
1239 Druid Hill Avenue 
Baltimore, Maryland

T u cker  R. H earing

627 Aisquith Street 
Baltimore, Maryland

W . A. C. H u g h es , J r .
1803 Pennsylvania Avenue 
Baltimore, Maryland

Attorneys for Appellants



I N D E X

Statement of the Case ....................................................... 1

Questions Presented .... -........................... ......... -..............  4

Statement of Facts ............................................................  4

PAGE

A r g u m e n t ............................................................................................ 1°

I. The Fourth Amendment requires that police o f­
ficers obtain search warrants before entering 
and searching private premises to attempt to 
execute an arrest warrant, in the absence of 
consent or exceptional circumstances ...............  18

II. Assuming arguendo that the police are not re­
quired to obtain search warrants in the circum­
stances discussed in Argument I, the Court 
nevertheless erred in refusing to enjoin the 
police from continuing the practice of search­
ing homes on the basis of anonymous tips and 
on mere suspicion ................................................... 45

C onclusion  .......................................................................................  50

T able of C ases

Agnello v. United States, 269 U. S. 20 (1925) ..... ..... 19,25
Aguilar v. Texas, 378 U. S. 108 (1964) ............ ......... -30,46
Alexander v. Hillman, 296 U. S. 222 ............... —- ......  41
Amos v. United States, 255 U. S. 313 (1921) ............. . 25
Anderson v. Albany, 321 F. 2d 649 (5th Cir. 1963) .... 36

Baggett v. Bullitt, 377 U. S. 360 ...............................—- 41
Bailey v. Patterson, 323 F. 2d 201 (5th Cir. 1963) ....36, 48



11

Baker v. Carr, 369 U. S. 187 ..........................................  36
Bell v. Hood, 327 U. S. 678 (1946) ..............................  35
Boyd v. United States, 116 U. S. 616 (1886) .......21,22,23
Brinegar v. United States, 338 U. S. 160 __________ 38, 40
Buckner v. County School Board of Greene County,

Ya., 332 F. 2d 452 (4th Cir. 1964) ......... ........ ........  48

Carroll v. United States, 267 U. S. 132 (1925) ______ 25
Chapman v. United States, 365 U. S. 610 (1961) ____ 26
Chappell v. United States, 342 F. 2d 935 (D. C. Cir.

1965) ....... ..................... ............... ....... ......... ...................  31
Clemons v. Board of Education of Hillsboro, 228 F. 2d

853 (6th Cir. 1956) ........ ............. ........ .......................  48
Commonwealth v. Reynolds, 120 Mass. 190, 21 Am.

Rep. 510 (1876) ....... ............. ....................... ............... 32,36
Contee v. United States, 215 F. 2d 324 (D. C. Cir. 1954) 46
Costello v. United States, 298 F. 2d 99 (9th Cir. 1962), 

cert. den. 376 U. S. 930 ............................ ........ .........  46

District of Columbia v. Little, 178 F. 2d 13 (D. C. Cir.
1949), a ffd  339 U. S. 1 (1950) ....... ....................... 29, 31

Dombrowski v. Pfister, 380 U. S. 479 (1965) ____30, 36, 38,
40, 41

Due v. Tallahassee Theatres, Inc., 333 F. 2d 630 (5th 
Cir. 1964) _____________ _____ _________ __ ________  36

PAGE

Egan v. Aurora, 365 U. S. 514 ....... ..... ........ ................  36
Entickv. Carrington, 19 How. St. Tr. 1029 (1765) ____ 23

Fay v. Noia, 372 U. S. 391 ....... ...... ............ .......... ........  44
Frank v. Maryland, 359 U. S. 360 (1959) ...... ...... .........  22

Gayle v. Browder, 352 U. S. 903, affirming 142 F. Supp.
707 (M. D. Ala. 1956) ................. ......... ..... .................  36

Giordenello v. United States, 357 U. S. 480 ______ ___  46



I ll

Hague v. C.I.O., 307 U. S. 496 ........................ ..............  36
Henson v. State, 263 Md. 518, 204 A. 2d 516 (1964) .... 35 
Henry v. Greenville Airport Comm., 284 F. 2d 631 

(4th Cir. 1960) ..............................................................  48

Johnson v. United States, 333 U. S. 10 (1948) ....24,25,31
Jones v. United States, 357 U. S. 493 (1958) ....... 19, 20, 21,

25, 30
Jordan v. Hutcheson, 323 F. 2d 597 (4th Cir. 1963) ....36, 37

Ker v. California, 374 U. S. 23 ........... ....................... 21, 44

Love v. United States, 170 F. 2d 32 (4th Cir. 1948), 
cert. den. 336 U. S. 912 (1949) ................................... 32

McDonald v. United States, 335 U. S. 451 (1948) .......24, 25
McNeese v. Board of Education, 373 U. S. 668 ...........  36
Mapp v. Ohio, 367 U. S. 643 (1961) .......20, 21, 37, 38, 41,44
Marcus v. Search Warrant, 367 U. S. 717 (1961) ...........  22
Martin v. United States, 183 F. 2d 436 (4th Cir. 1950) 32
Miller v. United States, 357 U. S. 301 ..................... .....  41
Monroe v. Pape, 365 U. S. 167 ........... ...... .............. —  36
Morrison v. United States, 262 F. 2d 449 (D. C. Cir.

1958) ......................... - ............ .................................. 28, 29, 31
Mulcahy v. State, 221 Md. 413, 158 A. 2d 80 ...............  28

N.A.A.C.P. v. Button, 371 U. S. 415 ....................     41
Nat. Safe Dep. Co. v. Stead, 232 U. S. 58   ............ . 35

Olmstead v. United States, 277 U. S. 438 ......... ........ . 41

Preston v. United States, 376 U. S. 364 (1964) .....—  25
Reeves v. Warden, 226 F. Supp. 953 (D. Md. 1964) .... 28
Rios v. United States, 364 U. S. 253 (1960) ............... 25

PAGE



IV

Sanders v. United States, 373 U. S. 1 __________ __ 44
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947) .......  36
Silverman v. United States, 365 U. S. 505 (1961) ....33,34
Stanford v. Texas, 379 U. S. 476 (1965) ....... ....... 22,23,38
State v. Mooring, 115 N. C. 709, 20 S. E. 182 (1894) ....32, 36 
Stoner v. California, 376 U. S. 483 (1964) ....... ......... ..25, 26

Taylor v. United States, 286 U. S. 1 (1932) ...................  25
Thornhill v. Alabama, 310 U. S. 88 ....... ............. .........  41
Townsend v. Sain, 372 U. S. 293 ............................ .....  44

United States v. Jeffers, 342 U. S. 48 (1951) ...............  25
United States v. Lefkowitz, 285 U. S. 452 (1932) .......25, 26
United States v. Oregon Medical Society, 343 U. S. 326 48
United States v. Rabinowitz, 339 U. S. 56 (1950) ....... 25, 32
United States v. Rufner, 51 F. 2d 579 (D. Md. 1931) —.46, 48 
United States v. W. T. Grant Co., 345 U. S. 629 ......   48

Wanzer v. State, 202 Md. 601, 97 A. 2d 914 (1953) ...... . 34
Weeks v. United States, 232 U. S. 383 ...........................  44
Wilkes v. Wood, 19 How. St. Tr. 1153 (1763) ..............  23
Williams v. Wallace, 240 F. Supp. 100 (M. D. Ala.

1965) _______ __ __________ ___________ ___ _______ _ 36
W olf v. Colorado, 338 U. S. 25 (1949) ________ 21, 35, 37, 39
Wong Sun v. United States, 371 U. S. 471 ..................  41
Wrightson v. United States, 222 F. 2d 556 (D. C. Cir. 

1955) ...... ....... .......................... ........ ........... ....................  46

S tatutes

28 U.S.C.A. §1343 ............. ................ .............. .......... ......  1

42 U.S.C.A. §1983 ................................ ...... ............ ......... 2,36

PAGE



V

O th er  A uthorities

PAGE

A.L.I., Restatement of the Law of Torts, §204 ...........  35

28 Am. Jur., Injunctions, §137........................................... 39

Cooley, Constitutional Limitations (1868) .... .............. 22,33

Hart & Wechsler, The Federal Courts and The Federal 
System, 123 (1953) ......................................................... - 48



In the

MuUb (£mtrt ni Appeals
F oe t h e  F ourth  C ircu it  

No. 10,384

S am u e l  J ames L ankford , et al.,

-v.-

B ernard J . S c h m id t ,

Appellants,

Appellee.

A PPE A L FROM  T H E  U N IT E D  STATES DISTRICT COURT 
FOR T H E  D ISTR IC T OF M A RY LA N D

APPELLANTS’ BRIEF

Statement of the Case

This case grows out of the episode known in Baltimore 
as “ The Veney Raids”—a prolonged police man-hunt for 
two brothers named Samuel and Earl Veney which began 
on Christmas day, 1964 and included more than 300 war­
rantless and unsuccessful searches of Negro homes in a 
19-day period. The plaintiffs in this case (appellants here) 
are Negro residents of Baltimore whose homes were 
searched during the man-hunt. They filed this class action 
January 8, 1965 in the United States District Court for 
the District of Maryland seeking an injunction restrain­
ing the Police Commissioner of Baltimore and his sub­
ordinate police officers from continuing or resuming cer­
tain allegedly unconstitutional practices regarding the 
searches of private dwellings. The complaint (la-lOa) 
alleged jurisdiction under 28 U. S. C. A. §1343 as author­



2

ized by 42 II. S. C. A. §1983, and asserted that the police 
conduct violated the rights of plaintiffs and other Balti­
more residents under the Fourth Amendment, enforceable 
against the States through the Due Process Clause of the 
Fourteenth Amendment, and also invaded the equal rights 
of plaintiffs and other Negroes in Baltimore to privacy 
in violation of the Equal Protection Clause of the Four­
teenth Amendment.

On January 8, 1965, appellants applied to Chief Judge 
Thomsen for a Temporary Restraining Order. At a hear­
ing in chambers, the Deputy Attorney General of Mary­
land, representing the Police Commissioner, orally moved 
to dismiss the action, but also promised that the defendant 
would issue a general order to his men dealing with the 
problems raised by the complaint.1 The Court denied the 
motion to dismiss without prejudice, and denied the tempo­
rary restraining order in view of the promised general 
order, and set the matter for hearing on a preliminary 
injunction on January 14. On January 14, a defense mo­
tion for judgment on the pleadings was filed (20a) and 
denied. An answer was filed (lla-19a) and the taking of 
testimony began. Forty-two witnesses testified, and police 
records were summarized in a report by a group of special 
masters appointed by the Court (185a-186a; 263a; 417a- 
419a). The evidence was completed January 27 and there­
after the case was fully briefed and orally argued.

