WARDEN, MARYLAND PENITENTIARY v. HAYDEN.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
Argued April 12, 1967.
Decided May 29, 1967.
The police were informed that an armed robbery had occurred and that the suspect, respondent, had thereafter entered a certain house. Minutes later they arrived there and were told by respondent's wife that she had no objection to their searching the house. Certain officers arrested respondent in an upstairs bedroom when it became clear he was the only man in the house. Others simultaneously searched the first floor and cellar. One found weapons in a flush tank; another, looking "for a man or the money," found in a washing machine clothing of the type the suspect was said to have worn. Ammunition was also found. These items were admitted into evidence without objection at respondent's trial which resulted in his conviction. After unsuccessful state court proceedings respondent sought and was denied habeas corpus relief in the District Court. The Court of Appeals found the search lawful, but reversed on the ground that the clothing seized during the search was immune from seizure, being of "evidential value only." Held:
Franklin Goldstein, Assistant Attorney General of Maryland, argued the cause for petitioner. With him on the brief was Francis B. Burch, Attorney General.
Albert R. Turnbull, by appointment of the Court, 385 U.S. 985 , argued the cause and filed a brief for respondent, pro hac vice, by special leave of Court.
Ralph S. Spritzer, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Nathan Lewin and Beatrice Rosenberg.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We review in this case the validity of the proposition that there is under the Fourth Amendment a "distinction [387 U.S. 294, 296] between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime." 1
A Maryland court sitting without a jury convicted respondent of armed robbery. Items of his clothing, a cap, jacket, and trousers, among other things, were seized during a search of his home, and were admitted in evidence without objection. After unsuccessful state court proceedings, he sought and was denied federal habeas corpus relief in the District Court for Maryland. 2 A divided panel of the Court of Appeals for the Fourth Circuit reversed. 363 F.2d 647. The Court of Appeals believed that Harris v. United States, 331 U.S. 145, 154 , sustained the validity of the search, but held that respondent was correct in his contention that the clothing seized was improperly admitted in evidence because the items had "evidential value only" and therefore were not [387 U.S. 294, 297] lawfully subject to seizure. We granted certiorari. 385 U.S. 926 . We reverse. 3
The officers spread out through the first and second floors and the cellar in search of the robber. Hayden was found in an upstairs bedroom feigning sleep. He was arrested when the officers on the first floor and in the cellar reported that no other man was in the house. Meanwhile an officer was attracted to an adjoining bathroom by the noise of running water, and discovered a shotgun and a pistol in a flush tank; another officer who, according to the District Court, "was searching the cellar for a man or the money" found in a washing machine a jacket and trousers of the type the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found under the mattress of Hayden's bed, and ammunition for the shotgun was found in a bureau drawer in Hayden's room. All these items of evidence were introduced against respondent at his trial.
We do not rely upon Harris v. United States, supra, in sustaining the validity of the search. The principal issue in Harris was whether the search there could properly be regarded as incident to the lawful arrest, since Harris was in custody before the search was made and the evidence seized. Here, the seizures occurred prior to or immediately contemporaneous with Hayden's arrest, as part of an effort to find a suspected felon, armed, within the house into which he had run only minutes before the police arrived. The permissible scope of search must, therefore, at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape.
It is argued that, while the weapons, ammunition, and cap may have been seized in the course of a search for weapons, the officer who seized the clothing was searching neither for the suspect nor for weapons when he looked into the washing machine in which he found the clothing. But even if we assume, although we do not decide, that the exigent circumstances in this case made lawful a search without warrant only for the suspect or his weapons, it cannot be said on this record that the officer who found the clothes in the washing machine was not searching for weapons. He testified that he was searching for the man or the money, but his failure to state explicitly that he was searching for weapons, in the absence of a specific question to that effect, can hardly be accorded controlling weight. He knew that the robber was armed and he did not know that some [387 U.S. 294, 300] weapons had been found at the time he opened the machine. 5 In these circumstances the inference that he was in fact also looking for weapons is fully justified.
