CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT.
Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioner waived trial by jury and was convicted in a Connecticut state court of wilfully injuring a public building in violation of Connecticut General Statutes § 53-45 (a). Specifically, petitioner and his co-defendant Arnold*fn1 were found guilty of having painted swastikas
on a Norwalk, Connecticut, synagogue. The trial took place before our decision in Mapp v. Ohio, 367 U.S. 643, but the conviction was affirmed on appeal after that decision. Connecticut v. Fahy, 149 Conn. 577, 183 A. 2d 256 (1962). At the trial of the case, a can of black paint and a paint brush were admitted into evidence over petitioner's objection. On appeal, the Connecticut Supreme Court of Errors held that the paint and brush had been obtained by means of an illegal search and seizure. It further held that the Mapp decision applies to cases pending on appeal in Connecticut courts at the time that decision was rendered, and, therefore, the trial court erred in admitting the paint and brush into evidence. However, the court affirmed petitioner's conviction because it found the admission of the unconstitutionally obtained evidence to have been harmless error.*fn2 We granted certiorari, 372 U.S. 928 (1963).
On the facts of this case, it is not now necessary for us to decide whether the erroneous admission of evidence obtained by an illegal search and seizure can ever be subject to the normal rules of "harmless error" under the federal standard of what constitutes harmless error. Compare Ker v. California, 374 U.S. 23. We find that the erroneous admission of this unconstitutionally obtained evidence at this petitioner's trial was prejudicial; therefore, the error was not harmless, and the conviction must be reversed. We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed
to the conviction. To decide this question, it is necessary to review the facts of the case and the evidence adduced at trial.
On February 1, 1960, between the hours of 4 and 5 a. m., swastikas were painted with black paint on the steps and walls of a Norwalk synagogue. At about 4:40 a. m., Officer Lindwall of the Norwalk police saw an automobile being operated without lights about a block from the synagogue. Upon stopping the car, Lindwall found that Fahy was driving and Arnold was a passenger. Lindwall questioned Fahy and Arnold about their reason for being out at that hour, and they told him they had been to a diner for coffee and were going home. Lindwall also checked the car and found a can of black paint and a paint brush under the front seat. Having no reason to do otherwise, Lindwall released Fahy and Arnold. He followed the car to Fahy's home. Later the same morning, Lindwall learned of the painting of the swastikas. Thereupon, he went to Fahy's home and -- without having applied for or obtained an arrest or search warrant -- entered the garage under the house and removed from Fahy's car the can of paint and the brush. About two hours later, Lindwall returned to the Fahy home, this time in the company of two other Norwalk policemen. Pursuant to a valid arrest warrant, the officers arrested Fahy and Arnold.
At trial, the court admitted the paint and brush into evidence over petitioner's objection. We assume, as did the Connecticut Supreme Court of Errors, that doing so was error because this evidence was obtained by an illegal search and seizure and was thus inadmissible under the rule of Mapp v. Ohio. Examining the effect of this evidence upon the other evidence adduced at trial and upon the conduct of the defense, we find inescapable the conclusion that the trial court's error was prejudicial and cannot be called harmless.
Obviously, the tangible evidence of the paint and brush was itself incriminating. In addition, it was used to corroborate the testimony of Officer Lindwall as to the presence of petitioner near the scene of the crime at about the time it was committed and as to the presence of a can of paint and a brush in petitioner's car at that time. When Officer Lindwall testified at trial concerning that incident, the following transpired:
"Q. Will you tell the Court what you found in the car?
"A. Checking on the passengers' side, under the front seat I found a small jar of paint and a paint brush.
"Q. Are you able to identify this object I show you?