Wainwright v. City of New Orleans

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?

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 —

Abe Fortas:

What’s the basis of — Mr. Wulf, why do you say he was arrested for vagrancy?

Melvin Wulf:

Because that was — the police officer at the trial said that that was the ground upon which he took him into custody.

That was the ground for which he was put on hold.

Abe Fortas:

What proof?

But when they picked him out and brought him in, I thought that they brought him in because he looked like Johnny McTaylor and he refused to take out his jacket so they could see whether he did — the man have identification marks and then when they got him in there they put him on — they got to charge him.

Well, isn’t there a difference between the basis on which the police caused a person on the sidewalk and take him in hence — and whether or not there are difference between the reason why they do that and based on the charged with which he is booked, the charge for he is booked?

Melvin Wulf:

I think my answer to that is no, Your Honor.

I think that —

Abe Fortas:

Is that the charge for which he’s booked to this government for all legal purposes.

Melvin Wulf:

Yes, sir.

Because that is the only justification seems to me.

That is the — that is the crime for which the police have to justify taking the individual into custody.

Abe Fortas:

Well here isn’t that a matter of fact that they took him into custody because they thought he looked like Johnny McTaylor, whatever they call his name is and they had no way of identifying him and he refused to take out his jacket.

Melvin Wulf:

I think that’s true.

I think as a matter of — as a matter of actual fact that’s why they took him in.

I don’t think there’s any question about that.

They wanted to find out whether he was Johnny McTaylor.

But I think the record is clear that the arresting officer said that not — not only did they charged him of vagrancy when they brought him to the station but I think the record is clear that at that moment he determined to arrest him not on the murder charge which he couldn’t but on the vagrancy charge.

Abe Fortas:

Well, I think this testimony is very self-sufficient in both ways on the record, as I remember.

But in any event the police officers have the following choices and they wanted him to just take out his jacket.

Either to let him go or assuming that he was not McTaylor or to — may then take his jacket right then and there by physical force or take him into the police station, is that right?

Melvin Wulf:

Yes, that there are other alternatives.

What were they?

Melvin Wulf:

We suggest several of them in our brief.

One, they could have kept the man under surveillance, they could have kept the petitioner under surveillance while the other police officer checked with the police station to see whether they could get any other identifying characteristics of the man they were looking for.

Two, the way that they had —

Abe Fortas:

In what way they have the man in surveillance?

Melvin Wulf:

Well, they could have just followed him, Your Honor, they could have just followed him.

Wherever he might have been going they could have followed him and this is the standard police technique —

They could have stand there and get hamburger with him?

Melvin Wulf:

They could have — true.

Or stood outside and watched them eat the hamburger.

Perhaps — perhaps more simply, Wainwright gave the police officers what turned out to be his correct name and address.

They could have gone look in a phone — New Orleans phonebook to see whether that man’s name and address was there.

I think those practically what they could have done and what petitioner himself suggested to them afterwards when he was taken to the police station before — before he was taken into the police station was that he go back to where he said he lived and produce whatever identification he had.

He presumably had ample of identification back home.

The police said that they didn’t — they didn’t ask petitioner to do that during the street corner confrontation.

The petitioner suggested to them just before they got to the station house while they are in the patrol car and the police officer said, “No, we didn’t do it then because he was then under arrest,” which is no justification as far as I can see that — it would not have been too late at that moment it seems to me for them to correct whatever errors they have made and to return to the man’s home in order to find — in order to secure the identification they were looking for.

Abe Fortas:

Right, in order to tell him or his family.

Just let me ask you one more question, and you’re challenging the arrest?

Melvin Wulf:

We must, yes.

Abe Fortas:

That is to say that do you think that even though the police thought that he looked like McTaylor and even though he refused to take out his jacket so that he could satisfy themselves, that they had no authority to arrest in a constitutional manner.

Melvin Wulf:

In the constitutional manner we say there was no probable cause to arrest him.

We have a tangential argument that if they did have a cause to arrest him that under the circumstances they could — should not have forcibly removed his jacket on the police station without a search warrant, but I come to that later on.

But I think basically or perhaps most simply — most simply, it turns on the validity of the arrest.

After Wainwright was taken to the police station he was put in the interrogation room, twice asked for the right to call his lawyer.

He was denied the right to call his lawyer.

He was questioned for some period of time, 10 or 15 minutes before he was taken out into the main police station to be booked.

When he was taken out to be booked, he again asked to call his lawyer, and the lieutenant in charge in the station said you have to be booked first.

He was booked and then the lieutenant said take off your jacket, Wainwright refused to take off his jacket and either four or five police officers and what developed into a scuffle forcibly removed Wainwright’s jacket and saw then that he had no tattoo.

The facts of the scuffle are relevant too to a later part of the argument, I’ll return to when I reach it.

Finally, after his jacket was forcibly removed he was allowed to call his lawyer but before his lawyer arrived, Wainwright himself was taken off to another building to — for further processing and didn’t see his lawyer until after he was released.

It’s a matter of record, it’s — it’s in the city’s brief and opposition to the petition for certiorari that the lawyer himself was arrested because of the disagreement he got into when he got to the police station but that is interesting if not relevant to the case at bar.

They were finally both released about quarter to five in the morning.

In December of that year, the charges of vagrancy, resisting arrest and reviling the police, which was an envisional charge because of something that Wainwright had said to the police when he was first picked up and put into the police car, but it’s rather minor, were brought to prosecution and at the close of the state’s case, there were several adjournments and it went on until May.

In May at the close of the state’s case, those original three charges were discontinued and in the words of the respondents they have been “long abandoned.”

