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would be "remediless." 28 It is not seemly that years after a conviction, when time has dulled memories, when death has stilled tongues, when records are unavailable, convicted felons, unburdened by any handicap to a normal presentation of any claim of unfairness in their trial, should be permitted to attack their sentences collaterally by habeas corpus because of errors known to them at the time of trial. When it is shown by the record that a petitioner in a federal court for relief from a state conviction that involves a denial of constitutional rights has without adequate excuse failed to use an available state judicial remedy, although all such remedies are now barred to him by limitation, I think that federal courts should not intervene to correct the error.

In Goto v. Lane, 265 U. S. 393, this Court was asked to consider the issue of whether a group of prisoners, convicted of a crime in the territorial courts of Hawaii, had the right to raise in a habeas corpus proceeding brought in a federal district court alleged deprivations of their constitutional rights. The Court said: "And, if the petitioners permitted the time within which a review on writ of error might be obtained to elapse and thereby lost the opportunity for such a review, that gave no right to resort to habeas corpus as a substitute." 29 The Court found no reasons which, in the exercise of a sound judicial discretion, excused the petitioners from seeking review by writ of error. Consequently, it affirmed the judgment of the district court which had refused to issue the writ. This case is a persuasive precedent in the situation now before us because the state courts of the forty-eight states and the territorial courts of Hawaii stood, in 1924, in

28 Ex parte Hawk, supra, 117-18. See Adams v. McCann, 317 U. S. 269, 274; United States ex rel. Kennedy v. Tyler, 269 U. S. 13, 17. 29 Goto v. Lane, supra, at 402. See also Urquhart v. Brown, 205 U. S. 179; Riddle v. Dyche, 262 U. S. 333; Craig v. Hecht, 263 U. S. 255, 277.

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similar positions in relation to the federal judicial strucAs the scope of review of this Court in criminal cases from state courts and Hawaiian territorial courts was then the same, no valid distinctions can be drawn between Goto's case and the situation now before us.30

It should not be thought that the practice which I would follow represents the sole instance in our jurisprudence of the loss of the right to press constitutional questions because of failure on the part of the individual to raise those issues properly or in time. The principle that federal constitutional questions must be properly raised in state courts before they will be considered by this Court is too well established to require citation. In a case decided this Term, Parker v. Illinois, 333 U. S. 571, Parker was held to have lost his right to raise federal constitutional questions because of state procedure which required that those questions be raised by direct appeal to the state Supreme Court. Parker appealed his case to the intermediate Appellate Court and, consequently, lost any chance of an adjudication by this Court of those issues.31

30 The Act of April 30, 1900, which established a government for the Territory of Hawaii, provided that: "The laws of the United States relating to appeals, writs of error, removal of causes, and other matters and proceedings as between the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the courts of the United States and the courts of the Territory of Hawaii." 31 Stat. 158. In 1925, the Circuit Court of Appeals for the Ninth Circuit was given power to review final decisions from the Supreme Court of Hawaii in all criminal cases “... wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved . . . ." 43 Stat. 936. This power is still retained and cases from the territorial courts now come to this Court only after they have been reviewed by the Ninth Circuit Court of Appeals. 28 U. S. C. § 225.

31 See also Central Union Co. v. Edwardsville, 269 U. S. 190.

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It seems to me that the considerations, analogies, and precedents discussed above admit of only one answer to the basic problem of this case. This petitioner had counsel in ample time to permit a petition for certiorari to this Court. There is not a suggestion in the record of any interference, through his own disabilities or otherwise, with petitioner's right to secure, through counsel of his own choice, review of his allegedly erroneous conviction.32 Therefore, I think that the District Court to whom this petition for a writ of habeas corpus from a conviction in a state court was presented should have refused cognizance of the writ, sua sponte, since the record showed that state remedies were available 33 after the alleged denial of constitutional rights and that the petitioner neglected to take advantage of those remedies." "Available" as here used carries the connotation of ability and opportunity to take advantage of the state procedure.35 Florida's

32 In this the case differs from Williams v. Kaiser, 323 U. S. 471, 472; Tomkins v. Missouri, 323 U. S. 485, 486; Smith v. O'Grady, 312 U. S. 329, 334.