An opinion was filed April 14, 1965 (424a-446a; reported 
at 240 F. Supp. 550). The opinion contains a lengthy state­
ment of facts and discussion of the law. The Court found 
that it had jurisdiction as alleged (240 F. Supp. at 555) 
and that the appellants had standing to seek relief in a 
class action (240 F. Supp. 555-556). The Court rejected

1 General Order No. 10388 was issued January 11, 1965 (18a). It is dis­
cussed below in the statement of facts.



3

the appellants’ equal protection claim, finding that the evi­
dence failed to show racial discrimination (Id.). The Court 
also rejected appellants’ principal Fourth Amendment 
argument that except in emergency circumstances the police 
are constitutionally required to obtain search warrants 
before entering private buildings to search for a person 
named in an arrest warrant. The Court held that the police 
could enter private buildings without a search warrant to 
arrest such a person “ if they have reasonable grounds to 
believe that the person is in the building” (240 F. Supp. 
558-561).

Appellants’ alternative theory sought an injunction 
against searches based on anonymous tips or otherwise 
without probable cause. The Court found that most of the 
eight searches about which specific testimony was offered 
and most of the other 300 or more searches were made 
without reasonable grounds to believe the persons sought 
to be arrested were on the premises, and rejected the de­
fense that the occupants consented to the searches in all 
or substantially all cases.2

2 The Court wrote (240 E. Supp. at 557) :
“ Anonymous tips, without something more to support or corroborate 

them, do not constitute reasonable grounds. . . . [citations omitted].
Most of the eight turn-ups as to which witnesses testified and most of 

the other turn-ups involved in this case were made without reasonable 
grounds to believe that the Veneys were on the premises. Most were made 
on anonymous tips alone, without any investigation to determine who the 
occupants of the house were, or anything else to corroborate them. As a 
result the homes of many respectable citizens were subjected to entry by 
force under circumstances which were disturbing to children and others 
in the house.

Defendant concedes that many entries were made without probable cause, 
but contends that the occupants consented in all or substantially all of the 
cases. In some instances there was no one there to consent. In others 
there was merely acquiescence after at least one officer armed with a shot­
gun or submachine gun had already entered the door. Acquiescence under 
those circumstances does not constitute consent. Amos v. United States, 
255 U. S. 313, 41 S. Ct. 266, 65 L. Ed. 654 (1921).”



4

Notwithstanding the findings and conclusions supporting- 
appellants’ alternative theory, the Court declined to grant 
injunctive relief. The Court said that such an injunction 
would be difficult to frame, difficult to enforce and would 
place severe burdens on the police and the Court; that the 
Court believed that the Commissioner and other police 
officers would make a bona fide effort to observe the rules 
stated in the Court’s opinion: and thus the violations were 
not likely to be resumed (240 F. Supp. at 561). The pre­
liminary injunction was denied, and the Court stated that 
“ The case will not be dismissed, but may be called for 
trial if it appears necessary.”  The order denying relief 
was entered May 7, 1965 (447a), and plaintiffs filed a 
timely notice of appeal (448a).

Questions Presented

I. Whether the Fourth Amendment requires the police 
obtain search warrants naming the place to be searched 
before entering and searching private premises to attempt 
to execute an arrest warrant for a person reasonably be­
lieved to be in the premises, and the Court below erred 
in denying injunctive relief against a practice of making 
such searches without warrants?

II. Whether, assuming arguendo that the Court below 
was correct in its decision of Question I above, the Court 
nevertheless erred in refusing to enjoin police from con­
tinuing a practice of searching homes on the basis of 
anonymous tips and phone calls and from searching homes 
on mere suspicion?

Statement of Facts

On the evening of December 24, 1964, a group of men 
committed an armed robbery of a liquor store in Baltimore, 
during which a police Lieutenant was shot and seriously



5

wounded. One suspect was apprehended immediately, and 
the police began searching for several others, including 
Samuel Jefferson Veney and his brother Earl Veney. At 
about 4 :50 a.m, December 25, police Sgt. Cooper, who was 
participating in the search, was found fatally shot near 
his cruiser. Warrants were issued that morning for the 
arrest of the Veney brothers, who were justifiably believed 
by the police to be armed and dangerous.

Early on the morning of December 25th, Commissioner 
Schmidt ordered that a special squad be formed to search 
for the Veneys under the command of Captain Mahrer of 
the Northeast District. The Commissioner gave Mahrer 
authority to call as many men or cars as he needed for 
the investigation, and the special squad numbered from 
50 to 60 men, augmented by additional officers in the vari­
ous districts.

Between December 25 and January 12, the Baltimore 
police made more than 300 turn-ups in an unsuccessful 
effort to locate and arrest the Veneys. A  “ turn-up” is an 
investigation of a location and usually includes a search 
of the premises.3 Most of the searches were at private

3 The special masters’ summary listed 300 searches by dates (419a). 
The report indicated that no materials were found with respect to 45 other 
incidents contained on a list submitted by defendants (417a). The searches
listed were as follows (419a) :

Date Searches Date Searches
12/24 0 1/3 7
12/25 4 1/4 18
12/26 39 1/5 5
12/27 16 1/6 10
12/28 16 1/7 4
12/29 28 1/8 7
12/30 35 1/9 4
12/31 54 1/10 2

1/1 26 1/11 1
1/2 23 1/12 1

Date Not Shown --1 5



6

dwellings occupied by Negroes. After the first two days, 
during which the police concentrated on leads developed 
from questioning persons in custody and acquaintances of 
the Veneys, “most of the turn-ups were” , the Court found, 
“ made as the result of tips, many of them anonymous, as 
to the whereabouts of the Veneys, whose pictures and de­
scriptions were widely circulated in the press. . . .  All tips, 
except those which were patently frivolous, were investi­
gated, and in most cases resulted in searches of the build­
ings” (240 F. Supp. at 553).

The Court found further that:

The police records with respect to many of the 
searches are sketchy and incomplete. Frequently all 
that is shown is that a particular address was turned- 
up on a particular day.

The police did not apply for or obtain search war­
rants for the search of any of the more than 300 prem­
ises they entered. The decision to enter a house was 
usually made by the lieutenant or sergeant in charge 
when the tip was received. The entries were made at 
all hours of the day and night, usually within 30 or 45 
minutes after receiving the tip (240 F. Supp. at 553).

A police emergency vehicle carrying shotguns, sub­
machine guns, tear gas apparatus and bullet-proof vests 
accompanied the men on every search. Before each turn­
up a surveillance team of plainclothesmen would drive past 
the building to locate exits, alleyways, etc. but there were 
no inquiries in the neighborhoods about the houses to be 
searched or other investigations of the anonymous tips, 
except that the surveillance team would observe the char­
acter of the neighborhood (225a).

Four men carrying shotguns or submachine guns and 
wearing bullet proof vests would go to the front door and 
knock. They would be accompanied or followed by a ser­



7

geant or lieutenant. Other men would surround the house, 
training their weapons on windows and doors. “As soon 
as an occupant opened the door, the first man would enter 
the house to look for any immediate danger, and the super­
vising officer would then talk to the person who had an­
swered the door. Few stated any objection to the entry; 
some were quite willing- to have the premises searched for 
the Veneys, while others acquiesced bcause of the show 
of force” (240 F. Supp. at 554).4

A number of officers with many years experience on the 
Baltimore force made it plain that it was a routine and 
normal practice to make searches on the basis of anony­
mous tips. The officers in charge of the squad recognized 
that they had a problem with false anonymous tips in all 
investigations, especially ones with a lot of publicity (355a- 
356a; 218-219a; 616a-617a). Lt. Glover of the Homicide 
Bureau, a veteran of 18 years on the force, and one of 
the leaders of this investigation (207a-208a), led fifty-two 
of the searches (220a). He testified that when they re­
ceived anonymous calls they evaluated them by listening 
to see if the caller “ seemed sincere” and “ sounded authen­
tic” ; that they would go out and make turn-ups “if it 
sounded like the caller was authentic and they weren’t 
very much fast talking and it sounded like they’d like to 
talk to you we would call these authentic calls” ; and that 
he had used this method of evaluating anonymous calls 
during- all his 18 years on the force (218a-219a; 455a-456a). 
When only a switchboard operator talked with the anony­
mous caller the address would be given to the officers in 
charge and they would make searches anyway (223a-226a).

Sgt. William Hughes, who was at times in charge of the 
special squad, said that in other cases during his 16 years

4 One officer testified that the practice was for all 4 men with heavy 
weapons to enter before the superior officer (273a).



8

on the force they had made searches on the basis of anony­
mous calls (278a-279a). Lt. James Cadden, a 16 year vet­
eran who was one of the principal officers in charge of the 
investigation and participated in 58 searches, testified that 
“you had to evaluate the emotions, the emotional voice, 
the audibility of the voice calling-” (310a).

Lt. Robert J. Hewes, the night shift commander of the 
Northern District ordered the search of the plaintiff Lank­
ford’s house after the dispatcher told him he had received 
a call that the Veneys were at that address. He testified 
as follows (292a-294a):

Q. Did you make any attempt to find out where the 
dispatcher—who the dispatcher got the call from ! 
A. Counsel, it isn’t may job to question the radio dis­
patcher, even though I am far and away senior and 
so forth and so on, and was the night commander, 
night shift commander of the Northern District I am 
still more or less under his orders just like I would 
be under Lieutenant Cadden’s in a homicide even 
though I ’m many years his senior.

Q. So the answer is it wasn’t your job to do it and 
you didn’t? A. No, sir. It is my job to carry out the 
instructions, period.

The Court: Instructions from whom?
The Witness: From the radio dispatcher.
The Court: Well, that is not quite clear to me 

either. I thought you said a moment ago that it 
was your decision to make the turn-up and now 
you say you were carrying out the instructions of 
the radio dispatcher.

I think counsel wants to know, and the Court 
wants to know, who was it that made the decision 
to make the turn up, was it you on the basis of the 
information that had been given you, or was it the 
dispatcher or someone over him who made the deci­
sion on the information that had been given him?

The Witness: Well, let’s say it this way, having 
received the information from the radio dispatcher,



9

who was doing his job, it then became my job to 
make the turn-up.

Now, the only one who could stop that turn up 
would have been the night inspector who I was 
unable to contact; and I am sure he would not have 
stopped it.

By Mr. Nabrit:
Q. You base that last statement on your general 

procedure. A. The general procedure of the depart­
ment is that whenever you are to do anything out of 
the ordinary like that, or there is a serious crime or 
anything out of the—injury to an officer or something 
like that, you are to inform the night inspector, it is 
a courtesy as much as an order. After all, if he is 
responsible for the City I figure, you know, it is only 
a matter of courtesy.

Q. You say you are sure he wouldn’t have stopped 
it because you were acting in accordance with regular 
procedure? A. That’s correct, sir.

The Court: What did you understand you were 
required to do, when did you understand you were 
required to make a turn-up, whenever what?

The Witness: Judge, I am going by twenty four 
years experience in the police department. You 
ask me why I would feel I was required to make 
that turn-up?

The Court: Yes.
The Witness: I would feel I ’d been derelict in 

my duty if I hadn’t made the turn up.
The Court: Based on the information you re­

ceived?
The Witness: I received information that the 

Veney brothers were there and, as I say, I have been 
in the department twenty four years and it’s never 
been done any different.

By Mr. Nabrit:
Q. And just to make sure I understand you, you 

didn’t check on the dispatcher to find out who he had



1 0

talked to and got this information from? A. He just 
said he had received a phone call.

