Nathaniel C. Patterson, a duly enrolled The District Court exercised its discretion Seneca Indian residing on the Cattaraugus Indian Reservation in the state of New York, died testate leaving a widow (a white woman), a daughter and three sons. The widow was named in the will as sole executrix. The will was regularly admitted to probate by the surrogate of Erie county, N. Y., and letters of administration granted. The widow thereupon presented her letters of administration together with the will to the peacemakers' court of the Cattaraugus Reservation, where the deceased had left real property, asking that the probate of the will *15 be recognized or the *will itself be admitted there to probate. The peacemakers' court, holding that the widow and her children were not members of the Seneca Nation, and therefore, under tribal custom, not entitled to inherit lands in the reservation, declined to grant either prayer, but appointed Pierce administrator. Pierce brought an action in the peacemakers' court to eject the widow from the property and to set aside the probate of the will by the surrogate of Erie county. The widow appeared specially and objected to the jurisdiction of the peacemakers' court. That court overruled the objection and entered judgment against her for possession of the property. Upon the application of the widow, the Supreme Court of the state issued its final order prohibiting Pierce, administrator, and the members of the peacemakers' court from taking any further steps in the matter. In violation of that order, Pierce caused a mandate of the peacemakers' court to be issued and delivered to Warren Kennedy, marshal of the reservation, under which the latter took possession of the property. Thereupon contempt proceedings were had before the state Supreme Court, as a result of which Pierce and Kennedy were adjudged guilty of a contempt of that court in having wilfully disobeyed its prohibition order and sentenced to pay a fine in the sum of $184.50 with imprisonment as the alternative. Upon their failure to pay the fine, Pierce and Kennedy were ordered committed to the Erie county jail, and to that end were taken into custody by the sheriff of Erie county. A writ of habeas corpus was immediately sought in the federal District Court for the Western District of New York, upon the grounds that Pierce and Kennedy were Seneca Indians and their detention was in violation of their rights under treaties with the Seneca Nation; that both the Indians and the lands in question were outside the sovereignty of the state, and consequently of the jurisdiction of its courts; and that by their arrest and detention they 16 were denied the due *process of law guaranteed by the Fifth Amendment to the Constitution of the United States. The writ was sued out by the relator Walter S. Kennedy, father of Warren. in favor of issuing the writ principally upon the ground that Pierce and Warren Kennedy, being Seneca Indians, were wards of the nation and entitled to the protection of the federal courts. But, in deciding the case upon the merits, that court pointed out that as early as 1849 the state of New York, at the earnest request of the Indians themselves, had assumed jurisdiction over them and their lands and possessions within the state; that to that end state laws had been enacted for their civil government and the regulation of their internal affairs; that the peacemakers' courts on the several reservations were created by state law; and that the courts of the state had uniformly held that the power of the state in respect of these matters had never been doubted or questioned, and such sovereignty as the Indians may have formerly possessed had been merged and lost in the sovereignty of the state, under which they must look for protection of life and property. In the absence of congressional action, the District Court concluded that these state laws and decisions, by long acquiescence on the part of the Indians, had become rules of property within the state and were controlling. The writ was accordingly dismissed. United States v. Waldow, 294 F. 111. [1] We are asked to enter upon a review of these matters and of the historical relations of the Indians to the nation and to the state of New York from a time long anterior to the adoption of the federal Constitution. The conclusion we have reached makes this unnecessary. It is enough for present purposes to say that the state of New York, as early as 1849, at the request of the Indians, assumed governmental control of them and their property, passed laws creating and defining the jurisdiction of the 17 *peacemakers' courts, administered these laws through its courts, and that Congress has never undertaken to interfere with this situation or to assume control. Whether the state judicial power extends to controversies in respect of the succession of Indian lands within the boundaries of the state, whether the