We have examined on many occasions the history and purposes of the Amendment. 9 It was a reaction to the evils of the use of the general warrant in England and the writs of assistance in the Colonies, and was intended to protect against invasions of "the sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U.S. 616, 630 , from searches under indiscriminate, general authority. Protection of these interests was assured by prohibiting all "unreasonable" searches and seizures, and by requiring the use of warrants, which particularly describe "the place to be searched, and the persons or things to be seized," thereby interposing "a magistrate between the citizen and the police," McDonald v. United States, supra, 335 U.S., at 455 .
Nothing in the language of the Fourth Amendment supports the distinction between "mere evidence" and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the "right of the people to be secure in their persons, houses, papers, and effects . . .," without regard to the use to which any of these things are applied. This "right of the people" is certainly unrelated to the "mere evidence" limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, [387 U.S. 294, 302] fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact. Moreover, nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same "papers and effects" may be "mere evidence" in one case and "instrumentality" in another. See Comment, 20 U. Chi. L. Rev. 319, 320-322 (1953).
In Gouled v. United States, 255 U.S. 298, 309 , the Court said that search warrants "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 . . . ." The Court derived from Boyd v. United States, supra, the proposition that warrants "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 possession of the property by the accused unlawful and provides that it may be taken," 255 U.S., at 309 ; that is, when the property is an instrumentality or fruit of crime, or contraband. Since it was "impossible to say, on the record . . . that the Government had any interest" in the papers involved "other than as evidence against the accused . . .," "to permit them to be used in evidence would be, in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself." Id., at 311.
The items of clothing involved in this case are not "testimonial" or "communicative" in nature, and their introduction therefore did not compel respondent to become [387 U.S. 294, 303] a witness against himself in violation of the Fifth Amendment. Schmerber v. California, 384 U.S. 757 . This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.
The Fourth Amendment ruling in Gouled was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals. The common law of search and seizure after Entick v. Carrington, 19 How. St. Tr. 1029, reflected Lord Camden's view, derived no doubt from the political thought of his time, that the "great end, for which men entered into society, was to secure their property." Id., at 1066. Warrants were "allowed only where the primary right to such a search and seizure is in the interest which the public or complainant may have in the property seized." Lasson, The History and Development of the Fourth Amendment to the United States Constitution 133-134. Thus stolen property - the fruits of crime - was always subject to seizure. And the power to search for stolen property was gradually extended to cover "any property which the private citizen was not permitted to possess," which included instrumentalities of crime (because of the early notion that items used in crime were forfeited to the State) and contraband. Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif. L. Rev. 474, 475. No separate governmental interest in seizing evidence to apprehend and convict criminals was recognized; it was required that some property interest be asserted. The remedial structure also reflected these dual premises. Trespass, replevin, and the other means of [387 U.S. 294, 304] redress for persons aggrieved by searches and seizures, depended upon proof of a superior property interest. And since a lawful seizure presupposed a superior claim, it was inconceivable that a person could recover property lawfully seized. As Lord Camden pointed out in Entick v. Carrington, supra, at 1066, a general warrant enabled "the party's own property [to be] seized before and without conviction, and he has no power to reclaim his goods, even after his innocence is cleared by acquittal."
The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be "unreasonable" within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts. See Jones v. United States, 362 U.S. 257, 266 ; Silverman v. United States, 365 U.S. 505, 511 . This shift in emphasis from property to privacy has come about through a subtle interplay of substantive and procedural reform. The remedial structure at the time even of Weeks v. United States, 232 U.S. 383 , was arguably explainable in property terms. The Court held in Weeks that a defendant could petition before trial for the return of his illegally seized property, a proposition not necessarily inconsistent with Adams v. New York, 192 U.S. 585 , which held in effect that the property issues involved in search and seizure are collateral to a criminal proceeding. 10 The remedial structure finally escaped the bounds of common law property limitations in Silverthorne [387 U.S. 294, 305] Lumber Co. v. United States, 251 U.S. 385 , and Gouled v. United States, supra, when it became established that suppression might be sought during a criminal trial, and under circumstances which would not sustain an action in trespass or replevin. Recognition that the role of the Fourth Amendment was to protect against invasions of privacy demanded a remedy to condemn the seizure in Silverthorne, although no possible common law claim existed for the return of the copies made by the Government of the papers it had seized. The remedy of suppression, necessarily involving only the limited, functional consequence of excluding the evidence from trial, satisfied that demand.