33 A state can leave a procedure open through its own courts by which constitutional questions may be raised at any time. If the state court passes upon the merits, this Court can review the constitutional question upon appeal or petition for certiorari. Herndon v. Lowry, 301 U. S. 242, 247. See Lovelady v. Texas, 333 U. S. 867 (cert. granted), id. 333 U. S. 879 (dismissed), Ex parte Lovelady, Tex. Cr. R., 207 S. W. 2d 396.

34 I would not here decide whether or not this rule applies to cases which are governed by the principle of Moore v. Dempsey, supra, or to the situation in which a state attempts to interfere improperly with the Federal Government.

35 For example, if Wade had not been able to obtain counsel until too late for an appeal, appeal would not have been a remedy "available" to him. See Price v. Johnston, 334 U. S. 266; De Meerleer v. Michigan, 329 U. S. 663; Downer v. Dunaway, 53 F. 2d 586, 589-91.

792588 0-48- -49

REED, J., dissenting.

334 U.S.

failure to object to consideration of the petition for habeas corpus because certiorari was not requested cannot have the effect of authorizing a federal court to examine into the validity of the conviction. The reason for not allowing habeas corpus in such cases does not depend upon state acquiescence but upon the federal judicial policy of non-interference with state criminal administration unless there has been complete use and final exhaustion of state remedies.

On the hypothesis that the decision of the Florida Supreme Court dismissing Wade's appeal from the order of the Circuit Court of Palm Beach County, Florida, was entered on the ground that the remedy in Florida for the denial of the right to counsel was by appeal instead of habeas corpus, Wade stands in no better position. If that was the real basis of the dismissal of the appeal, Wade failed to avail himself of the remedy of appeal then open to him in Florida, though now foreclosed by limitation. No doubt his counsel by motion could have obtained a ruling from the Florida Supreme Court as to whether their dismissal was on a federal or state ground in view of the then rule of this Court in Ex parte Hawk, supra, at 117, that an applicant for habeas corpus in federal courts must exhaust state remedies including appeal or certiorari to this Court. This would have permitted Wade to bring his constitutional question here for review under a regular course of procedure. If the Florida Supreme Court had refused a clarifying order, this Court would have had resources for reaching a conclusion in such a situation. See Loftus v. Illinois, 334 U. S. 804. Consequently, I think that the judgment of the Circuit Court of Appeals should be affirmed and the case remanded to the District Court with instructions that the petition for habeas corpus be dismissed.

THE CHIEF JUSTICE, MR. JUSTICE JACKSON and MR. JUSTICE BURTON join in this dissent.

Syllabus.

TRUPIANO ET AL. v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.

No. 427. Argued March 9, 1948.-Decided June 14, 1948.

Federal agents who had known for at least three weeks that a building on a farm was being used for illicit distilling made a nighttime raid thereon without a warrant of arrest or a search warrant. They were led onto the farm and to the building by the owner, who was an informer. Through an open door they saw one of the petitioners engaged in illicit distilling. An agent entered, arrested him, and seized the contraband apparatus and material. The other petitioners were arrested later. Charged with violations of federal revenue laws, they moved to suppress the evidence as having been obtained in violation of the Fourth Amendment of the Federal Constitution. Held:

1. The arrest was lawful as an arrest of a person who was committing a felony in the discernible presence of a law-enforcement officer at a place where the officer was lawfully present. Pp. 700– 705.

(a) The absence of a warrant of arrest, even though there was sufficient time to obtain one, does not invalidate an arrest under these circumstances. P. 705.

2. The seizure of the contraband property was in violation of the Fourth Amendment and not justified as incident to the lawful arrest. Pp. 705–710.

(a) In the circumstances of this case, there was no excuse for failure to obtain a search warrant. Pp. 705-706, 708.

(b) The fact that the property actually seized was contraband, which doubtless would have been described in a warrant had one issued, does not legalize the seizure. P. 707.

(c) The proximity of the contraband property to the arrested person at the moment of his arrest was a fortuitous circumstance inadequate to legalize the seizure. Pp. 707-708.

(d) The presence or absence of an arrestee at the exact time and place of a foreseeable and anticipated seizure does not determine the validity of that seizure if it occurs without a warrant. P. 708.

(e) The mere fact that there is a valid arrest does not ipso facto legalize a search or seizure without a warrant. P. 708.

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