peacemakers' court in the exerthority of the state Supreme Court, whether cise of its jurisdiction is subject to the authe subject-matter of these controversies and proceedings was one exclusively within the control of the national government and beyond the authority of the state, are all questions which, under the circumstances recited, it is peculiarly appropriate should in the first instance be left to be dealt with by the courts of the state. In so far as they involve treaty or constitutional rights, those courts are as competent as the federal courts to decide them. In the regular and ordinary course of procedure, the power of the highest state court in respect of such questions should first be exhausted. When that has been done, the authority of this court may (46 S.Ct.) be invoked to protect a party against any adverse decision involving a denial of a federal right properly asserted by him. [2] The rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person assert ing that he is being held in custody by the authority of a state court in violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist. Ex parte Royall, 117 U. S. 241, 250253, 6 S. Ct. 734, 29 L. Ed. 868; In re Wood, 140 U. S. 278, 289, 11 S. Ct. 738, 35 L. Ed. 505; In re Frederich, 149 U. S. 70, 77, 78, *18 13 S. Ct. 793, 37 L. Ed. 653; New York v. Eno, 155 U. S. 89, 98, 15 S. Ct. 30, 39 L. Ed. 80; Whitten v. Tomlinson, 160 U. S. 231, 240-242, 16 S. Ct. 297, 40 L. Ed. 406; Baker v. Grice, 169 U. S. 284, 290, 18 S. Ct. 323, 42 L. Ed. 748; Tinsley v. Anderson, 171 U. S. 101, 104, 105, 18 S. Ct. 805, 43 L. Ed. 91; Davis v. Burke, 179 U. S. 399, 401-403, 21 S. Ct. 210, 45 L. Ed. 249; Riggins v. United States, 199 U. S. 547, 549, 26 S. Ct. 147, 50 L. Ed. 303; Drury v. Lewis, 200 U. S. 1, 6, 26 S. Ct. 229, 50 L. Ed. 343; Glasgow v. Moyer, 225 U. S. 420, 428, 32 S. Ct. 753, 56 L. Ed. 1147; Johnson v. Hoy, 227 U. S. 245, 247, 33 S. Ct. 240, 57 L. Ed. 497. In New York v. Eno, supra, a federal Circuit Court had discharged a prisoner held by virtue of the judgment of a state court on the ground that the offenses for which he was indicted were exclusively cognizable under the authority of the United States. This court reversed the judgment, holding that the state court of original jurisdiction was competent to decide the questions in the first instance and that "Its obligation to render such decision as will give full effect to the supreme law of the land and protect any right secured by it to the accused is the same that rests upon the courts of the United States. When the claim of the accused of immunity from prosecution in a state court for the offenses charged against him has been passed upon by the highest court of New York in which it can be determined, he may then, if the final judgment of that court be adverse to him, invoke the jurisdiction of this court for his protection in respect of any federal right distinctly asserted by him, but which may be denied by such judgment." This general rule is emphasized by a consideration of the few cases where this court has upheld the allowance of the writ. They were all cases of exceptional urgency. Such, for example, were In re Neagle, 135 U. S. 1, 10 S. Ct. 658, 34 L. Ed. 55, where a deputy marshal of the United States was discharged on habeas corpus from state custody on a charge of homicide committed in the performance of his duty to guard and protect a justice of this court; In re Loney, 134 U. S. 372, 10 S. Ct. 584, 33 L. Ed. 949, where petitioner, charged with perjury in testimony given in a contested congressional election *19 case, was discharged *upon the ground that to permit him to be prosecuted in the state courts would greatly impede and embarrass the administration of justice in a national tribunal; and Wildenhus' Case, 120 U. S. 1, 7 S. Ct. 385, 30 L. Ed. 565, where a member of the crew of a foreign merchant vessel was discharged from the custody of the state because the arrest was contrary to the provisions of an international treaty. Thus, it will be seen, two of these cases involved interferences by the state authorities with the operations of departments of the general government, and the other concerned the delicate relations of that government with a foreign nation. [3] It is hardly necessary to say that this case presents no such exceptional and imThe state courts perative circumstances. proceeded under laws passed in response to the request of the Indian Nation of which contemners are members-laws which apparently for the greater part of a century had not been seriously challenged as impeding the authority of the federal government. Under these conditions, contemners, deliberately having taken the risk of setting at defiance the judgment of the state court, must look for redress, if they are entitled to any, to the appropriate and authorized appellate remedies. They are not entitled to relief in a federal court by the writ of habeas