STONER v. CALIFORNIA

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Docket Number

No. 209.

Attorney(S)

William H. Dempsey, Jr., by appointment of the Court, 375 U.S. 805, argued the cause and filed briefs for petitioner. Arlo E. Smith, Chief Assistant Attorney General of California, argued the cause for respondent. With him on the brief were Stanley Mosk, Attorney General of California, and Albert W. Harris, Jr. and Michael J. Phelan, Deputy Attorneys General. A. L. Wirin, Fred Okrand and Paul Cooksey filed a brief for the American Civil Liberties Union of Southern California, as amicus curiae, urging reversal.

Judges

Potter Stewart
John Marshall Harlan

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Smart Summary

Factual and Procedural Background

On the night of October 25, 1960, the Budget Town Food Market in Monrovia, California, was robbed by two men. Eyewitnesses described one robber as carrying a gun and wearing horn-rimmed glasses and a grey jacket. Shortly after the robbery, a checkbook belonging to the petitioner, Joey L. Stoner, was found in a nearby parking lot and turned over to the police.

Two stubs in the checkbook showed checks made out to the Mayfair Hotel in Pomona, California. Following this lead, officers learned from the Pomona Police Department that the petitioner had a prior criminal record and obtained his photograph. The two eyewitnesses to the robbery stated that the photograph resembled the man who carried the gun.

On October 27, at about 10 p.m., officers went to the Mayfair Hotel. They had neither a search warrant nor an arrest warrant. A night clerk confirmed that petitioner was registered in Room 404 and stated that hotel regulations required guests to leave their key in the mailbox when they left; seeing the key there, he said petitioner was out. After the officers explained that they were there to arrest a man who had possibly committed a robbery and that they were concerned about a weapon, the clerk said he would be happy to give permission to enter and accompanied them to the room. He unlocked the door, told them “Be my guest,” and admitted them.

The officers then conducted a thorough search of the room and its contents. They found a pair of horn-rimmed glasses and a grey jacket, and in a bureau drawer a .45-caliber automatic pistol with a clip and several cartridges. The petitioner was arrested two days later, on October 29, in Las Vegas, Nevada. He waived extradition and was returned to California for trial on a charge of armed robbery. The gun, cartridges, clip, glasses, and jacket were introduced into evidence at his jury trial over his objection.

The jury in the Superior Court of Los Angeles County convicted petitioner of armed robbery. A California District Court of Appeal affirmed the conviction, and the Supreme Court of California denied review. The United States Supreme Court granted certiorari, limiting review “to the question of whether evidence was admitted which had been obtained by an unlawful search and seizure” (374 U.S. 826). The Court ultimately concluded that petitioner's conviction must be set aside. Justice Harlan concurred in the Court’s legal analysis but dissented as to disposition, advocating remand to the California courts for a harmless-error determination.

Legal Issues Presented

Whether the warrantless search of petitioner’s hotel room, conducted in his absence and without a warrant, could be justified as a search incident to arrest under the Fourth Amendment.
Whether the hotel night clerk’s consent, and the officers’ reliance on that consent and on the clerk’s apparent authority, rendered the warrantless search reasonable and thus constitutional.
After concluding that evidence was obtained through an unlawful search and erroneously admitted, whether the Supreme Court should reverse the conviction outright or remand the case to the California courts for a determination of harmless error.

Arguments of the Parties

Petitioner’s Arguments

At trial, petitioner objected to the admission of the items seized from his hotel room, asserting that they had been obtained through an unlawful search and seizure.
Before the United States Supreme Court, petitioner, supported by an amicus curiae brief from the American Civil Liberties Union of Southern California urging reversal, sought to have his conviction set aside on the ground that the search violated his constitutional rights.