Q. And he didn’t say from whom? A. Actually, 
it isn’t his place to have to tell me.

The operating premise of the police was to search any 
home where they thought there was a ‘‘possibility” the 
Veneys might be.0 Searches on anonymous tips were also 
conducted by district officers not connected with the spe­
cial squad (340a-341a), and “ scores of homes” were searched 
during the earlier “Profili case” where an officer was killed 
in a robbery in January 1964 or 1963 (380a).

Lt. Cadden stated that he would do the same thing he 
did in this investigation in the future (384a), but after 
the Judge indicated surprise at the response (id.) partially 
retracted his statement, stating that in the future he would 
consult with his Captain and Inspector and be guided by 
their decision (385a-387a).

On January 11, shortly after this suit was filed, Commis­
sioner Schmidt issued General Order No. 10388 (18a). The 
order directs officers to search premises for the purpose 
of arresting a person for whom an arrest warrant has 
been issued only if the officer has probable cause to believe 
the accused is on the premises. I f the officer doubts that 
there is probable cause he is directed to either seek a 
search warrant or consult with the offices of the State’s 
Attorney or Attorney General. There is no direction that 
officers seek search warrants where they believe that there 
is probable cause. 5

5 Lt. Glover’s testimony at 226a:
Q. Would it be fair to say that your operating premise was that 

if there was that you had to cheek out all such places where you 
thought you might turn up something? A. Any place where there 
was a possibility that the brothers were we were going to turn-up.



1 1

There were only a few searches after issuance of this 
order; the last reflected in the record was January 12th. 
Also the police stopped getting anonymous tips about the 
Veneys at about the same time (189a; 219a; 221a-222a; 
Transcript p. 881). The opinion below states that after 
January 12 there were only two searches, for each of 
which the police obtained search warrants (240 F. Supp. 
555), but the record is silent as to this. On March 11, 1965, 
Sam and Earl Yeney were arrested by the F. B. I. at a 
Long Island, N. Y. factory.

The Court made only general findings with respect to 
the events at the eight dwellings with respect to which 
testimony was taken. It found that the squads “numbered 
between ten and twenty officers and detectives” (240 F. 
Supp. at 554) and that some officers were “ polite and con­
siderate” while others “were abrupt, and without adequate 
explanation of their purpose, flashed lights on beds where 
children were sleeping and otherwise upset the occupants 
of the home being searched” (id.). With respect to searches 
of persons the Court found:

A  disabled veteran was patted-down, i.e. checked 
for a weapon, after the police had entered his grand­
mother’s dwelling, about a block from the corner where 
a policeman had been shot at and the badge of his 
cap struck by a bullet a few days before. Another 
man claimed that he had been patted-down after 
another entry, but since he was clad only in his pajama 
bottoms, the denial of the officers is more credible 
than his claim. When the police raided a pool hall 
on Wallbrook Avenue in response to a call from a man 
who falsely represented himself as the proprietor and 
said that the Veneys were there, the police searched 
all patrons of the pool hall for weapons. No other 
patting-down is shown by the evidence (240 F. Supp. 
at 554).



12

The Court also expressed a general conclusion that most 
of the eight searches were made without reasonable 
grounds and rejected the police defense that there was 
consent for the searches.6

The following are brief summaries of the events relating 
to each of the eight homes about which detailed evidence 
was adduced:

1. Lankford hom e— 2707 Parkw ood A venue

Mr. and Mrs. Lankford, who have 6 children, have lived 
at this address since 1949. Mr. Lankford has worked at 
the U. S. Post Office in Baltimore for 10% years (21a; 39a).

Lt. Robert J. Hewes led a search of the house at 2 :00 a.m. 
on January 2, 1965. About 45 minutes earlier he had been 
told by a communications center officer that he had re­
ceived a call that the Yeney brothers were at this address 
with a man named Garrett (292a). The Lankfords were 
asleep. Mrs. Lankford was awakened by the officers knock­
ing on the door and opened the door (22a). The officers 
entered the house and began their search while Lt. Hewes 
talked with Mrs. Lankford (287a-288a). Lt. Hewes claimed 
that Mrs. Lankford gave permission for the search but 
acknowledged that his men had already gone to the sec­
ond floor while he was talking with her (288a); Mrs. Lank­
ford denied that the officers asked for or were given per­
mission to search (23a).

Mr. Lankford was awakened in his second floor bedroom 
by two flashlights shining in his face and found four men 
with shotguns in his room (39a-40a). They questioned him

6 240 F. Supp. at 557; quoted in footnote 2, supra,. See also 240 F. 
Supp. at 561: “ The constitutional rights of the plaintiffs of other wit­
nesses and of other citizens have been violated by the police on separate 
though related occasions.”



13

briefly, while other officers searched the other rooms in­
cluding the children’s bedrooms, and left (40a-42a).

2. Tom pkins-Sum m ers-Rayner hom e— 2416  Eutaw Place

This large three-story dwelling is owned by Mr. Claude 
Tompkins and his wife, the Rev. Mrs. Elizabeth Tompkins, 
a Baptist minister and licensed foster mother who has four 
foster children living with her. A  third floor apartment is 
occupied by the Tompkins’ daughter and her husband and 
four children. One second floor room is occupied by Arthur 
Rayner, Mrs. Tompkins’ nephew, and another room is 
rented to a roomer, James Williams.

At about 11:00 p.m. December 26th, police Sgt. Dunn 
found a card in a liquor store check cashing file with the 
name Samuel Yeney and the address 2416 Eutaw Place. 
The card had a variety of items including Samuel Yeney’s 
signature, five inked fingerprints from his right hand, a 
driver’s license number; a steel company employee iden­
tification number and a physical description. The card 
contained the date 6/19, without any year, beside the Eutaw 
Place address. Dunn concluded that Veney had cashed a 
check on June 19, 1964 and given this address, and immedi­
ately reported this to Lt. Manuel. Dunn told Manuel that 
the card contained fingerprints but left the card at the 
store (353a-360a).

It occurred to Dunn that this might be “ a different Sam 
Veney” , but he also thought it might be the person they 
were seeking (359a). Actually the Samuel Veney who had 
once been a roomer at the Tompkins home was not the 
man sought by the police and had left Baltimore and en­
tered the Navy in January 1964 (416a). But without any 
further investigation Lt. Manuel decided to turn-up 2416 
Eutaw Place.



14

Lt. Manuel led a search party which arrived at the house 
at 1 :30 a.m. December 27, 1964, and searched the entire 
house. There were numerous conflicts in the testimony of 
ten witnesses about what happened at the house. Mrs. 
Tompkins, Mrs. Summers and Arthur Rayner gave an ac­
count depicting a frightening and high-handed type of 
armed intrusion by the police, including their pointing 
guns at and pushing and shoving Rayner and Mrs. Sum­
mers during a search without any request or grant of per­
mission. The officers told a different story, denying any 
abusive treatment of the occupants and variously claiming 
permission to search from all the occupants as well as a 
friendly reception culminating in cordial holiday greetings 
as they left.

3. Miles hom e— 1140 Shields Place

Mrs. Rita Miles, a hospital employee, lives with her five 
children (110a). December 31, 1964 at 12:45 p.m. she 
opened the door when policemen knocked and about 7 or 8 
officers entered (111a). One told her that they had a tip 
that the Veney Brothers were at the house and that her 
daughter was “going with one of the Yeney Brothers” (Id.). 
Mrs. Miles has a 15 year old daughter in the 9th grade. 
Mrs. Miles denied knowing anything about the Veneys and 
an officer told her “we got a tip and we have to search the 
house” (111a). The officers searched the house and left.

The special masters’ search found records indicating that 
this turn-up was made because of an anonymous tip that 
the Veneys were seen entering the house (Special Masters’ 
questionnaire No. 407). The defense offered no evidence 
about this search.

4. Hoots hom e— 2303 Allendale Hoad (3 rd  floor apartmentJ

Mrs. Terry Boots, a practical nurse lives with her five 
children in a third floor apartment in a large detached



15

house. At 4:15 p.m. on December 28, 1964 Mrs. Boots was 
in bed and her children were dancing and playing- in the 
living room. She heard a knocking on her door and some­
one yelling “open up” . Before she reached the door, police­
men had opened it and entered. They scattered through­
out the apartment searching each room and left without 
any explanation of the search. Mrs. Boots’ children were 
frightened and crying during and after the search (160a- 
163a).

No officers testified about the third floor search. Lt. 
Cadden testified that he and several men searched the 
first floor apartment finding only several children with 
whom he left his calling card (369a). Cadden stated that 
the address had been obtained from a friend of the Yeneys 
and that there were several phone calls that the Veneys 
were being fed at that location (368a). He did not elabo­
rate and there was no other evidence as to the reason for 
the search.

5. Bond hom e— 917 North Chapel Street

Mrs. Violet Bond and her 14 year old son Frankie have 
lived at this address for 10 years. On the morning of De­
cember 31, 1964, the house was empty. Frankie was play­
ing across the street when the police squad arrived and 
officers knocked on the door (167a). Frankie walked over 
and told them he lived there; they knocked again and told 
him to stand back; he repeated that he lived there and 
pushed open the door (167a-168a). The officers testified 
that Frankie Bond gave them permission to search; he 
denied this.

The search was made because the police learned that 
Samuel Veney had given the name of a supposed inhabi­
tant of the address as a credit reference for an insurance 
policy (365a).



16

6. Floyd hom e— 2204  North R osedale Street

Mr. and Mrs. Floyd were at work (Mr. Floyd is a state 
employee) when the police searched their home at 9:00 p.m. 
on January 4,1965. Responding to several anonymous calls 
(some relayed by a newspaper which had offered a reward 
and guaranteed anonymity to informants) that a man re­
sembling one of the Veneys had been seen at this address, 
the police went to the house (333a). The officers knocked 
and called through an open window. IJpon receiving no 
answer but hearing noises, they entered the house through 
a window and searched it, finding only a dog inside (334a- 
335a).

7. Wallace hom e— 2408 H uron Street

Mr. and Mrs. Wallace have lived in this home for 21 
years (145a). They live with a 3 year old son, three 
daughters, Lucinda (a Baltimore public school teacher), 
Harrietta (a college student) and Sharon (a high school 
student) and two other relatives.

At 8 :30 p.m. on December 30, 1964, Lt. Coll of the S. W. 
district was told by a clerk at another police station that 
she received an anonymous call from a man who said that 
the Veneys were being sheltered at this address (340a). 
Lt. Coll led about 14 officers to the house and searched it 
shortly after 9 :00 p.m. When asked why he regarded the 
information as sufficiently reliable to act upon the Lieuten­
ant answered (346a):

A. Your Honor, due to the fact that this was the first 
time that the Police Department had received infor­
mation to place the Veneys in this particular area, 
I felt it should be investigated.

When the police arrived Lucinda Wallace was showing 
slides depicting a summer trip to Hawaii to a group of 
her family and guests, including a Bible School group.



17

Mr. and Mrs. Wallace were both out, Mrs. Wallace at a 
beauty shop she owned four doors away (82a-84a). While 
six officers were searching the house (85a), others sta­
tioned outside for a time refused to allow Mrs. Wallace 
to enter or explain what was going on (146a). She became 
upset and began to cry, and was finally admitted to the 
house where she and her daughters all cried (147a). The 
police told her that they had received an anonymous call 
that the Veney brothers were in the house (147a).

