The Court of Appeals denied petitioner leave to appeal
in
forma pauperis from his conviction for housebreaking and
larceny. The Solicitor General concedes, and, after examining the
record, this Court agrees, that the issue presented -- probable
cause to arrest -- is not one that "can necessarily be
characterized as frivolous."
Held: the judgment is vacated, and the cause is
remanded for reconsideration in the light: of this opinion. Pp.
356 U. S.
674-675.
101 U.S.App.D.C. 386, 249 F.2d 478, judgment vacated and cause
remanded.
PER CURIAM.
The petition for writ of certiorari is granted, as is leave to
proceed
in forma pauperis.
The Court of Appeals denied petitioner leave to appeal
in
forma pauperis a conviction for housebreaking and larceny. 101
U.S.App.D.C. 386, 249 F.2d 478. The Solicitor General concedes that
leave to appeal should have been allowed unless petitioner's
contentions on the merits were frivolous. The only statutory
requirement for the allowance of an indigent's appeal is the
applicant's "good faith." 28 U.S.C. § 1915. In the absence of
some evident improper motive, the applicant's good faith is
established by the presentation of any issue that is not plainly
frivolous.
Farley v. United States, 354 U.
S. 521. The good faith test must not be
Page 356 U. S. 675
into a requirement of a preliminary showing of any particular
degree of merit. Unless the issues raised are so frivolous that the
appeal would be dismissed in the case of a nonindigent litigant,
Fed.Rules Crim.Proc. 39(a), the request of an indigent for leave to
appeal
in forma pauperis must be allowed.
Normally, allowance of an appeal should not be denied until an
indigent has had adequate representation by counsel.
Johnson v.
United States, 352 U. S. 565. In
this case, it appears that the two attorneys appointed by the Court
of Appeals performed essentially the role of
amici curiae.
But representation in the role of an advocate is required. If
counsel is convinced, after conscientious investigation, that the
appeal is frivolous, of course, he may ask to withdraw on that
account. If the court is satisfied that counsel has diligently
investigated the possible grounds of appeal, and agrees with
counsel's evaluation of the case, then leave to withdraw may be
allowed and leave to appeal may be denied. In this case, the
Solicitor General concedes, and, after examining the record, we
agree, that the issue presented -- probable cause to arrest -- is
not one that "can necessarily be characterized as frivolous."
Accordingly, the judgment of the Court of Appeals is vacated, and
the case is remanded for reconsideration in light of this
opinion.