Respondent’s Arguments

In the California District Court of Appeal, the State successfully argued that the search was justified as incident to a lawful arrest. The state court reasoned that officers had probable cause to arrest prior to entry, were not obliged to accept the clerk’s statement that petitioner was out, could be inferred to have entered to arrest him, and that their observation of the glasses in plain sight led to a further search, making the arrest and search “part of the same transaction.”
In the United States Supreme Court, respondent acknowledged that this incident-to-arrest rationale could not be reconciled with Agnello v. United States and with recent California decisions, and therefore did not defend the search on that ground.
Instead, respondent argued that the search was lawful because it was conducted with the consent of the hotel night clerk, despite the absence of petitioner’s consent, and that the officers reasonably believed the clerk had authority to authorize the search.
Respondent further contended that, even if the search were unlawful and the evidence erroneously admitted, the case should be remanded to the California District Court of Appeal so that it could determine whether the admission of the evidence was harmless error.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Agnello v. United States, 269 U.S. 20	A warrantless search incident to arrest is permitted only if substantially contemporaneous with the arrest and confined to the immediate vicinity of the arrest; the right to search incident to arrest does not extend to other places, such as a separate house, removed in time and place from the arrest.	Used as the controlling authority to reject the California court’s conclusion that the Pomona hotel-room search was incident to petitioner’s Las Vegas arrest; the search was neither contemporaneous with, nor in the vicinity of, the arrest.
Jones v. United States, 357 U.S. 493	A warrantless search “can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions” to the warrant requirement.	Cited (via Rios) to state the basic rule that warrantless searches are per se invalid unless they clearly fall within a recognized exception.
United States v. Jeffers, 342 U.S. 48	Cited with Jones for the rule that warrantless searches must fall within a specific exception; also noted later for distinguishing limited implied consent to entry by hotel staff from police searches for evidence.	First, supports the general warrant requirement and its exceptions; later, helps show that consent by hotel staff to a police search of a guest’s room is insufficient to validate an otherwise unlawful search.
Rios v. United States, 364 U.S. 253	Restates that warrantless searches are valid only if they fit within recognized exceptions, citing Jones and Jeffers.	Quoted to frame the constitutional issue that the State must justify the hotel-room search under an established exception.
Preston v. United States, ante, p. 364	A contemporary case reinforcing limits on what can be considered a search incident to arrest.	Cited to bolster the conclusion that the search of the Pomona hotel room, remote in both time and place from the Las Vegas arrest, could not be treated as incident to that arrest.
Carroll v. United States, 267 U.S. 132	Recognizes the right, incident to a lawful arrest, to contemporaneously search the person arrested and the place where the arrest is made, to find things connected with the crime, weapons, or means of escape.	Cited in explaining the permissible scope of a search incident to arrest, contrasted with the impermissible search of a location removed from the arrest.
Weeks v. United States, 232 U.S. 383	Supports the proposition that there is a right to contemporaneously search a person lawfully arrested and the place of arrest; also foundational to the exclusionary rule.	Used in describing the established but limited scope of searches incident to arrest, which does not authorize searches of distant places.
Ker v. California, 374 U.S. 23, n.13	Cited along with Lustig in connection with the scope of searches incident to arrest.	Referenced to support the Court’s reading of the limits of search-incident authority.
Lustig v. United States, 338 U.S. 74	Earlier case where a hotel manager allowed police to enter and search a guest’s room without a warrant; the search was held unconstitutional; also cited on limits of search-incident doctrine.	Relied on to show that consent by a hotel proprietor cannot validate an otherwise unlawful police search of a guest’s room.
Harris v. United States, 331 U.S. 145 (dissenting opinions)	Illustrates that some Justices previously believed Agnello may have gone too far in defining the permissible bounds of searches incident to arrest.	Cited to note that, despite such dissenting views, the particular Agnello holding relevant here—disallowing searches of distant premises not contemporaneous with arrest—has never been questioned.
United States v. Rabinowitz, 339 U.S. 56 (dissenting opinion)	Similarly reflects dissenting criticism of Agnello’s scope for searches incident to arrest.	Used, together with Harris, to underscore that while Agnello has been debated, its prohibition of remote searches incident to arrest stands intact.
People v. King, 60 Cal.2d 308, 32 Cal.Rptr. 825, 384 P.2d 153	States that a search cannot be justified as incident to an arrest when it is distant from the place of arrest and not contemporaneous with it, citing other California cases.	Quoted to show that modern California authority itself is inconsistent with the District Court of Appeal’s reasoning that the hotel-room search was incident to arrest.