8. Sheppard hom e— 2003 North M onroe Street

Mrs. Maggie Sheppard, 72 years old, has lived at this 
address 18 years with her 46 year old grandson, Mr. Roscoe 
Cooper, a totally disabled veteran who has suffered from 
a mental disorder since 1944 (114a-115a). Cooper is not 
permitted to go anywhere by himself, and has not been 
out at night since 1944 (123a).

On the morning of January 6, 1965, Mrs. Sheppard went 
with her friend Mrs. Florence Snowden, a 72 year old 
civic leader, to the Veterans Administration Building to 
attempt to get an allotment increase for Cooper (121a; 
131a-132a). Upon leaving the V. A. the two ladies rode to 
their respective homes in a taxi driven by Mr. Albert 
Goodale (298a-299a). Goodale testified that he heard Mrs. 
Snowden call Mrs. Sheppard a fool: “Yes, she said you’re 
a fool, you don’t know how to take care of business or 
something to that effect. And the other lady told her, I 
wouldn’t call you a fool. And she said, well, you’re like 
your son, she said, he’s a fool, when he gets full of liquor 
he shoots a police, and that’s all I heard” (299a-300a). (In 
court the ladies denied this account of their conversation).

After discharging Mrs. Sheppard at her house, and 
noting the address, Goodale told a policeman what he had 
heard. A few minutes later he stopped another police 
cruiser and again made the same report (300a-307a).



18

At 11:20 a.m. Sgt. Kelimann got Groodale’s report as 
relayed through several officers. He reported this to Lt. 
Cadden and they proceeded to the Sheppard home, arriv­
ing about noon (313a-316a; 326a-327a). When Mrs. Shep­
pard opened the door, several officers entered, seized Cooper 
and patted him down and searched the house (319a). When 
Mrs. Sheppard would not answer all of the police ques­
tions, according to the police account, Mrs. Sheppard and 
Cooper were arrested (316a-317a) and taken to the N. W. 
district station where they were both booked on the charge 
“Investigation, suspected of Assault and Shooting” , and 
placed in cells (See arrest register at 420a-422a). They 
were detained and Mrs. Sheppard questioned until 2:30 
p.m. when Mrs. Snowden and a lawyer arrived at the sta­
tion and they were released (317a-319a).

ARGUMENT

I.

The Fourth Amendment requires that police officers 
obtain search warrants before entering and searching 
private premises to attempt to execute an arrest war­
rant, in the absence of consent or exceptional circum­
stances.

A.

The Fourth Amendment to the Constitution of the United 
States provides:

The right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated, and no 
Warrants shall issue, but upon probable cause, sup­
ported by Oath or affirmation, and particularly de­
scribing the place to be searched, and the persons or 
things to be seized.



19

The terms of the Amendment prohibit “unreasonable 
searches” and do not specify when search warrants must 
be obtained. But it is settled doctrine that under the 
Amendment a policeman must obtain a warrant “upon 
probable cause, supported by Oath or affirmation, and par­
ticularly describing the place to be searched” before he 
may enter a private place and seize a “thing” . Agnello v. 
United States, 269 IT. S. 20, 33; Jones v. United States, 
357 U. S. 493, 497. The issue presented by this appeal is 
whether an officer must also obtain a warrant “particu­
larly describing the place to be searched” before entering 
a private home for a search aimed at seizure of a “person” .

The fact that an officer has reasonable grounds to believe 
that contraband or other things he may rightfully seize 
are in a home does not justify his entry without a warrant 
to search for it. But the court below held that a warrant­
less search is permissible when an officer reasonably be­
lieves a person he has a warrant to arrest is on private 
premises.

Appellants submit that there is no rational ground con­
sistent with the purposes of the Amendment for such a 
rule permitting warrantless entries and searches for per­
sons but not for tangible goods. Indeed, the Fourth 
Amendment’s terms make no distinction between searches 
for persons and things and the Amendment protects the 
security of the people in their “persons, homes, papers 
and effects” without distinction. Neither the opinion below, 
nor any of the decisions it relies on, suggests any ground 
for a different rule as to search warrants where the police­
man seeks a man rather than his effects.

The United States Supreme Court has never decided the 
issue. In 1958 the Court refused to rule on the issue, which 
it said was a “grave” constitutional question, on the ground



2 0

that it was not fairly presented on a record which the 
Court interpreted as involving a search for goods. Jones 
v. United States, 357 U. S. 493, 499-500 (1958). Justices 
Clark and Burton dissented arguing that a warrantless 
forcible entry was validated by the officers’ reasonable 
(but erroneous) belief that a felon they had a right to 
arrest was on the premises.

This case presents the issue simply and squarely. The 
startling central fact in this litigation is that the Baltimore 
police entered and unsuccessfully searched for the Yeneys 
in more than 300 buildings in 19 days without ever seeking 
or obtaining a warrant naming any of the places searched. 
These 300 consecutive mistakes demonstrate the full poten­
tial of a rule which leaves the privacy of the home to the 
unsupervised judgment of the policeman. Under the defen­
dant’s General Order No. 10388, that rule is still in effect, 
with the sanction of the court below. The General Order 
directs the police to search when they believe they have 
probable cause and to seek warrants only if they doubt 
they have probable cause.

Appellants seek relief from this rule and from the stark 
terror of police state “dragnet” tactics which leave every 
man’s dwelling subject to armed invasion on the suspicions 
of petty officers at any time of the day or night. The evi­
dence demonstrates, with more clarity than any imagined 
hypothetical case ever could, the real dangers of such a 
rule. It shows again what Mr. Justice Douglas called “the 
casual arrogance of those who have the untrammelled 
power to invade one’s home” (Mapp v. Ohio, 367 U. S. 643, 
671 (1961), concurring opinion). In this case and under 
this rule of law it has been demonstrated that armed and 
forcible searches premised on totally uncorroborated anon­
ymous tips formed an incredible pattern of invasions of 
the constitutional rights of innocent citizens.



21

Appellants urge that their argument is firmly rooted in 
the principles of the Fourth Amendment.7 The protection 
they seek is not founded upon some novel theory of juris­
prudence which a more humane society might incorporate 
into its Bill of Bights; rather, appellants seek the very 
protection that James Otis and the Framers of the Amend­
ment strove to provide, namely, protection against odious 
general warrants which sanction wholesale invasions of 
private homes and subject the citizenry to a police system 
armed with unfettered discretion.

Appellants start with the incontrovertible proposition 
that a root policy of the Fourth Amendment is to secure 
to the citizen the right of privacy in his home. The land­
mark case of Boyd v. United Slates, 116 U. S. 616, 630 
(1886), stated the point simply and forcefully:

[The principles of the Fourth Amendment] apply 
to all invasions, on the part o f the government and 
its employees, of the sanctity of a man’s home and 
the privacies of life. It is not the breaking of his 
doors and the rummaging of his drawers that consti­
tutes the essence of the offense; but it is the invasion 
of his indefeasible right of personal security, personal 
liberty and private property.8

Appellants agree with the court below that “ [t]he his­
tory [of the Fourth Amendment] supports the conclusion

7 The fundamental protections of the Fourth Amendment are guaran­
teed by the Fourteenth Amendment against invasion by the States. W olf 
v. Colorado, 338 U. S. 25, 27 (1949); Mapp v. Ohio, 367 U. S. 643 (1961); 
Ker v. California, 374 U. S. 23, 33 (1963).

8 That the essential purpose of the Fourth Amendment is to protect the 
citizen’s right of privacy was reiterated in Jones v. United States, 357 
U. S. 493, 498 (1958), per Mr. Justice Harlan:

The decisions of this Court have time and again underscored the 
essential purpose of the Fourth Amendment to shield the citizen from 
unwarranted intrusions into his privacy.

See, also, W olf v. Colorado, 338 U. S. 25, 27-29 (1949).



2 2

that the principle attack of the Fourth Amendment 
was against general warrants . . . ” (240 F. Supp. at 560). 
That the Fourth Amendment was adopted in response to 
the abuses which had been committed by governmental 
authorities under general warrants has been documented 
in decisions of the Supreme Court of the United States. 
Boyd v. United States, 116 U. S. 616, 624-25 (1886); Frank 
v. Maryland, 359 U. S. 360, 363-66, 376-77 (1959); Marcus 
v. Search Warrant, 367 U. S. 717, 724-29 (1961); Stanford 
v. Texas, 379 U. S. 476, 481-84 (1965).

In Boyd, the Court stated (116 U. S. at 624-25):

In order to ascertain the nature of the proceedings 
intended by the Fourth Amendment to the Constitu­
tion under the terms “unreasonable searches and 
seizures,” it is only necessary to recall the contem­
porary or then recent history of the controversies on 
the subject, both in this country and in England. The 
practice had obtained in the Colonies of issuing writs 
of assistance to the revenue officers, empowering them, 
in their discretion, to search suspected places for 
smuggled goods which James Otis pronounced “the 
worst instrument of arbitrary power, the most destruc­
tive of English liberty and fundamental principles of 
law that ever was found in an English lawbook” ; since 
they placed “the liberty of every man in the hands of 
petty officers.”  9 This was in February 1761 in Boston 
and the famous debate in which it occurred was per­
haps the most prominent event which inaugurated the 
resistance of the colonies to the oppressions of the 
Mother Country. “ Then and there,” said John Adams, 
“ then and there was the first scene of the first act of 
opposition to the arbitrary claims of Great, Britain. 
Then and there the child Independence was born.” 

These things and the events which took place in 
England immediately following the argument about 
writs of assistance in Boston were fresh in the mem-

9 Citing Cooley, Constitutional Limitations 301-303 (1868).



23

ones of those who achieved their independence and es­
tablished our form of government. . . .10

As every American statesman during our revolu­
tionary and formative period as a nation was un­
doubtedly familiar with this monument of English 
freedom [Entick v. Carrington] and considered it as 
the true and ultimate expression of constitutional law, 
it may be confidently asserted that its propositions 
were in the minds of those who framed the Fourth 
Amendment to the Constitution and were considered 
as sufficiently explanatory as to what was meant by 
unreasonable searches and seizures.

Thus, although the American and English experiences 
with general warrants differed in some particulars, the 
essential vice of the general warrants was seen to be the 
same—the blanket authority given to police officers by a 
single warrant to enter and search hundreds of homes, 
trampling the right of privacy of their inhabitants in a 
dragnet search.

The most recent discussion of the origin and purpose 
of the Fourth Amendment is found in Stanford v. Texas, 
379 U. S. 476, 481 (1965), which reaffirms the Boyd 
analysis:

Vivid in the memory of the newly independent 
Americans were those general warrants known as 
writs of assistance under which officers of the Crown 
had so bedeviled the colonists. The hated writs of as­
sistance had given customs officials blanket authority 
to search where they pleased for goods imported in 
violation of the British tax laws. They were denounced 
by James Otis as “ the worst instrument of arbitrary 
power, the most destructive of English liberty, and 
the fundamental principles of law, that ever was 
found in an English lawbook, because they placed

10 The Court then discussed the English landmark eases of Wilkes v. 
Wood, 19 How. St. Tr. 1153 (1763), and Entick v. Carrington, 19 How. 
St. Tr. 1029 (1765), condemning general warrants.