corpus. [4] Something is said in the opinion of the court below to the effect that the relators pleaded lack of ability to bear the expense of proceedings for their protection in the state courts or to furnish bonds required on appeal. We are unable to find anything in the record to support this claim, but, even if it were true, it would afford no basis for a different conclusion. Markuson v. Boucher, 175 U. S. 184, 185, 187, 20 S. Ct. 76, 44 L. Ed. 124. The court below should have discharged the writ upon the foregoing grounds, rather than upon the merits; but, the result being the same, the judgment is Affirmed. and seizures 7-Search of house of alleged conspirator, several blocks from place of arrest, held unlawful, and not justifiable as incidental to arrest. 7. Criminal law 683 (1)-Evidence of unlawful seizure held not admissible in rebuttal of defendant's testimony. In prosecution for conspiracy to violate Harrison Act, evidence of unlawful search and seizure of can of cocaine in room of one defendant held not admissible in rebuttal of testimony by that defendant on cross-examination that he had never seen such can, then produced, by prosecuting attorney. 8. Criminal law 1169(5)—Improper admission of evidence as to one defendant held not to require reversal as to codefendants. Erroneous admission against one defendant of evidence unlawfully seized held not to require reversal as to codefendants, against whom the court specifically instructed the evidence could not be considered. Writ of Certiorari to Circuit Court of Ap After arrest for conspiracy to violate Har-peals, Second Circuit. rison Act, search without warrant of house of one of alleged conspirators, which was several blocks distant from house where arrest was made, held violative of Const. Amend. 4, and not justifiable, as incidental to lawful arrest. 3. Searches and seizures 3-Belief that article sought is concealed in dwelling house furnishes no justification for search without warrant. Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for search of that place without a warrant, and this not withstanding facts unquestionably showing probable cause. 4. Criminal law 393 (1)-Searches and seizures 7-Fifth Amendment of Constitution protects against incrimination by use of evidence seized in violation of Fourth Amendment. Properly invoked, Const. Amend. 5, protects every person from incrimination by use of evidence obtained through search or seizure made in violation of Amendment 4. 5. Criminal law 693-Basis stated of rule requiring application before trial for return of evidence unlawfully seized. Necessity for application before trial for return of evidence obtained by unlawful search arises from rule that court will not pause in criminal case to determine collateral issues as to how evidence was obtained. 6. Criminal law 693-Where uncontroverted facts show unlawful search and seizure of evidence, application for its return before trial unnecessary. Where uncontroverted facts show that evidence was obtained by search and seizure made in violation of Const. Amend. 4, a defendant whose rights have been so violated, and who is sought to be incriminated by evidence so obtained, may invoke protection of Amendment 5, without prior application for return of things seized, particularly where he denied any knowledge of it prior to its proffer in evidence. Thomas Agnello and Frank Agnello and others were convicted of conspiracy to violate the Harrison Act. To review the judgment of the Circuit Court of Appeals (290 F. 671), affirming judgment of conviction, defendants bring certiorari. Judgment as to Frank Agnello reversed, and as to the other defendants affirmed. *21 *Messrs. Battle, Vandiver, Levy & Van Tine, of New York City (Messrs. George Gordon Battle and Isaac H. Levy, both of New York City, of counsel), for petitioners. $23 *Messrs. James M. Beck, Sol. Gen., of Washington, D. C., and William J. Donovan, Asst. Atty. Gen., for the United States. *27 *Mr. Justice BUTLER delivered the opinion of the Court. Thomas Agnello, Frank Agnello, Stephen Alba, Antonio Centorino, and Thomas Pace were indicted in the District Court, Eastern District of New York, under section 37, Criminal Code, 35 Stat. 1088, 1096, c. 321 (Comp. St. § 10201) for a conspiracy to violate the Harrison Act, 38 Stat. 785, c. 1, as amended *28 by sections 1006, 1007, 1008 of the Revenue Act of 1918, c. 18, 40 Stat. 1057, 1130 (Comp. St. Ann. Supp. 1919, §§ 6287g, 62871, 6287r). The indictment charges that defendants conspired together to sell cocaine without having registered with the collector of internal Revenue and without having paid the prescribed tax. The overt acts charged are that defendants had cocaine in their possession, solicited the sale of it, met in the home of defendant Alba at 138 Union street, Brooklyn, and made arrangements for the purpose of selling it, brought a large quantity of it to that place, and sold it in violation of the act. The jury found defendants guilty. Each was sentenced to serve two years in the penitentiary and to pay a fine of $5,000. The Circuit Court of Appeals affirmed the judgment. 