Castaneda v. Superior Court, 59 A.C. 456, 30 Cal.Rptr. 1, 380 P.2d 641	Holds that a search cannot be justified as incident to an arrest when it is remote in place and not contemporaneous.	Cited via People v. King as part of the California authority rejecting expansive incident-to-arrest searches.
Tompkins v. Superior Court, 59 A.C. 75, 27 Cal.Rptr. 889, 378 P.2d 113	Also stands for the rule that a search distant in time and place from the arrest is not a valid search incident to arrest.	Cited through King as confirming California’s alignment with the federal limitation on search-incident doctrine.
People v. Gorg, 45 Cal.2d 776, 291 P.2d 469	Included among California cases recognizing limits on searches incident to arrest.	Cited, via King, to demonstrate that California law does not support treating remote searches as incident to arrest.
Roberts v. Casey, 36 Cal.App.2d Supp. 767, 93 P.2d 654	California authority regarding the powers of hotel proprietors with respect to guests’ rooms.	Referenced to support the conclusion that California law does not give hotel proprietors blanket authority to consent to police searches of guest rooms.
Fox v. Windemere Hotel Apt. Co., 30 Cal.App. 162, 157 P. 820	Another California decision on the relationship between hotel operators and guests, relevant to control over rooms.	Cited to reinforce that California law does not vest general search-consent authority in hotel management.
People v. Vaughan, 65 Cal.App.2d Supp. 844, 150 P.2d 964	California case involving hotels and guest-room rights.	Included among the authorities indicating that hotel personnel lack authority to consent to police searches of guest rooms.
People v. Burke, 208 Cal.App.2d 149, 24 Cal.Rptr. 912	Holds that “[t]he mere fact that a person is a hotel manager does not import an authority to permit the police to enter and search the rooms of her guests.”	Quoted directly to reject the argument that the night clerk’s position gave him authority, under California law, to consent to a search of petitioner’s room.
Jones v. United States, 362 U.S. 257	Warns against importing subtle and historically contingent distinctions of property law—such as those related to agency and possession—into Fourth Amendment analysis governing searches and seizures.	Quoted to reject reliance on “strained applications of the law of agency” and “unrealistic doctrines of ‘apparent authority’” to justify the hotel-room search.
Chapman v. United States, 365 U.S. 610	Holds that police entry and search of a tenant’s house, authorized by the owner/landlord to “view waste,” nonetheless violated the tenant’s Fourth Amendment rights when the officers’ true purpose was to search for evidence.	Used by analogy to show that a landlord’s or proprietor’s authority to enter for limited purposes does not extend to authorizing police searches for evidence against an occupant; otherwise tenants’ or guests’ homes would be secure only at owners’ discretion.
McDonald v. United States, 335 U.S. 451	Recognizes that an occupant of a room in a boarding house is entitled to Fourth Amendment protection against unreasonable searches and seizures.	Cited to equate the constitutional status of boarding-house occupants and hotel guests regarding privacy in their rooms.
Johnson v. United States, 333 U.S. 10	Confirms that a guest in a hotel room has Fourth Amendment protection against unreasonable searches and seizures.	Relied on to support the conclusion that hotel guests stand on a par with tenants and boarding-house occupants in terms of constitutional protection.
Mapp v. Ohio, 367 U.S. 643	Applies the exclusionary rule to the States, requiring that evidence obtained by unconstitutional searches and seizures be excluded in state criminal trials.	Cited for the proposition that, once the search was deemed unlawful, evidence obtained from it could not be admitted, necessitating reversal of the conviction.
Fahy v. Connecticut, 375 U.S. 85	Articulates the harmless-error standard for constitutional violations: whether there is “a reasonable possibility that the evidence complained of might have contributed to the conviction.”	Used by the majority to conclude that admission of the illegally seized evidence was not harmless, and by Justice Harlan to frame his argument that the harmless-error issue should be decided by the state court on remand.
205 Cal.App.2d 108, 22 Cal.Rptr. 718	California District Court of Appeal decision affirming petitioner’s conviction and upholding the search as incident to a lawful arrest, based on probable cause, disbelief of the clerk’s assertion that petitioner was absent, and viewing the arrest and search as part of the same transaction.	Described and then reversed; its incident-to-arrest rationale is rejected as inconsistent with controlling federal and California authority.
374 U.S. 826	Supreme Court order granting certiorari in this case and limiting review to the question whether evidence was admitted that had been obtained by an unlawful search and seizure.	Establishes the narrow scope of the Supreme Court’s review in this case.
375 U.S. 805	Supreme Court order appointing counsel for petitioner.	Referenced in the description of petitioner’s counsel; not relied on for any substantive legal rule in the Court’s analysis.