The development of search and seizure law since Silverthorne and Gouled is replete with examples of the transformation in substantive law brought about through the interaction of the felt need to protect privacy from unreasonable invasions and the flexibility in rulemaking made possible by the remedy of exclusion. We have held, for example, that intangible as well as tangible evidence may be suppressed, Wong Sun v. United States, 371 U.S. 471, 485 -486, and that an actual trespass under local property law is unnecessary to support a remediable violation of the Fourth Amendment, Silverman v. United States, supra. In determining whether someone is a "person aggrieved by an unlawful search and seizure" we have refused "to import into the law . . . subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical." Jones v. United States, supra, 362 U.S., at 266 . And with particular relevance here, we have given recognition to the interest in privacy despite the complete absence of a property claim by suppressing the very items which at [387 U.S. 294, 306] common law could be seized with impunity: stolen goods, Henry v. United States, 361 U.S. 98 ; instrumentalities, Beck v. Ohio, 379 U.S. 89 ; McDonald v. United States, supra; and contraband, Trupiano v. United States, 334 U.S. 699 ; Aguilar v. Texas, 378 U.S. 108 .
The premise in Gouled that government may not seize evidence simply for the purpose of proving crime has likewise been discredited. The requirement that the Government assert in addition some property interest in material it seizes has long been a fiction, 11 obscuring the reality that government has an interest in solving crime. Schmerber settled the proposition that it is reasonable, within the terms of the Fourth Amendment, to conduct otherwise permissible searches for the purpose of obtaining evidence which would aid in apprehending and convicting criminals. The requirements of the Fourth Amendment can secure the same protection of privacy [387 U.S. 294, 307] whether the search is for "mere evidence" or for fruits, instrumentalities or contraband. There must, of course, be a nexus - automatically provided in the case of fruits, instrumentalities or contraband - between the item to be seized and criminal behavior. Thus in the case of "mere evidence," probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. Cf. Kremen v. United States, 353 U.S. 346 . But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit.
The remedy of suppression, moreover, which made possible protection of privacy from unreasonable searches without regard to proof of a superior property interest, likewise provides the procedural device necessary for allowing otherwise permissible searches and seizures conducted solely to obtain evidence of crime. For just as the suppression of evidence does not entail a declaration of superior property interest in the person aggrieved, thereby enabling him to suppress evidence unlawfully seized despite his inability to demonstrate such an interest (as with fruits, instrumentalities, contraband), the refusal to suppress evidence carries no declaration of superior property interest in the State, and should thereby enable the State to introduce evidence lawfully seized despite its inability to demonstrate such an interest. And, unlike the situation at common law, the owner of property would not be rendered remediless if "mere evidence" could lawfully be seized to prove crime. For just as the suppression of evidence does not in itself necessarily entitle the aggrieved person to its return (as, for example, contraband), the introduction of "mere evidence" does not in [387 U.S. 294, 308] itself entitle the State to its retention. Where public officials "unlawfully seize or hold a citizen's realty or chattels, recoverable by appropriate action at law or in equity . . .," the true owner may "bring his possessory action to reclaim that which is wrongfully withheld." Land v. Dollar, 330 U.S. 731, 738 . (Emphasis added.) See Burdeau v. McDowell, 256 U.S. 465, 474 .
The survival of the Gouled distinction is attributable more to chance than considered judgment. Legislation has helped perpetuate it. Thus, Congress has never authorized the issuance of search warrants for the seizure of mere evidence of crime. See Davis v. United States, 328 U.S. 582, 606 (dissenting opinion of Mr. Justice Frankfurter). Even in the Espionage Act of 1917, where Congress for the first time granted general authority for the issuance of search warrants, the authority was limited to fruits of crime, instrumentalities, and certain contraband. 40 Stat. 228. Gouled concluded, needlessly it appears, that the Constitution virtually limited searches and seizures to these categories. 12 After Gouled, pressure [387 U.S. 294, 309] to test this conclusion was slow to mount. Rule 41 (b) of the Federal Rules of Criminal Procedure incorporated the Gouled categories as limitations on federal authorities to issue warrants, and Mapp v. Ohio, 367 U.S. 643 , only recently made the "mere evidence" rule a problem in the state courts. Pressure against the rule in the federal courts has taken the form rather of broadening the categories of evidence subject to seizure, thereby creating considerable confusion in the law. See, e. g., Note, 54 Geo. L. J. 593, 607-621 (1966).