The same day that they were discontinued, three new charges were lodged against the petitioner, two charges of disturbing the peace by assault on the police officer and one charge of resisting an officer.

It’s the former two charges which are here now.

The third charge was reversed on appeal in the Criminal District Court in Louisiana.

I just want to briefly dispose of the suggestion, I think it’s my own perhaps that this case has anything to do with the stop and frisk cases which are going to be argued here later on, I don’t think they do, I think they’re clearly distinguishable at the point where what might be characterized as the stop and frisk of which Wainwright was a victim, nothing had happened.

Melvin Wulf:

It was a fruitless stop and frisk that was when they first asked him to remove his jacket and didn’t, and also frisked him and found that he didn’t had any weapons.

At that point, that would have been the end of it normally.

That would have been the end of an ordinary stop and frisk, but the police here and I said it would not have been the end of it, nothing more would have been heard of it.

Except of the — because of the persistence of the police here in trying to determine who this man was by learning whether or not he had a tattoo on his arm.

This goes well beyond stop and frisk and it seems to me to be a case of detention for investigation without probable cause.

Now, we begin by asserting that there was no probable cause.

In my colloquy with Mr. Justice Fortas he suggested that the arrest — the validity of the arrest could be — should be tested by the real reason for Wainwright’s arrest.

I disagree.

I think that the question of whether or not this arrest is valid must turn on the reason given by the police and justification at trial of taking this man into custody and I think it bears little argument that to charge a man with vagrancy by loitering because he was seen standing still on the street for five seconds must fall as a matter of due process under Louisville v. Thompson and Garner v. — versus Louisiana, and I will not belabor that point.

If the Court feels that it must assess the question of the arrest in terms of the murder, in terms of the Wainwright being taken into custody as a murder suspect, I think there are two, the arrest must fall because it doesn’t have — because of the absence of probable cause.

What the police had — the information that they had was a composite picture and a photograph of a man who – by their own admission wasn’t known to them to be a murder but only was somehow or other involved in a murder that had taken place some time before.

When they stopped, the composite picture apparently also had some identification about the man they were looking for in terms of his height, weight and approximate age and the fact that he had a tattoo.

Well, the petitioner was stopped simply because of the bare resemblance, we, we, we don’t — the record — we can’t learn from the record how close the — a resemblance there was between the composite and Wainwright because although the composite is in the record there isn’t a photograph of Wainwright in the record, so we don’t know.

Byron R. White:

Let’s assume the arrest was for resisting an officer.

What about that?

Melvin Wulf:

Because of the events that occurred on the street, Your Honor.

Byron R. White:


Melvin Wulf:

I think that would have to fall as a matter of due process also.

It seems just turning away from an officer before he was under arrest.

It’s debatable exactly —

Byron R. White:

Yes, but he refused — he refused to take off his jacket.

Melvin Wulf:

Ah, If — If you would say that — if — if you would make the arrest in effect retroactive that’s the time he was first stopped, I would think that the resisting arrest under the circumstances of that case —

Thurgood Marshall:

Mr. Wulf, suppose the story was that the suspect was bald head Wainwright had a hat on and the police officers ask him to take his hat off.

Melvin Wulf:

And if he refused to do so?

Thurgood Marshall:


Melvin Wulf:

I would hope that if Wainwright had been my client that he had taken his hat off.

Thurgood Marshall:

What’s the difference between that one in case and this one?

Melvin Wulf:

I think it turns very intimately —

Thurgood Marshall:

What’s the difference between asking a man to raise his jacket or take his hat off?

Melvin Wulf:

I think it turns very intimately Your Honor in about the sensibility of an individual’s right to privacy.

Melvin Wulf:

I think there’s —

Byron R. White:

Why do you — why do you shy away from the hat question.

I mean what if he did say I refuse to take my hat off and the officers try to make him take his hat off and he resisted them, now what’s that — I would assume under your — the argument in your brief that he had a perfectly right to do that.

And the officers had no — do you know of any law in Louisiana under which at that point he is — that the — that the officer is entitled to arrest him?

Melvin Wulf:

No, sir.

Byron R. White:

For effusing to take his hat off?

Melvin Wulf:

No, sir.

You’re quite right, I should not have shied away from that.

The answer should have been — my argument would have been precisely the same that any order of that sort by a police officer could under the circumstances have been legally refused by the petitioner.

Byron R. White:

And he could be reasonable forced to that in your argue — in your view, you could use reasonable force to resist it.

Melvin Wulf:


Yes, sir.

In the ab — in the absence of probable cause to arrest — the absence of probable cause.

Byron R. White:

You don’t — you don’t think that’s a — you don’t think there that you could make an offense of resisting the officer, resisting an officer out of an official request to take off his hat and refusing to do so.

Melvin Wulf:

No, I think the police have a perfect right to ask.

I think the victim or however you might want to characterize, there is a perfect right to refuse, yes.

Byron R. White:

And at that point did the state try to make that an offense of resisting an officer that that attempt would be invalid.

Melvin Wulf:

No ques — no question at all under the decisions of this case Your Honor, yes.

I think the most telling — I think the most telling point in establishing that the police did not have a probable cause to arrest for the crime of murder was the fact that they justified the arrest themselves on the ground of vagrancy not on the ground of murder.

And whether or not they actually took the man in at the initial stages because of the murder, because of the vagrancy, the fact that they put charge of the prosecute him for vagrancy.

It seems to me requires that the standard for determining whether or not there was just a probable cause in the first place taking him for murder must be measured against the city’s own statement that they arrested him then and there for vagrancy.

Earl Warren:

We’ll recess now Mr. Wulf.