Court’s Reasoning and Analysis

The Court began by noting that the search of petitioner’s hotel room was conducted without a warrant of any kind. Under its prior decisions, such a search “can survive constitutional inhibition only upon a showing” that it fits one of the carefully defined exceptions to the warrant requirement. The State thus bore the burden of justifying the search as lawful.

The California District Court of Appeal had upheld the search as incident to a lawful arrest, reasoning that the officers already had probable cause to arrest petitioner before entering the room, were not obligated to accept the clerk’s statement that he was absent, may reasonably be inferred to have entered for the purpose of making an arrest, and that the subsequent search and seizure were part of the same transaction. The Supreme Court rejected this theory by reference to Agnello v. United States and related authority. A search incident to arrest is valid only if it is substantially contemporaneous with the arrest and restricted to the immediate vicinity of the arrest; the right to conduct such a warrantless search does not extend to other, remote places. Whatever leeway those concepts might allow, the search of petitioner’s hotel room in Pomona on October 27 could not be “incident” to his arrest in Las Vegas on October 29. The two events were separate in both time and place, making the California court’s incident-to-arrest rationale untenable.

In the Supreme Court, respondent conceded that the California court’s reasoning could not be reconciled with Agnello or with the most recent California decisions, and therefore abandoned that justification. Respondent instead argued that the search was lawful because it was conducted with the consent of the hotel night clerk, and that the officers reasonably believed the clerk had authority to grant such consent.

The Court found this alternative justification unpersuasive. First, it observed that even if a state statute purported to give hotel proprietors blanket authority to authorize police searches of guests’ rooms, there was no indication in the cited California cases that any such statute existed in California. On the contrary, California case law—such as Roberts v. Casey, Fox v. Windemere Hotel Apt. Co., People v. Vaughan, and People v. Burke—indicated that hotel managers do not have inherent authority to consent to police searches of guest rooms. Burke was quoted for the proposition that merely being a hotel manager does not import authority to allow police entry and search of guests’ rooms.

Secondly, the Court rejected the suggestion that the search could nonetheless be deemed reasonable because the officers, relying on the night clerk’s consent, had a reasonable basis to believe he possessed authority to consent. The Court emphasized that Fourth Amendment rights are not to be eroded by “strained applications” of agency law or “unrealistic doctrines of ‘apparent authority.’” Quoting Jones v. United States (362 U.S. 257), the Court stated that distinctions drawn from private property law should not be imported into constitutional search-and-seizure jurisprudence in ways that undermine the protections owed to criminal defendants.