The rationale most frequently suggested for the rule preventing the seizure of evidence is that "limitations upon the fruit to be gathered tend to limit the quest itself." United States v. Poller, 43 F.2d 911, 914 (C. A. 2d Cir. 1930). But privacy "would be just as well served by a restriction on search to the even-numbered days of the month. . . . And it would have the extra advantage of avoiding hair-splitting questions . . . ." Kaplan, op. cit. supra, at 479. The "mere evidence" limitation has spawned exceptions so numerous and confusion so great, in fact, that it is questionable whether it affords meaningful protection. But if its rejection does enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of "a neutral and detached magistrate [387 U.S. 294, 310] . . . ." Johnson v. United States, 333 U.S. 10, 14 . The Fourth Amendment allows intrusions upon privacy under these circumstances, and there is no viable reason to distinguish intrusions to secure "mere evidence" from intrusions to secure fruits, instrumentalities, or contraband.
The judgment of the Court of Appeals is
[ Footnote 2 ] Hayden did not appeal from his conviction. He first sought relief by an application under the Maryland Post Conviction Procedure Act which was denied without hearing. The Maryland Court of Appeals reversed and remanded for a hearing. 233 Md. 613, 195 A. 2d 692. The trial court denied relief after hearing, concluding "that the search of his home and the seizure of the articles in question were proper." His application for federal habeas corpus relief resulted, after hearing in the District Court, in the same conclusion.
[ Footnote 3 ] The State claims that, since Hayden failed to raise the search and seizure question at trial, he deliberately bypassed state remedies and should be denied an opportunity to assert his claim in federal court. See Henry v. Mississippi, 379 U.S. 443 ; Fay v. Noia, 372 U.S. 391 . Whether or not the Maryland Court of Appeals actually intended, when it reversed the state trial court's denial of post-conviction relief, that Hayden be afforded a hearing on the merits of his claim, it is clear that the trial court so understood the order of the Court of Appeals. A hearing was held in the state courts, and the claim denied on the merits. In this circumstance, the Fourth Circuit was correct in rejecting the State's deliberate-bypassing claim. The deliberate-bypass rule is applicable only "to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Fay v. Noia, supra, 372 U.S., at 438 . (Emphasis added.) But see Nelson v. California, 346 F.2d 73, 82 (C. A. 9th Cir. 1965).
[ Footnote 4 ] The state postconviction court found that Mrs. Hayden "gave the policeman permission to enter the home." The federal habeas corpus court stated it "would be justified in accepting the findings [387 U.S. 294, 298] of historical fact made by Judge Sodaro on that issue . . .," but concluded that resolution of the issue would be unnecessary, because the officers were "justified in entering and searching the house for the felon, for his weapons and for the fruits of the robbery."
[ Footnote 5 ] The officer was asked in the District Court whether he found the money. He answered that he did not, and stated: "By the time I had gotten down into the basement I heard someone say upstairs, `There's a man up here.'" He was asked: "What did you do then?" and answered: "By this time I had already discovered some clothing which fit the description of the clothing worn by the subject that we were looking for . . . ." It is clear from the record and from the findings that the weapons were found after or at the same time the police found Hayden.
[ Footnote 6 ] People v. Thayer, 63 Cal. 2d 635, 408 P.2d 108, cert. denied, 384 U.S. 908 ; State v. Bisaccia, 45 N. J. 504, 213 A. 2d 185. Compare United States v. Poller, 43 F.2d 911, 914 (C. A. 2d Cir. 1930).
