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's case, 120 U. S. 1, 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. It is hardly necessary to say that this case presents no such exceptional and imperative circumstances. The state courts 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. 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. 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. Syllabus. 269 U.S. AGNELLO ET AL. v. UNITED STATES. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 6. Argued April 23, 1925.-Decided October 12, 1925. 1. 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 from custody, is not to be doubted. P. 30. 2. But this right, which is incidental to the arrest, can not extend to the search of a man's dwelling, several blocks distant from the place of his arrest, after the offense has been committed, and while he is in custody elsewhere. Carroll v. United States, 267 U. S. 132, distinguished. Id. 3. So held, assuming that the house searched, which was the house of one A who had shortly before been arrested with others who were in the act of consummating a conspiracy to violate the AntiNarcotic Act by selling cocaine without having registered and paid the prescribed tax, was the place from which the cocaine sold had been taken by some of the defendants to the place of sale; and that other cocaine, discovered in the house by the search, was there in A's control in violation of the Act, was subject to forfeiture thereunder, and was part of the cocaine constituting the subject-matter of the conspiracy. Id. 4. Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search in the house without a warrant; such searches are unlawful notwithstanding facts unquestionably showing probable cause. P. 32. 5. When properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment. P. 33. 6. Where, by uncontroverted facts, it appears that a search and seizure were made in violation of the Fourth Amendment, there is no reason why one whose rights have been so violated and whom it is sought to incriminate by evidence so obtained, may not invoke protection of the Fifth Amendment immediately, by objection 20 Argument for Petitioners. to the evidence, without having made any application for the return of the thing seized. P. 34. 7. Evidence of an unlawful search of an accused person's house and of seizure therein of an incriminating article, can not be introduced against him at the trial as evidence in rebuttal of his testimony on cross-examination that he never saw the article. P. 35. 8. Where several are tried jointly and convicted for conspiracy, erroneous admission of evidence of an unlawful search and seizure in the dwelling of one will not require a reversal as to the others, if the evidence was adduced only against the one, in proof of guilty knowledge and intent in performing acts with the others for executing the conspiracy, since they would be equally guilty whether he acted as guilty participant or as their innocent agent. P. 35. 290 Fed. 671, reversed in part; affirmed in part. CERTIORARI to a judgment of the Circuit Court of Appeals affirming a conviction and judgment in the District Court on a prosecution of the petitioners (named in the opinion) for conspiracy to violate the Federal Narcotic Tax Act. Mr. George Gordon Battle, with whom Mr. Isaac H. Levy was on the briefs, for petitioners. There was error in the admission, over proper objection, of evidence obtained by an unlawful search and seizure. Youmans v. Commonwealth, 189 Ky. 159; People v. Chiagles, 237 N. Y. 193; Entick v. Carrington, 19 How. St. Trials, 1029; Burns v. Erben, 40 N. Y. 463. People ex rel. Kingsley, 22 Hun, 300, distinguished. This Court has without deviation applied the principle that a search of person or of residence, or a seizure of property or effects, may not be had for the mere purpose of obtaining evidence. In contrast with this simple rule, we have here suggested for the first time a test derived, not from the words of the Amendment, but from an exception to the rule. The reasonableness and justification of the arrest, are made the standards for determining the reasonableness of the search, or of the right to make it. And the exception to the rule that permits a person at the Argument for Petitioners. 269 U.S. time of arrest to be searched for the instruments of his offense, or to deprive him of the means of resistance or escape, grows not only to over-shadow, but to supplant the rule to which it is an exception. With the result that the belief of a revenue agent is made to satisfy the provision of the Constitution that secures home and person against search until a magistrate entrusted with judicial functions is satisfied by oath that there exists probable cause for the search. The decision of the Circuit Court of Appeals is contrary to the decisions of this Court. Boyd v. United States, 116 U. S. 616; Cooley's Const. Lim., p. 374; Hale, 2 P. C., p. 150; Silverthorne Lumber Co. v. United States, 251 U. S. 385; Entick case, supra; Weeks v. United States, 232 U. S. 383; Amos v. United States, 255 U. S. 313. Even upon the principle adopted by the court below, the search by the officers was not justified, since they did not have such probable cause as would have justified the issuance of a search warrant. Cooley Const. Lim., p. 367. The possession of opium is not an offense under the Harrison Act. A warrant to search the premises for narcotics cannot be granted merely upon proof that narcotics will be found upon the premises, but upon proof that a crime against the statute of the United States is being committed upon the premises by the sale of narcotics. Narcotics are not forfeitable to the United States. Search warrants, it is said in Gouled v. United States, 255 U. S. 309, "may not be used as a means of gaining access to a man's house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized, or in the right to the possession of it, or when a valid exercise of the police power renders 20 Argument for the United States. possession of the property by the accused unlawful and provides that it may be taken." The Revenue Agents had no information that justified the issuance of a search warrant upon the ground that a crime was being committed at No. 167 Columbia Street. Assuming that the information they possessed was probable cause to believe that cocaine would be found in the bedroom, then a search warrant issued after the arrest would have been a warrant to search for evidence. No search is reasonable if the officer who makes it would have been unable to make oath or affirmation to facts that would establish probable cause, and would designate the place or person to be searched, Ganci v. United States, 287 Fed. 65. "Probable cause" as used in the Fourth Amendment does not mean mere inference or supposition. The oath or affirmation required must be as to facts. The purpose of an oath is to subject the affiant to prosecution for perjury if he bears false witness. The court or magistrate acts judicially. It is obvious, therefore, that the ground of belief and the basis of probable cause must consist of facts, and not mere suppositions. The Court is confined to the facts shown by the record to have been known to the particular agents who made the search. The search cannot be justified by its results; nor by what the officers who made the search may later have learned from the stool pigeons, Dispenza and Napolitana. The indictment does not state facts sufficient to constitute a crime. It does not charge a conspiracy to sell within the United States. The sale of cocaine without the United States is not an offense. Assistant to the Attorney General Donovan, with whom Solicitor General Mitchell was on the brief, for the United States. The article seized was not a thing which had merely evidentiary value, but a thing inherently vicious, used |