The Court stressed that the constitutional right at stake was petitioner’s, not the hotel’s or the clerk’s. Only the petitioner could waive that right, directly or through an authorized agent. Although the clerk clearly consented to the search, the record contained nothing to indicate that the officers had any basis to believe petitioner had authorized the clerk to permit a police search of his room. The Court thus declined to uphold the search on the theory of agency or apparent authority.

The Court further observed that it had, on at least two prior occasions, refused to uphold police searches of hotel rooms based on the proprietor’s consent. In Lustig v. United States, a hotel manager allowed a warrantless search of a room in the guest’s absence; the search was held unconstitutional. In United States v. Jeffers, an assistant manager similarly permitted officers to search a room, and that search too was held unconstitutional. While Jeffers recognized that a hotel guest gives implied or express permission to certain employees—such as maids, janitors, or repairmen—to enter in the performance of their duties, the Court emphasized that entry for housekeeping or maintenance is fundamentally different from police entry to search for evidence.

Drawing an analogy to Chapman v. United States, where a landlord’s permission could not validate a warrantless police search of a tenant’s house, the Court reasoned that to allow third-party consent beyond limited, customary purposes would leave tenants’ and guests’ homes secure only at the discretion of landlords or hotel employees. In the same way that the search in Chapman exceeded the landlord’s limited authority to “view waste,” the night clerk’s consent here could not authorize a general search for evidence against petitioner.

Finally, the Court reaffirmed that a guest in a hotel room is entitled to the same constitutional protection against unreasonable searches and seizures as a tenant of a house or the occupant of a boarding-house room, citing McDonald v. United States and Johnson v. United States. Allowing hotel employees’ unfettered discretion to determine when police may search would effectively erase that protection. The Court therefore held that the warrantless search of petitioner’s room was unlawful. Under Mapp v. Ohio, evidence obtained in violation of the Fourth Amendment could not be used against petitioner in his state trial.

On the question of harmless error, respondent urged that the case be remanded so the California District Court of Appeal could decide whether admission of the seized evidence was harmless. Applying the standard from Fahy v. Connecticut—whether there is at least a reasonable possibility that the disputed evidence might have contributed to the conviction—the Court concluded that such a possibility clearly existed. The conviction depended in large part on the jury’s assessment of witness credibility, and the incriminating nature of the physical evidence seized and admitted would almost certainly have influenced that assessment. The Court thus declined to remand and instead treated the error as not harmless.

Justice Harlan, concurring in part and dissenting in part, agreed with the Court’s analysis regarding the illegality of the search, but disagreed with the disposition. In his view, Fahy did not “require or justify” the Supreme Court itself deciding harmlessness in the first instance. Since, unlike in Fahy, California had not yet had an opportunity to pass on the harmless-error question, Justice Harlan considered it inconsistent with proper federal–state relations for the Supreme Court to resolve that issue without affording the state courts the first opportunity. He would have vacated the judgment and remanded the case to the California courts for further proceedings.

Holding and Implications

Holding: The Supreme Court held that the warrantless search of petitioner’s hotel room, conducted in his absence and without his consent, was not a valid search incident to arrest and could not be justified by the hotel clerk’s purported consent or any theory of apparent authority. The search was therefore unlawful, and the introduction at trial of the gun, ammunition, glasses, and jacket seized during that search violated petitioner’s constitutional rights. Because there was at least a reasonable possibility that this evidence contributed to the conviction, the error was not harmless. The judgment of the California District Court of Appeal was REVERSED.

Implications: The decision confirms that:

A search incident to arrest is strictly limited to searches substantially contemporaneous with the arrest and confined to its immediate vicinity; searches remote in time or place from the arrest cannot be justified on this basis.
Hotel guests are entitled to the same Fourth Amendment protection in their rooms as tenants and boarding-house occupants enjoy in their dwellings.
Hotel employees, including managers and clerks, lack authority under the Fourth Amendment to consent to police searches of guests’ rooms in the absence of authorization from the guest, and officers may not rely on generalized notions of agency or apparent authority to justify such searches.
When evidence obtained through an unlawful search is central to the prosecution’s case, there is at least a reasonable possibility it contributed to the conviction, and a reviewing court cannot treat its admission as harmless error under the standard articulated in Fahy v. Connecticut.