290 F. 671. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (46 S.Ct.) The evidence introduced by the government | taken to Alba's house. Frank Agnello testiwas sufficient to warrant a finding of the fied on direct examination that he received following facts: Pasquale Napolitano and the packages from Centorino, but that he Nunzio Dispenza, employed by government did not know their contents, and that he revenue agents for that purpose, went to the would not have carried them, if he had known home of Alba, Saturday, January 14, 1922, that they contained cocaine or narcotics. On and there offered by buy narcotics from Alba cross-examination, he said that he had never and Centorino. Alba gave them some sam- seen narcotics. Then, notwithstanding obples. They arranged to come again on Mon fetch it. *30 day following. They returned at the time jection *by defendants, the prosecuting attoragreed. Six revenue agents and a city police-ney produced the can of cocaine which the man followed them and remained on watch government claimed was seized in Agnello's outside. Alba left the house and returned bedroom and asked him whether he had ever with Centorino. They did not then produce seen it. He said he had not, and specifically any drug. After discussion and the refusal stated he had never seen it in his house. In of Napolitano and Dispenza to go to Centor- rebuttal, over objections of defendants, the ino's house to get the drug, Centorino went to government was permitted to put in the eviHe was followed by some of the dence of the search and seizure of the can of agents. He first went to his own house, 172 cocaine in Frank Agnello's room, which thereColumbia street; thence to 167 Columbia tofore had been offered and excluded. street, one part of which was a grocery store belonging to Pace and Thomas Agnello, and another part of which, connected with the grocery store, was the home of Frank Agnello and Pace. In a short time, Centorino, Pace, and the Agnellos came out of the last-mentioned place, and all went to Alba's house. Looking through the windows, those on watch *29 saw *Frank Agnello produce a number of small packages for delivery to Napolitano and saw the letter hand over money to Alba. Upon the apparent consummation of the sale, the agents rushed in and arrested all the defendants. They found some of the packages on the table where the transaction took place and found others in the pockets of Frank Agnello. All contained cocaine. On searching Alba, they found the money given him by Napolitano. The case involves the questions whether search of the house of Frank Agnello and seizure of the cocaine there found, without a search warrant, violated the Fourth Amendment, and whether the admission of evidence of such search and seizure violated the Fifth Amendment. The Fourth Amendment is: "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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." And, as a part of its case in chief, the government offered testimony tending to show [1, 2] The right without a search warrant that, while some of the revenue agents were contemporaneously to search persons lawfultaking the defendants to the police station, ly arrested while committing crime and to the others and the city policeman went to the search the place where the arrest is made in home of Centorino and searched it, but did order to find and seize things connected with not find any narcotics; that they then went the crime as its fruits or as the means by to 167 Columbia street and searched it, and which it was committed, as well as weapons in Frank Agnello's bedroom found a can of and other things to effect an escape from cocaine, which was produced and offered in custody is not to be doubted. See Carroll v. evidence. The evidence was excluded on the United States, 267 U. S. 132, 158, 45 S. Ct. ground that the search and seizure were 280, 69 L. Ed. 543, Weeks v. United States, made without a search warrant. In defense, 232 U. S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652, Centorino and others gave testimony to the L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. effect that the packages of cocaine which The legality of the arrests or of the searches were brought to and seized in Alba's house and seizures made at the home of Alba is not at the time of the arrests had been furnished questioned. Such searches and seizures natto Centorino by Dispenza to induce an ap- urally and usually appertain to and attend parent sale of cocaine to Napolitano; that such arrests. But the right does not extend is, to incite crime or acts having the appear- to other places. Frank Agnello's *house was ance of crime for the purpose of entrapping several blocks distant