[ Footnote 7 ] E. g., Chafee, The Progress of the Law, 1919-1922, 35 Harv. L. Rev. 673 (1922); Kamisar, The Wiretapping-Eavesdropping Problem: A Professor's View, 44 Minn. L. Rev. 891, 914-918 (1960); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif. L. Rev. 474, 478 (1961); Comment, 45 N.C. L. Rev. 512 (1967); Comment, 66 Col. L. Rev. 355 (1966); Comment, 20 U. Chi. L. Rev. 319 (1953); Comment, 31 Yale L. J. 518 (1922). Compare, e. g., Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361 (1921); Note, 54 Geo. L. J. 593 (1966).
[ Footnote 8 ] This Court has approved the seizure and introduction of items having only evidential value without, however, considering the validity of the distinction rejected today. See Schmerber v. California, 384 U.S. 757 ; Cooper v. California, 386 U.S. 58 .
[ Footnote 9 ] E. g., Stanford v. Texas, 379 U.S. 476, 481 -485; Marcus v. Search Warrant, 367 U.S. 717, 724 -729; Frank v. Maryland, 359 U.S. 360, 363 -365. See generally Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937); Landynski, Search and Seizure and the Supreme Court (1966).
[ Footnote 10 ] Both Weeks and Adams were written by Justice Day, and joined by several of the same Justices, including Justice Holmes.
[ Footnote 11 ] At common law the Government did assert a superior property interest when it searched lawfully for stolen property, since the procedure then followed made it necessary that the true owner swear that his goods had been taken. But no such procedure need be followed today; the Government may demonstrate probable cause and lawfully search for stolen property even though the true owner is unknown or unavailable to request and authorize the Government to assert his interest. As to instrumentalities, the Court in Gouled allowed their seizure, not because the Government had some property interest in them (under the ancient, fictitious forfeiture theory), but because they could be used to perpetrate further crime. 255 U.S., at 309 . The same holds true, of course, for "mere evidence"; the prevention of crime is served at least as much by allowing the Government to identify and capture the criminal, as it is by allowing the seizure of his instrumentalities. Finally, contraband is indeed property in which the Government holds a superior interest, but only because the Government decides to vest such an interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government seeks to prevent and deter crime.
[ Footnote 12 ] Gouled was decided on certified questions. The only question which referred to the Espionage Act of 1917 stated: "Are papers of . . . evidential value . . ., when taken under search warrants issued pursuant to Act of June 15, 1917, from the house or office of the person so suspected, - seized and taken in violation of the 4th amendment?" Gouled v. United States, No. 250, Oct. Term, 1920, Certificate, p. 4. Thus the form in which the case was certified made it difficult if not impossible "to limit the decision to the sensible proposition of statutory construction, that Congress had not as yet authorized the seizure of purely evidentiary material." Chafee, op. cit. supra, at 699. The Government assumed the validity of petitioner's argument that Entick v. Carrington, Boyd v. United States, and other authorities established the constitutional illegality of seizures of private papers for use as evidence. Gouled v. United States, supra, Brief for the United States, p. 50. It argued, complaining of the absence of a record, that the papers introduced in evidence were instrumentalities of crime. The Court ruled that the [387 U.S. 294, 309] record before it revealed no government interest in the papers other than as evidence against the accused. 255 U.S., at 311 . Significantly, Entick v. Carrington itself has not been read by the English courts as making unlawful the seizure of all papers for use as evidence. See Dillon v. O'Brien, 20 L. R. Ir. 300; Elias v. Pasmore, 1934. 2 K. B. 164. Although Dillon, decided in 1887, involved instrumentalities, the court did not rely on this fact, but rather on "the interest which the State has in a person guilty (or reasonably believed to be guilty) of a crime being brought to justice . . . ." 20 L. R. Ir., at 317.
MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE joins, concurring.
While I agree that the Fourth Amendment should not be held to require exclusion from evidence of the clothing as well as the weapons and ammunition found by the officers during the search, I cannot join in the majority's broad - and in my judgment, totally unnecessary - repudiation of the so-called "mere evidence" rule.