24

‘the liberty of every man in the hands of every petty 
officer.’ ”

The solution adopted by the Framers of the Fourth 
Amendment to keep “ the liberty of every man” out of 
“ the hands of every petty officer” was the institution of 
the search warrant, which interposed the judiciary between 
the citizen and arbitrary police power. This rationale of 
the search warrant was indelibly recorded by Mr. Justice 
Douglas in McDonald v. United States, 335 U. S. 451, 455- 
56 (1948):

We are not dealing with formalities. The presence of 
a search warrant serves a high function. Absent some 
grave emergency, the Fourth Amendment has inter­
posed a magistrate between the citizens and the police. 
This was done not to shield criminals nor to make 
the home a safe haven for illegal activities. It was 
done so that an objective mind might weigh the need 
to invade that privacy in order to enforce the law. 
The right of privacy was deemed too precious to en­
trust to the discretion of those whose job is the detec­
tion of crime and the arrest of criminals. Power is 
a heady thing and history shows that the police acting- 
on their own cannot be trusted. So the Constitution 
requires a magistrate to pass on the desires of the 
police before they violate the privacy of the home. We 
cannot be true to that constitutional requirement and 
excuse the absence of a search warrant without a show­
ing by those who seek exemption from the constitu­
tional mandate that exigencies of the situation made 
that course imperative.

The institutional preference that determinations of prob­
able cause for searches be conducted by disinterested ju­
dicial officers rather than by harried police officers was 
also articulated in Johnson v. United States, 333 U. S. 10, 
13-14 (1948):

not grasped by zealous officers, is not that it denies 
The point of the Fourth Amendment, which often is



25

law enforcement the support of the usual inferences 
which reasonable men draw from evidence. Its pro­
tection consists in requiring that those inferences be 
drawn by a neutral and detached magistrate instead 
of being judged by the officer engaged in the often 
competitive enterprise of ferreting out crime . . . 
When the right of privacy must reasonably yield to 
the right of search is, as a rule, to be decided by a 
judicial officer, not by a policeman or government en­
forcement agent.11

Today it is well settled that a search warrant is required 
for the search of a private home, subject to established 
exceptions.12 Agnello v. United States, 269 IT. S. 20 (1925); 
Taylor v. United States, 286 IT. S. 1 (1932); Johnson v. 
United States, 333 IT. S. 10 (1948); United States v. Jeffers, 
342 IT. S. 48 (1951); Jones v. United States, 357 U. S. 493 
(1958); Rios v. United States, 364 IT. S. 253 (1960); Ghap-

11 See also United States V. Lefkowitz, 285 U. S. 452, 464 (1932) :
[T]he informed and deliberate determinations of magistrates em­
powered to issue warrants . . .  are to be preferred over the hurried 
actions of police officers . . . who may happen to make arrests. 
Security against unlawful searches is more likely to be attained by 
resort to search warrants than by reliance upon the caution and 
sagacity of petty officers while acting under the excitement that at­
tends the capture of persons accused of crime.

12 The exceptions to the search warrant requirement are: .
1. Search incident to arrest, justified only because of danger to the 

officer. See United States v. Rabinowitz, 339 U. S. 56 (1950) ; 
Preston v. United States, 376 U. S. 364 (1964).

2. Search of a moving vehicle, justified by its mobility. See Carroll 
v. United States, 267 U. S. 132 (1925).

3. Consent (True Waiver, Not Mere Acquiescence). See Johnson v. 
United States, 333 U. S. 10, 13 (1948) ; Stoner v. California, 376 
U. S. 483 (1964); Amos v. United States, 255 U. S. 313.

4. Perhaps other “ exceptional circumstances.”  This exception is rec­
ognized by the United States Supreme Court only in dictum. John- 
son v. United States, 333 U. S. 10, 15 (1948) ; McDonald v. United 
States, 335 U. S. 451, 456 (1948); United States v. Jeffers, 342 
U. S. 48, 51 (1951).



26

man v. United States, 365 IT. S. 610 (1961); Stoner v. 
California, 376 U. S. 483 (1964).

Appellee contends, and the court below agreed, that 
these precedents are all distinguishable because they in­
volved searches for things rather than searches for persons 
subject to arrest warrants. It is this contention which, 
appellants submit, is truly novel and foreign to constitu­
tional precepts. There are two major reasons why this 
purported distinction cannot be squared with the Fourth 
Amendment.

First, the invasion of the privacy of the home of the 
citizen is unaffected by the object of the policeman’s 
search. When a home owner is subjected to a warrantless 
search, it does not assuage his outrage nor lessen the 
gravity of the invasion of his privacy to know that the 
search is for a suspected felon rather than for some object 
of property. The Fourth Amendment protects the citizen’s 
right of privacy; an invasion of that right is not eased 
by the presentation of an arrest warrant for a stranger.

Second, the Fourth Amendment preference for judicial 
rather than police determinations of probable cause for 
searches of homes is no less because the intended search 
is for persons rather than for things. The requirement of 
a search warrant is no mere formality. It reflects the 
important Fourth Amendment policy that “ the informed 
and deliberate determinations of magistrates empowered 
to issue warrants . . . are to be preferred over the hurried 
actions of police officers . . . ” (United States v. LefJcowits, 
285 IT. S. 452, 464 (1932)). The Fourth Amendment com­
mands that judicial officers rather than police officers make 
the determination that there exists probable cause for the 
search of a particular home. In doing- so, the Fourth



27

Amendment neither makes nor supports a distinction be­
tween searches for persons and searches for things.

The opinion below suggests that the existence of an 
arrest warrant for a person believed to be within certain 
premises somehow obviates the necessity for obtaining a 
search warrant. The district court’s opinion founders on 
this misconception (240 F. Supp. at 560) :

The privacy of the occupants of the house is, of 
course, an important consideration. But it must be 
weighed against the interest of all the people that 
criminals be arrested and brought to trial, especially 
where, as in this case, a warrant has been issued, 
based upon the independent judgment of a magistrate, 
authorizing the officers to arrest a particular individual.

An arrest warrant embodies a judicial determination that 
there exists probable cause for the arrest of the person 
named therein, but reflects no judgment at all on the issue 
of where the suspect may be found. A  magistrate’s deter­
mination that there is probable cause to arrest a particular 
individual does not satisfy the Fourth Amendment require­
ment that a search of particular premises must be based 
upon a magistrate’s determination that there is probable 
cause to believe that the object of the search is within the 
premises to be searched.

No “independent judgment of a magistrate” authorized 
the police to enter and search each of 300 homes in their 
attempt to find and arrest the Veney brothers! Appellants 
submit that an arrest warrant cannot, consistent with the 
federal Constitution, become a general warrant authoriz­
ing the police to search where they please.

Once it is grasped that an arrest warrant is unrelated to 
a judicial determination that an accused is at a given home, 
it becomes evident that the issue of the legality of a search



28

is the same whether an officer has an arrest warrant or 
otherwise13 has a right to make an arrest.

This point is implicit in the reasoning of Morrison v. 
United States, 262 F. 2d 449 (D. C. Cir. 1958), which re­
jected the Government’s contention that the Fourth Amend­
ment requirement of a search warrant for a home is dis­
pensable if the object of the search is to arrest a person 
rather than to seize an article of property.

Morrison was convicted of committing a perverted act 
on a young boy in his (Morrison’s) home. The evidence 
was that the police were notified and were directed to 
Morrison’s home. The officers knocked on the front door 
and received no response; then one of the officers walked 
around to the back of the house, through an opening in 
the basement, upstairs, and into the living quarters. He 
admitted the other officers and the boy, who pointed out a 
handkerchief which he said had been used by Morrison 
and which he said bore some tangible evidence of the 
offense. This handkerchief was introduced at Morrison’s 
trial over his motion to suppress.

The Court of Appeals reversed Morrison’s conviction, 
holding illegal the officers’ entry into Morrison’s home. 
The Court assumed that the officers had probable cause 
to believe both that a felony had been committed and that 
the felon was in the house, and that the officers entered 
for the sole purpose of finding and arresting the felon. 
But the Court rejected the Government’s contention that 
the law of arrest, rather than the law of search, governed 
the case, saying (262 F. 2d at 452):

13 Maryland law allows a peace officer to arrest without a warrant if  he 
has reasonable grounds to believe at the time o f the arrest that a felony 
has been committed and that the person arrested has committed the offense. 
Beeves v. Warden, 226 F. Supp. 953, 957 (D. Md. 1964); Mulcahy v. 
State, 221 Md. 413, 421, 158 A. 2d 80.



29

The officers entered the house to make a search. It 
was, to be sure, a search for a person rather than the 
usual search for an article of property, but it was a 
search. The officers made this indubitably clear in 
their testimony; they went into the house to look for 
Morrison. It is true they intended to arrest him if 
they found him, and so the ultimate objective was 
an arrest. The Government urges that this latter fact 
requires that we apply the rules of law pertaining 
to arrest rather than the rules governing search. But 
the search was a factual prerequisite to an arrest; 
it was the first objective of the entry; the officers 
did in fact search the house. They entered to make a 
search as a necessary prerequisite to possible arrest.14

Morrison is true to the principles of the Fourth Amend­
ment, and is persuasive here. It correctly recognizes that 
any relaxation of the search warrant requirement for 
searches for persons, as opposed to searches for things, 
defeats the essential purpose of the Fourth Amendment 
to protect the individual’s right of privacy in his home 
by precluding any invasion of that privacy without a judi­
cial determination.

Appellants’ position was crystallized in District of Co­
lumbia v. Little, 178 F. 2d 13, 17 (D. C. Cir. 1949), aff’d 
339 IT. S. 1 (1950):

We emphasize that no matter who the officer is or 
what his mission, a government official cannot invade 
a private home, unless (1) a magistrate has authorized 
him to do so or (2) an immediate major crises in the 
performance of duty affords neither time nor oppor­
tunity to apply to a magistrate.

14 Compare the faulty analysis of the issue made in State v. Mooring, 
discussed infra, Part B, p. 32:

The officer did not justify the breaking on the ground that he had a 
search warrant, but a warrant for the arrest of a particular prisoner; 
and we are not called upon, therefore, to enter into a discussion of 
the constitutional safeguards that protect dwelling houses against 
undue search.



30

The rule announced below, which dispenses with warrants 
but cautions the officer not to enter without probable cause, 
furnishes only illusory protection. As the Baltimore police 
keep only “ sketchy and incomplete” records of their 
searches and in most cases no records at all (240 F. Supp. 
at 553-554), there is no record available which is compara­
ble to the sworn statement of facts known to an officer 
and asserted to justify his belief that the object of the 
search is on the premises, as required to obtain a search 
warrant. See Aguilar v. Texas, 378 U. S. 108 (1964). 
With no record of the basis for the policeman’s action, 
there is little possibility for it to be effectively reviewed 
by a court, or even by the policeman’s superior officers. 
This rule truly leaves the privacy of every citizen’s home 
“in the hands of every petty officer” .