The opinion’s direct effect is to set aside petitioner’s armed robbery conviction based on the unconstitutional admission of evidence seized from his hotel room. The Court did not articulate any broader new rule beyond applying and reinforcing existing Fourth Amendment and harmless-error principles to the facts presented.

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STONER v. CALIFORNIA.

Police developed a lead near the scene of a robbery which ultimately led them to a hotel where, without a warrant, they searched petitioner's room in his absence, having been given access thereto by a hotel clerk. There they found articles like those associated with the crime by an eyewitness. Petitioner was arrested two days later in another State and following a trial in which the articles were used as evidence was convicted. Held:

1. A search without a warrant can be justified as incident to arrest only if substantially contemporaneous and confined to the immediate vicinity of arrest. Agnello v. United States, 269 U.S. 20, followed. Pp. 484-487.

2. A hotel guest is entitled to the constitutional protection against unreasonable searches and seizures. The hotel clerk had no authority to permit the room search and the police had no basis to believe that petitioner had authorized the clerk to permit the search. Pp. 488-490.

205 Cal.App.2d 108, 22 Cal.Rptr. 718, reversed.

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was convicted of armed robbery after a jury trial in the Superior Court of Los Angeles County, California. At the trial several articles which had been found by police officers in a search of the petitioner's hotel room during his absence were admitted into evidence over his objection. A District Court of Appeal of California affirmed the conviction, and the Supreme Court of California denied further review. We granted certiorari, limiting review "to the question of whether evidence was admitted which had been obtained by an unlawful search and seizure." 374 U.S. 826. For the reasons which follow, we conclude that the petitioner's conviction must be set aside.

205 Cal.App.2d 108, 22 Cal.Rptr. 718.

205 Cal.App.2d, at 116.

The essential facts are not in dispute. On the night of October 25, 1960, the Budget Town Food Market in Monrovia, California, was robbed by two men, one of whom was described by eyewitnesses as carrying a gun and wearing horn-rimmed glasses and a grey jacket. Soon after the robbery a checkbook belonging to the petitioner was found in an adjacent parking lot and turned over to the police. Two of the stubs in the checkbook indicated that checks had been drawn to the order of the Mayfair Hotel in Pomona, California. Pursuing this lead, the officers learned from the Police Department of Pomona that the petitioner had a previous criminal record, and they obtained from the Pomona police a photograph of the petitioner. They showed the photograph to the two eyewitnesses to the robbery, who both stated that the picture looked like the man who had carried the gun. On the basis of this information the officers went to the Mayfair Hotel in Pomona at about 10 o'clock on the night of October 27. They had neither search nor arrest warrants. There then transpired the following events, as later recounted by one of the officers:

"We approached the desk, the night clerk, and asked him if there was a party by the name of Joey L. Stoner living at the hotel. He checked his records and stated `Yes, there is.' And we asked him what room he was in. He stated he was in Room 404 but he was out at this time.

"We asked him how he knew that he was out. He stated that the hotel regulations required that the key to the room would be placed in the mail box each time they left the hotel. The key was in the mail box, that he therefore knew he was out of the room.

"We asked him if he would give us permission to enter the room, explaining our reasons for this.

"Q. What reasons did you explain to the clerk?

"A. We explained that we were there to make an arrest of a man who had possibly committed a robbery in the City of Monrovia, and that we were concerned about the fact that he had a weapon. He stated `In this case, I will be more than happy to give you permission and I will take you directly to the room.'

"Q. Is that what the clerk told you?

"A. Yes, sir.

"Q. What else happened?

