dissenting.
The question presented is whether possession within the district of morphine not in the original stamped package is evidence sufficient to sustain the charge that it was illegally purchased therein. I have no occasion to consider that question. For, in my opinion, the prosecution must fail because officers of the Government instigated the commission of the alleged crime.
These are facts disclosed by the Government’s evidence. In the Western District of Washington, Northern Division,'prisoners awaiting trial for federal offences are commonly detained at King County Jail. The prisoners’ lawyers frequently come there for consultation with clients. At the request of prisoners, the jailer telephones the lawyers to come for that purpose. A small compartment — called the attorneys’ cage — is provided. Prior to the events here in question, the jailer had, upon such request, telephoned Casey, from time to time, to come to see prisoners accused of crimes other than violation of the *422Narcotic Act. He had doubtless telephoned also upon request of prisoners who were accused of these crimes. For Casey had acted as attorney in a number of narcotic cases. The jailer observed — or thought he did — that after Casey came, some of those visited were under the influence of narcotics. He suspected that Casey had brought them the drug. To entrap him, the following scheme was devised by Patterson and Close, federal narcotic officers, and carried out with the aid of George Cicero, a convicted felon and drug addict, then in the jail on a charge of forgery, and Mrs. Nelson, .the alleged sister-in-law of Roy Nelson, another prisoner and drug addict.
On December 29th, Patterson and Close installed a dictaphone in the attorneys’ cage and arranged so that, from an adjacent room, they could both hear conversations in the cage and see occupants. Then they deposited with the superintendent of the jail $20 tO' Cicero’s credit; arranged with him to request the jailer to summon Casey to come to the jail; and also that, when Casey came, Cicero would ask him to procure some morphine and would pay him the $20 for that purpose. The jailer telephoned Casey as requested. Thereafter the federal agents were in waiting. Casey did not come until about 10 o’clock on the morning of the 31st. Cicero talked from the attorneys’ cage with Casey and gave him an order for the $20. By arrangement, Casey talked there also with Roy Nelson, who gave him an order on the superintendent for $50. Both orders were immediately cashed. Mrs. Nelson talked with Casey in the corridor.
The testimony of Patterson, Close, Cicero and Mrs. Nelson, if believed, is sufficient to prove that Cicero and Roy Nelson asked Casey to procure morphine for them; that he agreed to do so; that the money paid was for that purpose; that it was arranged that the morphine should be smuggled into the jail in laundry; and that *423Mrs. Nelson arranged with Casey that she would call at his office in the afternoon. She did call, having first gone to the office of the narcotic agents and conferred with them. She testified that she saw at Casey’s office a Chinaman or a Japanese; that Casey gave her the package for Roy Nelson; and that she took it immediately to the federal narcotic office. A federal narcotic agent who is a chemist testified that upon soaking one of the towels in the package brought to the office by Mrs. Nelson he found that it contained morphine.
I am aware that courts — mistaking relative social values and forgetting that a desirable end cannot justify foul means — have, in their zeal to punish, sanctioned the use of evidence obtained through criminal violation of property and personal rights or by other practices of detectives even more revolting. But the objection here is of a different nature. It does not rest merely upon the character of the evidence or upon the fact that the evidence was illegally obtained. The obstacle to the prosecution lies in the fact that the alleged crime was instigated by officers of the Government; that the act for which the Government seeks to punish the defendant is the fruit of their criminal conspiracy to induce its commission. The Government may set decoys to entrap criminals. But it may not provoke or create a crime and then punish the criminal, its creature. If Casey is guilty of the crime of purchasing 3.4 grains of morphine, on December 31st, as charged, it is because he yielded to the temptation presented by the officers. Their conduct is not a defence to him. For no officer of the Government has power to authorize the violation of an Act of Congress and no conduct of an officer can excuse the violation. But it does not follow that the court must suffer a detective-made criminal to be punished. To permit that would be tantamount to a ratification by the Government of the *424officers’ unauthorized and unjustifiable conduct.1 Compare Gambino v. United States, 275 U. S. 310.
This case is unlike those where a defendant confessedly intended to- commit a crime and the Government having knowledge thereof mez’ely presented the opportunity and set its decoy. So far as appears, the officers had, prior to the events on December 31st, no basis for a belief that Casey was violating the law, except that the jailer harbored a suspicion. Casey took the witness stand and subznitted himself to cross-examination. He testified that he had “never bought, sold, given away or possessed a single grain of morphine, or other opiate” and that he had “never procured, or suggested to anyone else to procure morphine or narcotics of any kind.” He testified that the payments made on orders from Cicero and Roy Nelson were payments on account of services to be rendered as counsel for the defence in the prosecutions against them then pending. He denied every material fact testified to by witnesses for the prosecution and supported his oath by other evidence. The Government’s witnesses admitted that the conversations in the attorneys’ cage were carried on in the ordinary tone of voice; that there was no effort to lower the voice or to speak privately or secretly; and that they could have heard all that was said without the use of the dictaphone. They admitted that when the narcotic agents searched Casey’s office under a search *425warrant, on the evening of December 31st, they did not find any narcotics or any trace of them or any other incriminating article; and that when, at about the same time, they arrested Casey, he was taking supper with his wife and daughter at his home seven miles from Seattle. Whether the charge against Casey is true, we may not enquire. But if under such circumstances, the mere suspicion of the jáiler could justify entrapment, little would be left of the doctrine.
The fact that no objection on the ground of entrapment was taken by the defendant, either below or in this Court, is without legal significance. This prosecution should be stopped, not because some right of Casey’s has been denied, but in order to protect the Government. To protect it from illegal conduct of its officers. To preserve the purity of its courts. In my opinion, the judgment should be vacated with direction to quash the indictment. Compare United States v. Healy, 202 Fed. 349, 350; United States v. Echols, 253 Fed. 862.
Mr. Justice Butler concurs in this opinion.United States v. Adams, 59 Fed. 674; Woo Wai v. United States, 223 Fed. 412; Sam Yick v. United States, 240 Fed. 60, 65; Voves v. United States, 249 Fed. 191; Peterson v. United States, 255 Fed. 433; United States v. Lynch, 256 Fed. 983; Butts v. United States, 273 Fed. 35; United States v. Certain Quantities, etc., 290 Fed. 824; Newman v. United States, 299 Fed. 128; Capuano v. United States, 9 F. (2d) 41; Silk v. United States, 16 F. (2d) 568; Jarl v. United States, 19 F. (2d) 891; Cline v. United States, 20 F. (2d) 494. See also Di Salvo v. United States, 2 F. (2d) 222; United States v. Washington, 20 F. (2d) 160, 162. Compare Blaikie v. Linton, 18 Scot. L. R. 583.