The rule allowing warrantless searches for persons has 
an enormous potential for abuse by the police to nullify 
the requirement of a warrant to search for goods. The 
rule will surely tempt the police (although there is no 
record that the Baltimore officers did this) to search for 
contraband under the guise of a search for a person. 
Jones v. United States, 357 U. S. 493 (1958), involves just 
this problem, and the majority and dissenting opinions 
illustrate the difficulty courts will have in sorting out the 
officers’ motives when they search without warrants nam­
ing the place to be searched.

Moreover, the rule does nothing to promote the proba­
bility of regularity in the police conduct of searches. By 
eliminating the impartial magistrate from the procedure, 
the rule facilitates selective and discriminatory disregard 
of the probable cause standard, as for example, where the 
police think the crime is particularly heinous, or the homes 
to be searched belong to less privileged citizens, or to 
those who are politically unpopular (cf. Dombrowski v.



31

Pfister, 380 U. S. 479 (1965)). One can accept the finding 
of the court below that there was no evidence of racial 
discrimination in this case and still legitimately doubt 
that the police would have conducted a similar dragnet 
in prosperous white residential areas. (See testimony at 
225a, and the admonition against class discrimination in 
the opinion below at 240 F. Supp. 557-558). Such inva­
sions “ could” happen in prosperous suburban developments, 
but they did not happen there, nor is it likely that they 
will occur on any large scale except to those citizens whom 
the police will believe cannot or will not challenge them.

The search warrant rule is not blind to the exigencies 
of day-to-day police practice. Exceptional circumstances 
or “circumstances of necessitous haste” (Morrison v. 
United States, 262 F. 2d 449, 454 (D. C. Cir. 1958)), such 
as “hot pursuit” , or actual sight of a felon in the prem­
ises, are recognized as justifying failure to obtain a search 
warrant. But, mere delay or inconvenience to police of­
ficers does not excuse the necessity of obtaining a search 
warrant. Johnson v. United States, 333 U. S. 10, 15 (1948); 
Chappell v. United States, 342 F. 2d 935, 938-39, footnote 
5 (D. C. Cir. 1965), quoting with approval, District of 
Columbia v. Little, supra.

B.

No reasoned authority supports a distinction between 
searches for persons and searches for things insofar as 
the necessity of obtaining a search warrant is concerned. 
Appellants concede here, as they conceded below (240 
F. Supp. at 558), that they can point to no cases which 
explicitly uphold their position and that there are some 
cases opposed to their position. But these cases are 
faultily, if at all, reasoned, and are unfaithful to the prin­
ciples and purposes of the Fourth Amendment.



32

The court below relied in part upon Love v. United 
States, 170 F. 2d 32 (4th Cir. 1948), cert, den. 336 U. S. 
912 (1949).15 In Love, this Court held that revenue officers 
who had an arrest warrant for one Foster could right­
fully enter and search Love’s home if they had reasonable 
grounds to believe that Foster was in Love’s home. This 
Court relied, without discussion,16 on State v. Mooring, 115 
N. C. 709, 20 S. E. 182 (1894). Mooring, in turn (as the 
court below recognized)17 relied upon Commonwealth v. 
Reynolds, 120 Mass. 190, 21 Am. Rep. 510 (1876).

Love’s reliance on Commonwealth v. Reynolds was mis­
placed. Commonwealth v. Reynolds held that a police 
officer with an arrest warrant who entered the home of 
a third person to search for the person named in the arrest 
warrant would not be liable for trespass. The court rea­
soned as follows (120 Mass, at 196) :

The doctrine that a man’s house is his castle, which 
cannot be invaded in the service of process, was al­
ways subject to the exception that the liberty or 
privilege of the house did not exist against the king. 
It had no application, therefore, to the criminal process.

Love’s reliance upon Reynolds was misplaced because 
Reynolds’ rationale is fundamentally mistaken: the doctrine 
that a man’s house is his castle bore no exception for the 
King. The common law of England was stated by Pitt in 
his famous Speech on General Warrants:

16 Also cited below was another case in this Court, Martin v. United 
States, 183 F. 2d 436 (4th Cir. 1950), but that case is simply inapposite. 
In Martin, this Court merely followed United States v. Babinowitz, 339 
U. S. 56 (1950) in holding that under the “peculiar circumstances” 
(Martin, a probationer, was not arrested, but was notified to appear at 
a hearing), the search could be justified as if incident to a lawful arrest 
(183 F. 2d at 439).

16170 F. 2d at 33.
17 240 F. Supp. at 558.



33

The poorest man may, in his cottage, bid defiance 
to all the forces of the crown. It may be frail; its 
roof may shake; the wind may blow through it; the 
storm may enter; the rain may enter; but the king 
of England may not enter; all his force dares not 
cross the threshold of the ruined tenement.18

Thomas Cooley, one of the foremost legal commentators 
of the nineteenth century, rehearsed the English and 
American origins of the Fourth Amendment and concluded 
that the doctrine that a man’s house is his castle not only 
bore no exception for the executive but, rather, was ex­
pressly designed to curb abuses of executive authority:

The maxim that “ every man’s house is his castle” 
is made a part of our constitutional law in the clause 
prohibiting unreasonable searches and seizures; and 
in the protection it affords, it is worthy of all the 
encomiums which have been bestowed upon it.

If in English history we inquire into the original 
occasion for these constitutional provisions, we shall 
probably find that they had their origin in the abuse 
of executive authority, and in the unwarrantable intru­
sion of executive agents into the houses and among 
the private papers of individuals, in order to obtain 
evidence of political or intended political offenses.19

18 Quoted in Cooley, Constitutional Limitations, 299, note 3 (1868).
See also Silverman v. United States, 365 U. S. 505, 511, n. 4 (1961) .

William Pitt’s eloquent description of this right has been often 
quoted. The late Judge Jerome Frank made the point in more con­
temporary language: “A man can still control a small part of his 
environment, his house; he can retreat thence from outsiders, secure 
in the knowledge that they cannot get at him without disobeying the 
Constitution. That is still a sizable hunk of liberty-worth protecting 
from encroachment. A sane, decent, civilized society must provide 
some such oasis, some shelter from public scrutiny, some insulated 
enclosure, some enclave, some inviolate place which is a man’s castle.” 
United States v. On Lee (C. A. 2 N. Y .), 193 F. 2d 306, 315, 316 
(dissenting opinion).

19 Cooley, Constitutional Limitations, 299-300 (1868).



34

This truth was reinterated as recently as 1961 in a de­
cision of the United States Supreme Court:

The Fourth Amendment, and the personal rights 
which it secures, have a long history. At the very 
core stands the right of a man to retreat into his own 
home and there be free from unreasonable govern­
mental intrusion. Entick v. Carrington, 19 Howell’s 
State Trials, 1029, 1066; Boyd v. United States, 116 
U. S. 616, 626-630, 29 L. ed 746, 749-751 6, S. Ct 524.20

The court below also relied upon decisions of the State 
of Maryland, citing Warner v. State, 202 Md. 601 at 609, 
97 A. 2d 914 at 917 (1953) and quoting therefrom Chief 
Judge Sobeloff’s statement: “ Entry on private premises 
to execute an arrest warrant is legal.” Neither the hold­
ing of, or the quotation from, Warner supports the deci­
sion below. In Warner, a state trooper, responding to a 
complaint at 3:00 a.m. from a neighbor that loud noises 
were emanating from Wanzer’s property, went there to 
investigate. When the trooper approached within 100 yards 
of the residence, he observed through a picket fence 40 to 
50 people milling about on Wanzer’s lawn, some holding 
cans of beer, and heard loud dance music and laughter. 
Accompanied by a neighbor, the trooper entered the front 
gate and started arresting those on the property for al­
leged disturbance of the peace. The Court of Appeals of 
Maryland held that the entry on Wanzer’s property was 
illegal, and reversed Wanzer’s conviction. The court stated 
(97 A. 2d at 917):

Apart from consent, does the law permit entry by 
officers, without a warrant, upon private property 
under such facts as this case presents! . . . Entry on 
private premises to execute an arrest warrant is legal. 
Hubbard v. State, 195 Md. 103, 72 A. 2d 733.21 The

20 Silverman v. United States, 365 U. S. 505, 511 (1961).
21 In Hubbard, the court merely found that, under the circumstances 

presented, there had been a valid waiver o f a search warrant.



35

precise question of the legality of entry without a war­
rant turns on whether the events seen and heard by 
the officers constituted the commission of a [breach of 
the peace] in their presence.

The court then proceeded to hold that there existed in­
sufficient evidence of a breach of the peace to justify the 
officers’ entry.

Thus the statement from Warner quoted by the court 
below is not only purest dictum, but is unsupported as 
well.

Also inapposite, although cited by the court below, is 
Henson v. State, 263 Md. 518, 204 A. 2d 516 (1964), which 
held that officers who possess a valid search warrant for 
a house may, under exigent circumstances, forcibly break 
and enter the house without prior demand to enter.

The court below also relied upon §204 of the Restate­
ment of the Law of Torts. That section merely provides 
that a person privileged to make an arrest is not liable 
in trespass to a possessor of land for an entry on the 
land for the purpose of making an arrest, if the person 
sought to be arrested is on the land or if the person privi­
leged to make the arrest reasonably believes him to be 
there. But merely because a possessor of land does not 
have a cause of action under state law does not govern 
the question of whether he has a federal cause of action. 
Cf. Bell v. Hood, 327 U. S. 678 (1946). When the Restate­
ment was written, the Fourth Amendment was regarded 
as inapplicable to the states. Nat. Safe Dep. Co. v. Stead, 
232 U. S. 58, 71, had unequivocally declared this. There 
was no departure from this position until 1949 in Wolf v. 
Colorado, 338 IT. S. 25, 27-28 (1949).

Similarly, in the assault prosecution of a defendant who 
used a deadly weapon to repel an officer attempting to



36

enter to serve an arrest warrant on a third person reason­
ably believed to be on the land, a state might refuse to 
recognize a defense of illegal entry (illegal under state 
law or the Fourth Amendment). Such a state of the law 
would be perfectly consistent with the holdings in State 
v. Mooring and Commonwealth v. Reynolds, supra, as both 
Mooring and Reynolds were criminal prosecutions for 
assault with intent to kill brought against possessors of 
land who used deadly weapons32 against officers attempting 
to serve arrest warrants on third persons believed to be 
on the land. Both Mooring and Reynolds are a far cry 
from the facts of this case, where, of more than 300 en­
tries into homes of the citizens of Baltimore, not a single 
incident of violent resistance to officers occurred.

C.

Injunctive relief is both necessary and appropriate to 
protect appellants’ rights against warrantless invasions. 
This suit in equity is authorized by 42 II. S. C. A. §1983.23 
The practice of searching homes without search warrants 22 23

22 Mooring used an axe; Reynolds used a gun.
23 Section 1983 authorizes both an action at law and a suit in equity. 

In Monroe v. Pape, 365 U. S. 167, the Court held that the section author­
ized a damage suit against state officers to enforce the Fourth Amendment 
guarantee against unreasonable searches and seizures, made applicable to 
the states by the Fourteenth Amendment. The section has been the basis 
of a multitude of injunction cases against state officers including both due 
process [Egan v. Aurora, 365 U. S. 514; Hague v. C.I.O., 307 U. S. 496, 
518, 527; Jordan v. Hutcheson, 323 F. 2d 597 (4th Cir. 1963)), and equal 
protection claims (Baker v. Carr, 369 U. S. 187; McNeese v. Board of 
Education, 373 U. S. 668). Numerous injunctions against peace officers 
have been issued under the section. See, for example, Gayle v. Browder, 
352 U. S. 903, a ffg  142 F. Supp. 707 (M. D. Ala. 1956); Due v. Talla­
hassee Theatres, Inc., 333 F. 2d 630 (5th Cir. 1964) ; Anderson v. Albany, 
321 F. 2d 649 (5th Cir. 1963) ; Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 
1947); Bailey v. Patterson, 323 F. 2d 201 (5th Cir. 1963); Williams v. 
Wallace, 240 F. Supp. 100 (M. D. Ala. 1965). And see Dombrowski v. 
Pfister, 380 U. S. 479.