"A. We left one detective in the lobby, and Detective Oliver, Officer Collins, and myself, along with the night clerk, got on the elevator and proceeded to the fourth floor, and went to Room 404. The night clerk placed a key in the lock, unlocked the door, and says, `Be my guest.'"

The officers entered and made a thorough search of the room and its contents. They found a pair of horn-rimmed glasses and a grey jacket in the room, and a .45-caliber automatic pistol with a clip and several cartridges in the bottom of a bureau drawer. The petitioner was arrested two days later in Las Vegas, Nevada. He waived extradition and was returned to California for trial on the charge of armed robbery. The gun, the cartridges and clip, the horn-rimmed glasses, and the grey jacket were all used as evidence against him at his trial.

The search of the petitioner's room by the police officers was conducted without a warrant of any kind, and it therefore "can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warrant. Jones v. United States, 357 U.S. 493, 499; United States v. Jeffers, 342 U.S. 48, 51." Rios v. United States, 364 U.S. 253, 261. The District Court of Appeal thought the search was justified as an incident to a lawful arrest. But a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Agnello v. United States, 269 U.S. 20. Whatever room for leeway there may be in these concepts, it is clear that the search of the petitioner's hotel room in Pomona, California, on October 27 was not incident to his arrest in Las Vegas, Nevada, on October 29. The search was completely unrelated to the arrest, both as to time and as to place. See Preston v. United States, decided this day, ante, p. 364.

The court reasoned that the officers had probable cause to arrest the petitioner prior to their entry into the hotel room; that they were not obliged to accept as true the night clerk's statement that the petitioner was not in his room; that "it may be reasonably inferred that they entered his room for the purpose of making an arrest," that their observation of the glasses in plain sight reasonably led them to a further search; and that in the circumstances the arrest and the search and seizure were "part of the same transaction." 205 Cal.App.2d 108, 113, 22 Cal.Rptr. 718, 722.

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape Page 487 from custody, is not to be doubted. See Carroll v. United States. 267 U.S. 132, 158; Weeks v. United States, 232 U.S. 383, 392. . . . But the right does not extend to other places." Id., at 30. See also Ker v. California, 374 U.S. 23, 42, n. 13; Lustig v. United States, 338 U.S. 74, 79-80.

Although some members of this Court have expressed the view that the statement in Agnello defining the permissible bounds of a search incident to arrest went too far, see, e. g., Harris v. United States, 331 U.S. 145, 155, 183, 195 (dissenting opinions); United States v. Rabinowitz, 339 U.S. 56, 68 (dissenting opinion), the Agnello holding as to what may not be searched — a house substantially removed geographically from the place of arrest at a time not substantially contemporaneous with the arrest — has never been questioned in this Court.

In this Court the respondent has recognized that the reasoning of the California District Court of Appeal cannot be reconciled with our decision in Agnello, nor, indeed, with the most recent California decisions. Accordingly, the respondent has made no argument that the search can be justified as an incident to the petitioner's arrest. Instead, the argument is made that the search of the hotel room, although conducted without the petitioner's consent, was lawful because it was conducted with the consent of the hotel clerk. We find this argument unpersuasive.

"[T]he search cannot be justified as incident to the arrest `for it was at a distance from the place thereof and was not contemporaneous therewith.' (Castaneda v. Superior Court, 59 A. C. 456, 459, 30 Cal.Rptr. 1, 3, 380 P.2d 641, 643; Tompkins v. Superior Court, 59 A. C. 75, 77, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Gorg, 45 Cal.2d 776, 781, 291 P.2d 469.)" People v. King, 60 Cal.2d 308, 311, 32 Cal.Rptr. 825, 826, 384 P.2d 153, 155.