Our Constitution envisions that searches will ordinarily follow procurement by police of a valid search warrant. Such warrants are to issue only on probable cause, and must describe with particularity the persons or things to be seized. There are exceptions to this rule. Searches may be made incident to a lawful arrest, and - as today's decision indicates - in the course of "hot pursuit." But searches under each of these exceptions have, until today, been confined to those essential to fulfill the purpose of the exception: that is, we have refused to permit use of articles the seizure of which could not be strictly tied to and justified by the exigencies which excused the warrantless search. The use in evidence of weapons seized in a "hot pursuit" search or search incident to arrest satisfies this criterion because of the need to protect the arresting officers from weapons to which the suspect might resort. The search for and seizure of fruits are, of course, justifiable on independent grounds: The fruits [387 U.S. 294, 311] are an object of the pursuit or arrest of the suspect, and should be restored to their true owner. The seizure of contraband has been justified on the ground that the suspect has not even a bare possessory right to contraband. See, e. g., Boyd v. United States, 116 U.S. 616, 623 -624 (1886); United States v. Kirschenblatt, 16 F.2d 202, 203 (C. A. 2d Cir. 1926) (L. Hand, J.).
Similarly, we have forbidden the use of articles seized in such a search unless obtained from the person of the suspect or from the immediate vicinity. Since a warrantless search is justified only as incident to an arrest or "hot pursuit," this Court and others have held that its scope does not include permission to search the entire building in which the arrest occurs, or to rummage through locked drawers and closets, or to search at another time or place. James v. Louisiana, 382 U.S. 36 (1965); Stoner v. California, 376 U.S. 483, 486 -487 (1964); Preston v. United States, 376 U.S. 364, 367 (1964); United States v. Lefkowitz, 285 U.S. 452 (1932); Go-Bart Co. v. United States, 282 U.S. 344, 358 (1931); Agnello v. United States, 269 U.S. 20, 30 -31 (1925); United States v. Kirschenblatt, supra. 1
In the present case, the articles of clothing admitted into evidence are not within any of the traditional categories which describe what materials may be seized, either with or without a warrant. The restrictiveness of these categories has been subjected to telling criticism, 2 and [387 U.S. 294, 312] although I believe that we should approach expansion of these categories with the diffidence which their imposing provenance commands, I agree that the use of identifying clothing worn in the commission of a crime and seized during "hot pursuit" is within the spirit and intendment of the "hot pursuit" exception to the search-warrant requirement. That is because the clothing is pertinent to identification of the person hotly pursued as being, in fact, the person whose pursuit was justified by connection with the crime. I would frankly place the ruling on that basis. I would not drive an enormous and dangerous hole in the Fourth Amendment to accommodate a specific and, I think, reasonable exception.
As my Brother DOUGLAS notes, post, opposition to general searches is a fundamental of our heritage and of the history of Anglo-Saxon legal principles. Such searches, pursuant to "writs of assistance," were one of the matters over which the American Revolution was fought. The very purpose of the Fourth Amendment was to outlaw such searches, which the Court today sanctions. I fear that in gratuitously striking down the "mere evidence" rule, which distinguished members of this Court have acknowledged as essential to enforce the Fourth Amendment's prohibition against general searches, the Court today needlessly destroys, root and branch, a basic part of liberty's heritage.
[ Footnote 1 ] It is true that this Court has not always been as vigilant as it should to enforce these traditional and extremely important restrictions upon the scope of such searches. See United States v. Rabinowitz, 339 U.S. 56, 68 -86 (1950) (Frankfurter, J., dissenting); Harris v. United States, 331 U.S. 145, 155 -198 (1947) (dissenting opinions).
[ Footnote 2 ] See, e. g., People v. Thayer, 63 Cal. 2d 635, 408 P.2d 108 (1965) (Traynor, C. J.), cert. denied, 384 U.S. 908 (1966); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif. L. Rev. 474, 478 (1961).
MR. JUSTICE DOUGLAS, dissenting.
We start with the Fourth Amendment which provides:
(1) One creates a zone of privacy that may not be invaded by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.
(2) A second creates a zone of privacy that may be invaded either by the police in hot pursuit or by a search incident to arrest or by a warrant issued by a magistrate on a showing of probable cause.