37

when the policeman believes he has probable cause and 
seeks to arrest someone existed before and continues after 
the Veney investigation under the authority of the defen­
dant’s General Order and the sanction of the Court below. 
The practice is defended as perfectly lawful.

There are a number of reasons why injunctive relief is 
particularly appropriate here. The primary reason is 
that an injunction is the only remedy capable of serving 
as a deterrent to lawless searches of the homes of innocent 
citizens.

The principal justification for applying the exclusionary 
rule where physical evidence is unlawfully seized is that 
experience proved it the only effective deterrent. Mapp v. 
Ohio, 367 U. S. 643, 651-653, 670.

The difficulty of placing a monetary value on the consti­
tutional right of privacy is obvious (cf. Jordan v. Hutche­
son, 323 F. 2d 597, 601 (4th Cir. 1963)), and the illusory 
“ remedy” of the damage action for trespass (limited in 
some jurisdictions to injury to physical property) was 
shown by Mr. Justice Murphy, dissenting in Wolf v. Colo­
rado, 338 U. S. 25, 42-44 (reasoning which was adopted in 
Mapp v. Ohio, supra). Justice Murphy saw no reason for 
surprise that “ there is so little in the books concerning 
trespass actions for violation of the search and seizure 
clause” (id. at 44).

Also, only theoretical and not real, is the possibility of 
“ disciplinary action within the hierarchy of the police 
system, including prosecution of the police officer for a 
crime . . . [A ]s Mr. Justice Murphy said in Wolf v. Colo­
rado, at 42, ‘Self-scrutiny is a lofty ideal, but its exalta­
tion reaches new heights if we expect a District Attorney 
to prosecute himself or his associates for well-meaning 
violations of the search and seizure clause during a raid



38

the District Attorney or his associates have ordered’.” 
Mapp v. Ohio, 367 U. S. 643, 670 (concurring opinion).

In a case like this one, where the object of the search 
is a person and not goods, the exclusionary rule is for 
obvious reasons inapplicable and offers no protection 
against lawless invasions of the homes of the innocent.24 
Unless equity courts find means to protect the innocent 
householders, who are the principal intended beneficiaries 
of the Fourth Amendment, their rights will not be pro­
tected. It would be a grotesque irony if our courts protect 
only against the unlawful search which actually uncovers 
contraband (by the exclusionary rule), while offering no 
relief against an admittedly unlawful pattern and prac­
tice affecting hundreds of innocent homeowners. A judi­
cial system, which permits the guilty to go free because 
the constable blunders should not hesitate to protect the 
innocent from those very blunders.

As Mr. Justice Jackson has so eloquently stated, most 
unlawful searches pass unobserved by the courts, with 
disastrous consequences for privacy. Brinegar v. United 
States, 338 U. S. 160, 181-182:

Only occasional and more flagrant abuses come to 
the attention of the courts, and then only those where 
the search and seizure yields incriminating evidence 
and the defendant is at least sufficiently compromised 
to be indicted. If the officers raid a home, an office, 
or stop and search an automobile but find nothing 
incriminating, this invasion of the personal liberty of 
the innocent too often finds no practical redress. There 
may be, and I am convinced that there are, many un­
lawful searches of homes and automobiles of innocent 
people which turn up nothing incriminating, in which

24 Nor can there be any possible relief by a suit for return of seized 
goods (Stanford v. Texas, 379 U. S. 476; Dombrowski v. Pfister, 380 U. S. 
479) where the invasion of privacy conies from a search for persons.



39

no arrest is made, about which courts do nothing and 
about which we never hear. . . .

[A ]n  illegal search and seizure usually is a single 
incident, perpetrated by surprise, conducted in haste, 
kept purposely beyond the court’s supervision and 
limited only by the judgment and moderation of 
officers whose own interests and records are often at 
stake in the search. There is no opportunity for in­
junction or appeal to disinterested intervention. The 
citizen’s choice is quietly to submit to whatever the 
officers undertake or to resist at risk of arrest or im­
mediate violence.

In this case, because of the flagrant and widespread 
nature of the officers’ conduct, and the clear evidence that 
their actions are a part of the regular routine sanctioned by 
the General Order of the Commissioner, the courts have a 
rare occasion to enforce the Fourth Amendment for the 
direct benefit of innocent citizens.

It takes no imagination, merely a reading of this record, 
to satisfy the mind that the harm suffered by victims of 
such lawless police raids is indeed irreparable. The “ se­
curity of one’s privacy against arbitrary intrusion by the 
police” is a right so basic to a free society as to be “ im­
plicit in ‘the concept of ordered liberty’ and as such en­
forceable against the States through the Due Process 
Clause” . Wolf v. Colorado, 338 U. S. 25, 27-28. This is no 
violation of a mere technical right. It is not a mere case 
of trespass quare clausum fregit or even of repeated tres­
passes appropriate for injunctive relief to protect prop­
erty rights. See 28 Am. Jur., Injunctions §137. This case 
involves much more. Nighttime invasions of the home by 
bands of armed men asserting the right by governmental 
authority to make such incursions present an issue strik­
ing at the heart of personal security. Men have fought 
and died to protect their families against such invasions



40

throughout history—from the pre-French Revolutionary 
struggle against the lettres de cachet to the world wide 
struggle against a modern tyranny symbolized by the 
Gestapo raids on the Warsaw Ghetto. Incidents in this 
record— Mr. Lankford awakened at 2 :00 a.m. by a hand of 
armed men shining lights in his face (39a-40a), or Mrs. 
Boots’ two-year old child screaming for his mother when 
armed officers invaded the house without warning (161a- 
162a), or the totally unjustified arrest of 72-year old Mrs. 
Maggie Sheppard and her mentally ill grandson because 
she would not answer the officers’ questions when they 
invaded her home (315a-317a)—make plain what is at 
stake when police can with impunity invade the sanctity 
of a man’s home and the privacies of his life.

Perhaps the most eloquent statement of the importance 
of Fourth Amendment rights was made by Mr. Justice 
Jackson, dissenting in Brinegar v. United States, 338 U. S. 
168, 180-182 (1949):

[Fourth Amendment rights] are not mere second class 
rights but belong in the category of indispensable 
freedoms. Among deprivation of rights, none is so 
effective in cowing a population, crushing the spirit 
of the individual and putting terror into every heart.
. . . And one needs only to have dwelt and worked 
among a people possessed of many admirable qualities 
and deprived of these rights to know that the human 
personality deteriorates and dignity and self-reliance 
disappear where homes, persons and possessions are 
subject at any hour to unheralded search and seizure 
by the police.

In Dombrowski v. Pfister, 380 U. S. 497, the Supreme 
Court ordered the police enjoined to offset “ the chilling 
effect [on freedom of expression which] may derive from 
the fact of the prosecution, unaffected by the prospects of



41

its success or failure.” Here, the absence of standards 
governing* police conduct permits the very arbitrary en­
forcement of law condemned in Dombrowski. Permitting 
the police to determine which house they may enter, without 
supervision, will have the same “chilling effect” on privacy 
as Dombrowski condemned with regard to speech.

Only an order requiring the police to obtain warrants 
can introduce a procedure which will have any tendency 
to produce a probability of regularity in police searches 
and reduce the probability that policemen will use un­
trammelled power arbitrarily and selectively against the 
poor, despised or politically dissident segments of the 
population. Many cases have applied similar reasoning to 
invalidate vague criminal laws impinging upon free speech. 
N.A.A.C.P. v. Button, 371 U. S. 415, 436; Baggett v. Bullitt, 
377 U. S. 360, 373-374; Thornhill v. Alabama, 310 IT. S. 88, 
97-98.

The public interest requires that constitutional rights not 
remain abstract and unrealized and that an injunction be 
granted. If Government does not obey its own laws, the 
rule of law may be destroyed. Mapp v. Ohio, 367 U. S. 
643, 659. Shortcut methods do not, in the long run, en­
hance law enforcement (Miller v. United States, 357 U. S. 
301, 313). Not only may they make it impossible to convict 
felons, cf. Wong Sun v. United States, 371 U. S. 471, but 
official lawbreakers breed “ contempt for the law” which 
invites “every man to become a law unto himself.” Olmstead 
v. United States, 277 U. S. 438, 485 (Brandeis, J. dissent­
ing).

A suitable injunction requiring a constitutional warrant 
practice should not be beyond the capacity of the broad 
and flexible federal equity power. Alexander v. Hillman, 
296 U. S. 222, 239. Appellants submitted a proposal in a 
brief to the trial court setting out the principles they



42

thought should be embraced in such an order; it is quoted 
in the margin below.25

26 “ Plaintiffs respectfully submit the following statement of the relief 
requested and the principles which they believe should be embodied in an 
injunctive order in this case:

“A. Defendant and his agents, etc. should be enjoined from conducting 
searches for a person sought to be arrested by entering homes or other 
private places unless in possession of a warrant particularly describing 
the place to be searched and the person to be arrested which has been 
issued upon a sworn showing of probable cause to believe that the person 
to be arrested is within the named premises, except as indicated in para­
graph B below.

“ B. (1) An exception to the warrant requirement exists where the offi­
cer ordering or making the search or entry of private premises has positive 
personal knowledge that a person he has a lawful right to arrest is within 
the premises to be searched or entered.

“ (2) The general exception that ‘necessitous circumstances’ may excuse 
the obtaining of a warrant to search for articles or things, is equally 
applicable to a search to seize persons, provided, of course, that probable 
cause exists.

“ (3) In interpreting the general exception for ‘necessitous circum­
stances’ it must be stressed that mere inconvenience to peace officers and/or 
some slight delay necessary to enable them to seek and obtain a warrant 
to search premises are not sufficient to dispense with the requirement of 
a warrant. The policy of the Fourth Amendment is to prefer the detached 
judgment of judicial officers to reliance upon the caution of police officers 
in determining the existence of probable cause to enter a private home.

“ (4) Consent to enter and to search obtained from a person with ca­
pacity to give consent may justify an entry and search without a warrant 
specifically authorizing entry and search, provided that the consent is un­
equivocal and specific, and freely and intelligently given without duress 
or coercion, actual or implied. The essence of consent is free choice, fully 
explained to and understood by the person exercising it, under circum­
stances which make the existence of free choice credible. However, since 
consent amounts to a waiver of Fourth Amendment rights to turn away 
officers without warrants, consent will not be lightly inferred. Coercion 
or duress is implicit where ‘invitations’ are extended to officers who demand 
entrance under color of their badges or office, or who display weapons, 
or come in force, or request permission to search only after entry without 
consent. Mere acquiescence to demands or failure to resist orders or sug­
gestions of the police does not amount to unequivocal and specific consent. 
Neither does entry obtained by trickery or subterfuge. Generally, land­
lords and hotel operators have no authority to consent to a search of a 
tenant’s or guest’s rooms, apartment, or premises.