from Alba's house, and punishing defendants. Centorino testi- where the arrest was made. When it was enfied that, after leaving Napolitano and Dis-tered and searched, the conspiracy was ended penza with Alba at the latter's home, he went to his own house and got the packages of cocaine which had been given him by Dispenza, and took them to 167 Columbia street, and there gave them to Frank Agnello to be #31 and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. See Silverthorne Lumber Co. v. United States, 251 U. S. 385, 391, 40 S. Ct. 182, 64 L. Ed. 319; People v. Conway, 225 Mich. 152, 195 N. W. 679; Gamble v. Keyes, 35 S. D. 645, 650, 153 N. W. 888. Under the Harrison Act (section 8 [Comp. St. § 6287n], and section 1 as amended by section 1006 [Comp. St. Ann. Supp. 1919, § 6287g]) it is unlawful for any person, who has not registered and paid a special tax, to have cocaine in his possession, and all unstamped packages of such drug found in his possession are subject to forfeiture. We assume, as contended by the government, that defendants obtained from Frank Agnello's house the cocaine that was taken to Alba's house and there seized; that the can of cocaine which later was found in Agnello's house was unlawfully in his control and subject to seizure; and that it was a part of the cocaine which was the subject-matter of the conspiracy. Lumber Co. v. United States, supra, 391; Gouled v. United States, 255 U. S. 298, 308, 41 S. Ct. 261, 65 L. Ed. 647. The protection of the Fourth Amendment extends to all equally-to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. Congress has never passed an act purporting to authorize the search of a house without a warrant. On the other hand, special limitations have been set about the obtaining of search warrants for that purpose. Thus, the National Prohibition Act, approved October 28, 1919, c. 85, tit. 2, § 25, 41 Stat. 305, 315 (Comp. St. Ann. Supp. 1923, § 101381⁄2m), provides that no search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor or is in part used for The government cites Carroll v. United business purposes, such as store, shop, saloon, States, supra; but it does not support the restaurant, hotel, or boarding house. And search and seizure complained of. That case later, to the end that government employees involved the legality of a search of an auto- without a warrant shall not invade the homes mobile and the seizure of intoxicating liquors being transported therein in violation of the of the people and violate the priva*cies of National Prohibition Act (Comp. St. Ann. life, Congress made it a criminal offense, punSupp. 1923, § 101384 et. seq.). The search ishable by heavy penalties, for any officer, and seizure were made by prohibition agents agent or employee of the United States enwithout a warrant. After reference to vari-gaged in the enforcement of any law to ous acts of Congress relating to the seizure of contraband goods, the court said (page 153, 45 S. Ct. 285): "We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a *search of a ship, motorboat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." It was held that: *32 *33 search a private dwelling house without a warrant directing such search. Act Nov. 23, 1921, c. 134, § 6, 42 Stat. 222, 223 (Comp. St. Ann. Supp. 1923, § 10184a). Safeguards similar to the Fourth Amendment are deemed necessary and have been provided in the constitution or laws of every state of the Union.1 [3] We think there is no state statute authorizing the search of a house without a warrant; and in a number of state laws recently enacted for the enforcement of prohibition in respect of intoxicating liquors, there are provisions similar to those in section 25 of the National Prohibition Act. Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. See Entick v. Carrington, 19 Howard's State Trials, 1030, 1066. Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause. See Temperani v. United States (C. C. A.) 299 F. And on that ground the court held the 365; United States v. Rembert (D. C.) 284 F. search and seizure without warrant justified. 996, 1000; Connelly v. United States (D. C.) While the question has never been directly 275 F. 509; McClurg v. Brenton, 123 Iowa, decided by this court, it has always been as-368, 372, 98 N. W. 881, 65 L. R. A. 519, 101 sumed that one's house cannot lawfully be Am. St. Rep. 323; People v. Margolis, 220 searched without a search warrant, except as an incident to a lawful arrest therein. Boyd v. United States, 116 U. S. 616, 624, et seq., 630, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, supra, 393; Silverthorne "The facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched." Page 162, 45 S. Ct. 288. 1 See page 1268, Index Digest of State Constitutions (prepared for New York State Constitutional Convention Commission, 1915); also, section 8, c. 6, Consolidated Laws, New York, as amended by Laws 1923, c. 80. |