Even if it be assumed that a state law which gave a hotel proprietor blanket authority to authorize the police to search the rooms of the hotel's guests could survive constitutional challenge, there is no intimation in the California cases cited by the respondent that California has any such law. Nor is there any substance to the claim that the search was reasonable because the police, relying upon the night clerk's expressions of consent, had a reasonable basis for the belief that the clerk had authority to consent to the search. Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of "apparent authority." As this Court has said,

See Roberts v. Casey, 36 Cal.App.2d Supp. 767, 93 P.2d 654; Fox v. Windemere Hotel Apt. Co., 30 Cal.App. 162, 157 P. 820; People v. Vaughan, 65 Cal.App.2d Supp. 844; 150 P.2d 964. "The mere fact that a person is a hotel manager does not import an authority to permit the police to enter and search the rooms of her guests." People v. Burke, 208 Cal.App.2d 149, 160, 24 Cal.Rptr. 912, 919.

"it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. . . . [W]e ought not to bow to them in the fair administration of the criminal law. To do so would not comport with our justly proud claim of the procedural protections accorded to those charged with crime." Jones v. United States, 362 U.S. 257, 266-267.

It is important to bear in mind that it was the petitioner's constitutional right which was at stake here, and not the night clerk's nor the hotel's. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner's room.

At least twice this Court has explicitly refused to permit an otherwise unlawful police search of a hotel room to rest upon consent of the hotel proprietor. Lustig v. United States, 338 U.S. 74; United States v. Jeffers, 342 U.S. 48. In Lustig the manager of a hotel allowed police to enter and search a room without a warrant in the occupant's absence, and the search was held unconstitutional. In Jeffers the assistant manager allowed a similar search, and that search was likewise held unconstitutional.

It is true, as was said in Jeffers, that when a person engages a hotel room he undoubtedly gives "implied or express permission" to "such persons as maids, janitors or repairmen" to enter his room "in the performance of their duties." 342 U.S., at 51. But the conduct of the night clerk and the police in the present case was of an entirely different order. In a closely analogous situation the Court has held that a search by police officers of a house occupied by a tenant invaded the tenant's constitutional right, even though the search was authorized by the owner of the house, who presumably had not only apparent but actual authority to enter the house for some purposes, such as to "view waste." Chapman v. United States, 365 U.S. 610. The Court pointed out that the officers' purpose in entering was not to view waste but to search for distilling equipment, and concluded that to uphold such a search without a warrant would leave tenants' homes secure only in the discretion of their landlords.

No less than a tenant of a house, or the occupant of a room in a boarding house, McDonald v. United States, 335 U.S. 451, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. Johnson v. United States, 333 U.S. 10. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of the hotel. It follows that this search without a warrant was unlawful. Since evidence obtained through the search was admitted at the trial, the judgment must be reversed. Mapp v. Ohio, 367 U.S. 643. It is so ordered.

The respondent has argued that the case should be remanded to let the California District Court of Appeal decide whether the admission of this evidence was harmless error. But the conviction depended in large part upon the jury's resolution of the question of the credibility of witnesses, and that determination must almost certainly have been influenced by the incriminating nature of the physical evidence illegally seized and erroneously admitted. There is thus at least "a reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86.

MR. JUSTICE HARLAN, concurring in part and dissenting in part.

I entirely agree with the Court's opinion, except as to its disposition of the case. I would remand the case to the California District Court of Appeal so that it may consider whether or not admission of the illegally seized evidence was harmless error. Fahy v. Connecticut, 375 U.S. 85, does not require or justify the course which the Court takes. In Fahy, Connecticut at least had had the opportunity to decide the question of harmless error with respect to the illegally seized evidence there involved; here California has had no such opportunity. For this Court to decide that question as an original matter is, in my opinion, incompatible with proper federal-state relations.

The evidence against the accused included a confession of the crime charged. This Court refused to review the claim, contained in the petition for certiorari, that this confession had been involuntarily made. 374 U.S. 826, ante, p. 484.

Accordingly, I would vacate the judgment below and remand the case to the California courts for further appropriate proceedings.