‘■C (1) In the absence of waiver, all searches of private premises to
make an arrest, must be supported by ‘probable cause’ which exists where



43

The defendant Commissioner could obey such an order 
merely by giving suitable instructions to his men and tak­
ing reasonable administrative steps to see that his orders 
are obeyed. Enforcement of such an injunction would not 
involve the court in administration of police affairs to any 
greater degree than is necessary to protect the important 
rights which are at stake. The warrant requirement would 
provide for screening of asserted probable cause by mag­
istrates in the regular course of their duties,26 and the 
correctness of the magistrates’ determinations would be 
decided in the normal course of other litigation and not 
in this case. A  warrant requirement would provide a 
sworn record of the claimed factual justification for 
searches. As with all legal questions there will be border­
line cases involving the exceptions to the warrant require­
ment. But if the Commissioner takes reasonable steps to 
enforce his orders, he cannot be held in contempt or at 
all blameworthy for occasional aberrations of individual 
officers. At any event, in borderline cases there would cer­

the facts and circumstances within the officers’ knowledge and of which 
they have reasonably trustworthy information are sufficient in themselves 
to warrant a man of reasonable caution in the belief that the person to 
be arrested is on the premises to be searched.

“ (2) As an aid to application of this general definition of ‘probable 
cause,’ it should be understood that probable cause to believe that a person 
sought is at a specified premises is generally not derivable from:

“ (a) Anonymous tips or phone calls reporting information which is 
not otherwise corroborated.

“ (b) Mere ‘suspicions,’ ‘beliefs,’ or ‘conclusions’ o f the officer or his 
informant, unsupported by direct personal observation or other known 
facts.

“ (c) Tips or information from informants unaccompanied by a state­
ment or explanation of the basis for the informant’s claimed knowledge.

“ (d) Information leading only to a belief that there is a ‘possibility’ 
(as opposed to a reasonable probability) that the person sought is at the 
specified location.”

26 Judges are available every day at each Baltimore police station (192a- 
194a).



44

tainly be no criminal contempt because there would be no 
criminal intent in close issues of judgment.

In the last analysis, this case cannot turn on any sup­
posed difficulty in framing and enforcing constitutional 
standards, for the Constitution commits this responsibility 
to the federal judiciary. When Mapp v. Ohio, 367 U. S. 
643; Ker v. California, 374 U. S. 23, and Weeks v. Umted 
States, 232 U. S. 383; are read with Fay v. Noia, 372 U. S. 
391; Townsend v. Sain, 372 U. S. 293; and Sanders v. 
United States, 373 U. S. 1, it becomes apparent that hope 
for isolation of the federal courts from the process of 
adumbrating principles which govern police conduct is an 
illusion In the long run, law enforcement is helped, not 
hindered, by articulation of constitutional principles which 
serve as a guide to proper police conduct, for equitable 
relief permits the police to modify their practice to con­
form to the Constitution without freeing the guilty as in 
the case of the exclusionary rule.



45

II.

Assuming arguendo tliat the police are not required 
to obtain search warrants in the circumstances discussed 
in Argument I, the Court nevertheless erred in refusing 
to enjoin the police from continuing the practice of 
searching homes on the basis of anonymous tips and 
on mere suspicion.

Appellants have argued above that in the absence of 
emergency circumstances, consent, or actual knowledge that 
an accused is on the premises, the Fourth Amendment re­
quires that the police obtain a warrant naming the place to 
be searched before searching private premises to attempt 
to execute an arrest warrant. Appellants adhere to this 
principal position, but submit they were entitled to relief 
even assuming arguendo that the court below was correct 
in its conclusion that “where the police hold a warrant for 
the arrest of a person charged with crime, they may enter 
a dwelling or other private building to arrest such person 
if they have reasonable grounds to believe that the person is 
in the building.” (240 F. Supp. at 560-561). Appellants 
were entitled to relief to restrain certain routine practices 
of the Baltimore police which are in plain violation of the 
rule stated by the court below.

The most obvious and flagrant practice is that of making 
searches on the basis of entirely uncorroborated anony­
mous telephone calls. Equally invidious is the routine 
police practice of making searches of homes at all times of 
the day or night whenever the police think there is any 
possibility that the suspects are present, but without in­
formation from any source (anonymous or otherwise) that 
the suspects are in a particular building at the time of the 
search. The Court below made findings which established



46

appellants’ contentions in this regard but declined to en­
join the practices on the ground that the injunction would 
be difficult to frame, difficult to enforce, would place severe 
burdens on the police, and that the Court believed the police 
would make a bona fide effort to observe the rules stated by 
the Court and thus the violations were not likely to be re­
sumed.

We submit that the failure of the court to grant relief 
to guard against a continuance or repetition of these admit­
tedly serious violations of appellants’ constitutional rights 
to privacy was erroneous.

The evidence about the pattern of police conduct is clear, 
unambiguous and uncontradicted. The stark fact is that 
the Baltimore police, following their usual and routine 
procedures and practices, made more than 300 unsuccessful 
searches in a period of about 19 days and made most of 
them on the basis of anonymous phone calls. It plainly ap­
peared from the testimony of a number of officers, described 
in the statement of facts supra pp. 7 to 10, that the 
practice of searching on the basis of anonymous tips was 
a deeply ingrained routine. The officers saw nothing at all 
wrong in the practice and regarded it as their duty to 
search on the basis of anonymous tips.

Anonymous tips do not provide probable cause for a 
search since the police obviously have no basis for evaluat­
ing the trustworthiness of information secured from such 
informants if they do not know who the informants are. 
Numerous cases have so held, and the court below correctly 
recognized the rule. Contee v. United States, 215 F. 2d 324, 
327 (D. C. Cir. 1954); Costello v. United States, 298 F. 2d 
99 (9th Cir. 1962), cert. den. 376 U. S. 930; Wrightson v. 
United States, 222 F. 2d 556 (D. C. Cir. 1955); United 
States v. Rufner, 51 F. 2d 579 (D. Md. 1931); see also 
Aguilar v. Texas, 378 IT. S. 108 (1964); and Giordenello v.



47

United States, 357 U. S. 480. Where officers make searches 
without even knowing anything about their informants they 
are easy prey for malicious pranksters. Three hundred con­
secutive mistakes is sufficient to demonstrate the folly of 
their system of judging anonymous calls by the “ sincerity” 
of the caller’s voice.

The Court’s determination that there is no likelihood that 
the practice will be resumed is totally unsupported by the 
record. It rests entirely on an uncritical faith that the po­
lice will follow the law as stated in the court’s opinion 
without being ordered to do so. We submit that such faith 
is misplaced and inappropriate, particularly where, as here, 
the police have followed the forbidden practice for decades. 
An explicit direction from the Court that the defendant in 
unequivocal terms order his men to halt this ingrained 
practice is the very least that should be required. At no 
time did Commissioner Schmidt come forward to indicate 
his plans, intentions, or attitude, or even to negate the in­
ference that he still defends the police conduct. He did 
nothing to curb it before the lawsuit was filed, and by that 
time the anonymous tips about the Yeneys had stopped. 
The Commissioner’s General Order makes no mention of 
anonymous phone calls; it merely defines probable cause in 
general legal terminology.

Surely it is the obligation of any equity court to take 
every step within its power to prevent the repetition of an 
outrage like the Veney Raids. Many of the same equitable 
considerations detailed in argument I. C. supra, pp. 36 
to 44, apply with equal force here. It would not be dif­
ficult to frame or enforce an order requiring the Commis­
sioner to forbid his men to make searches on the basis of 
uncorroborated anonymous tips and to take reasonable ad­
ministrative steps to see that his directive is obeyed. If



48

such an order imposes a burden on the police in apprehend­
ing criminals, the constitutional right o f privacy re­
quires that they bear that burden.

An opinion declaring the law is no substitute for a judg­
ment directed to those in power. Judge Chesnut made 
clear the law on anonymous tips in 1931. United States v. 
Rufner, supra. Only a judgment directing action or re­
straint can reasonably be expected to have a sure impact 
in the administrative channels of a large police depart­
ment. Something is required to insure that the court’s view 
of the law is communicated in clear and unmistakable terms 
to the rank-and-file officers who make the vital decisions af­
fecting the privacy of citizens. Equity courts traditionally 
use the injunction to serve that function. Cf. Buchner v. 
County School Board of Greene County, Fa., 332 F. 2d 452, 
456 (4th Cir. 1964); Henry v. Greenville Airport Comm., 
284 F. 2d 631, 633 (4th Cir. 1960); Clemons v. Bd. of Edu­
cation of Hillsboro, 228 F. 2d 853, 857 (6th Cir. 1956).

A voluntary cessation of a course of illegal conduct, es­
pecially where timed to anticipate suit, is no ground for 
refusing an injunction, as this would leave defendants free 
to return “ to their old ways.” United States v. W. T. Grant 
Co., 345 IT. S. 629, 632; Bailey v. Patterson, 323 F. 2d 201 
(5th Cir. 1963); United States v. Oregon State Medical 
Society, 343 U. S. 326, 333; Hart & Wechsler, The Federal 
Courts and The Federal System, 123 (1953).

The arguments against broad injunctive orders which 
merely admonishing officials in general terms to obey the 
Constitution surely do not apply to a limited order pro­
hibiting searches on anonymous tips. This difficulty might 
become a problem to the extent that an injunction attempts 
to deal more generally with violations of the probable cause 
standard. (The fact of such a difficulty itself reinforces the



49

argument that magistrates should be interposed between 
the police and citizens by a warrant requirement.) But an 
order explicitly forbidding searches premised on the “ mere 
possibility” or “ suspicion” that the suspects sought are 
on the premises searched is certainly feasible. Such prac­
tices are exemplified in the record by a search made be­
cause a supposed occupant of a home had been used as a 
credit reference, without any information that the Veneys 
were there or had ever been there (365a), and by the uni­
form failure of the police to make any inquiries, even as to 
who lived in a house, before searching.

In conclusion, we submit that the rights involved are 
precious constitutional rights which should not be diluted 
by judicial reluctance to enforce them. The exercise of all 
available equity powers is appropriate in the face of over­
whelming evidence of constitutional violations, after a full 
and fair hearing. If the equity courts do not enforce the 
right of privacy of innocent home owners, the right will 
not be enforced at all.



50

CONCLUSION

It is respectfully submitted that the .Judgment below 
should be reversed.

J ack  Greenberg 
J am es M. N abrit , III 
M elvyn  Z arr 
M ich ael  M eltsner

10 Columbus Circle
New York, New York 10019

J u an ita  J ackson  M itch ell  
1239 Druid Hill Avenue 
Baltimore, Maryland

T u cker  R . D earing

627 Aisquith Street 
Baltimore, Maryland

W. A. C. H u g h es , Jr.
1803 Pennsylvania Avenue 
Baltimore, Maryland

Attorneys for Appellants



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