Wainwright v. City of New Orleans

PETITIONER: Wainwright
RESPONDENT: City of New Orleans
LOCATION: Alamance County

DECIDED BY: Warren Court (1967-1969)

CITATION: 392 US 598 (1968)
ARGUED: Oct 09, 1967 / Oct 10, 1967
DECIDED: Jun 17, 1968

Facts of the case

On October 12, 1964, Wainwright, a student at Tulane University Law School, was out walking around midnight. Two New Orleans Police Department officers stopped him because, in their opinion, he fitted the description of a man suspected of murder. Wainwright told the officers he had identification at home, but not on his person. The officers then asked Wainwright to remove this jacket so that they could search him for a tattoo that the suspected murdered had on his left arm. Wainwright ultimately refused to do so after trying to walk away and some mild verbal sparing. The officers then arrested him on a charge of vagrancy by loitering and frisked him. After Wainwright continued to refuse to remove his jacket at the police station, officers used force to remove it and discovered that he had no tattoo.


Must a person who is unconstitutionally arrested submit to a search of his person? May he offer token resistance?

Media for Wainwright v. City of New Orleans

Audio Transcription for Oral Argument - October 10, 1967 in Wainwright v. City of New Orleans

Audio Transcription for Oral Argument - October 09, 1967 in Wainwright v. City of New Orleans

Earl Warren:

Number 13, Steven R. Wainwright, Petitioner, versus City Of New Orleans.

Mr. Wulf you may proceed with your argument.

Melvin Wulf:

Thank you, Mr. Chief Justice, may it please the Court.

This case is here on certiorari to review a judgment of conviction from the state courts of Louisiana finding petitioner guilty of two counts of breach of the peace for assaulting a police officer.

The central issue revolves around questions of alleged illegal arrest, alleged illegal search and in all such cases the facts of paramount and I would like to review those to begin.

The petitioner just about three years ago today on October 12, 1964 was then a law student of Tulane University Law School in New Orleans.

He lived in the French Quarter in that city.

He left his apartment one night at about midnight to get something to eat.

About four blocks from his apartment, he was stopped by two police officers of the New Orleans Police Department who said they wanted to question him because, he used their words, he “resembled” the composite picture of a man who was somehow rather involved in a murder which have taken place a few days or week ago in the City of New Orleans.

When the petitioner was stopped by the police and asked his name, he freely gave his name and he gave his correct name.

When asked where he lived, he gave his correct address.

He first said he lives in the French Quarter.

He was questioned again.

He gave his précised street and number address.

When the police then asked whether he carried any identification he began to walk away.

The police stopped him, they again asked for identification, and he said, “The law says I must only give you my name and address that's all I'm required to do.”

The police again prevented him from walking away.

One of the police officers at that point went back to the patrol car and got a copy of the composite picture which was the basis for their suspicion that the petitioner was the man that they were looking for.

They also knew in addition to the composite picture that the man they were looking for car -- have a tattoo on his left arm which read, born to raise hell.

They asked the petitioner to remove his jacket so that they could examine his arm.

Before they did that, however, they did search the petitioner.

It's unclear whether they actually searched him for identification or just frisked him.

I think the preponderance of the record at least made me conclude they just frisked rather they didn't put their hands in his pocket as far as I can tell.

But they did ask for identification, he didn't have any on him and they did search him for weapons.

They then asked him to take off his jacket so that they could see whether or not he was tattooed and he refused to do so saying among other things that he didn't want to be humiliated by the police.

At that point, he was put under arrest and there is no debate that the grounds upon which he was arrested at that moment were vagrancy and resisting arrest.

And the charge of vagrancy by loitering was based on the fact, on three facts that the police officer described at the trial below.

One, that the petitioner was standing still for five seconds.

Two, that he couldn't show the police officer any identification and three, he had very little money not no money, just very little money.

And the charge of resisting --