The first has been recognized from early days in Anglo-American law. Search warrants, for seizure of stolen property, though having an ancient lineage, were criticized even by Coke. Institutes Bk. 4, pp. 176-177.
As stated by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029, 1067, even warrants authorizing seizure of stolen goods were looked upon with disfavor but "crept into the law by imperceptible practice." By the time of Charles II they had burst their original bounds and were used by the Star Chamber to find evidence among the files and papers of political suspects. Thus in the trial of Algernon Sidney in 1683 for treason "papers, which were said to be found in my [Sidney's] house, were produced as another witness" (9 How. St. Tr. 818, 901) and the defendant was executed. Id., at 906-907. From this use of papers as evidence there grew up the practice of the Star Chamber empowering a person "to search in all places, where books were printing, in order to see if the printer had a licence; and if upon such search he found any books which he suspected to be libellous against the church or state, he was to seize them, and carry them before the proper magistrate." Entick v. Carrington, supra, at 1069. Thus the general warrant became a powerful instrument [387 U.S. 294, 314] in proceedings for seditious libel against printers and authors. Ibid. John Wilkes led the campaign against the general warrant. Boyd v. United States, 116 U.S. 616, 625 . Wilkes won (Entick v. Carrington, supra, decided in 1765); and Lord Camden's opinion not only outlawed the general warrant (id., at 1072) but went on to condemn searches "for evidence" with or without a general warrant:
This decision, in the very forefront when the Fourth Amendment was adopted, underlines the construction that it covers something other than the form of the warrant 1 and creates a zone of privacy which no government official may enter.
The complaint of Bostonians, while including the general warrants, went to the point of police invasions of personal sanctuaries:
This is borne out by what happened in the Congress. In the House the original draft read as follows:
Thus it is clear that the Fourth Amendment has two faces of privacy, a conclusion emphasized by Lasson, The History and Development of the Fourth Amendment to the United States Constitution 103 (1937):
That is not our question. Our question is whether the Government, though armed with a proper search warrant or though making a search incident to an arrest, may seize, and use at the trial, testimonial evidence, whether it would otherwise be barred by the Fifth Amendment or would be free from such strictures. The teaching of Boyd is that such evidence, though seized pursuant to a lawful search, is inadmissible.
That doctrine had its full flowering in Gouled v. United States, 255 U.S. 298 , where an opinion was written by Mr. Justice Clarke for a unanimous Court that included both Mr. Justice Holmes and Mr. Justice Brandeis. The prosecution was for defrauding the Government under procurement contracts. Documents were taken from defendant's business office under a search warrant and used at the trial as evidence against him. Stolen or forged papers could be so seized, the Court said; so could lottery tickets; so could contraband; so could property in which the public had an interest, for reasons tracing back to warrants allowing the seizure of stolen property. But the papers or documents fell in none of those categories and the Court therefore held that even though they had been taken under a warrant, they were inadmissible at the trial as not even a warrant, though otherwise proper and regular, could be used "for the purpose of making search to secure evidence" of a crime. Id., at 309. The use of those documents against the accused might, of course, violate the Fifth Amendment. Id., at 311. But whatever may be the intrinsic nature of the evidence, [387 U.S. 294, 320] the owner is then "the unwilling source of the evidence" (id., at 306), there being no difference so far as the Fifth Amendment is concerned "whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers." Ibid.
We have, to be sure, breached that barrier, Schmerber v. California, 384 U.S. 757 , being a conspicuous example. But I dissented then and renew my opposing view at this time. That which is taken from a person without his consent and used as testimonial evidence violates the Fifth Amendment.
That was the holding in Gouled; and that was the line of authority followed by Judge Simon Sobeloff, writing for the Court of Appeals for reversal in this case. 363 F.2d 647. As he said, even if we assume that the search was lawful, the articles of clothing seized were of evidential value only and under Gouled could not be used at the trial against petitioner. As he said, the Fourth Amendment guarantees the right of the people to be secure "in their persons, houses, papers, and effects, against unreasonable searches and seizures." Articles of clothing are covered as well as papers. Articles of clothing may be of evidential value as much as documents or papers.
Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in United States v. Poller, 43 F.2d 911, 914:
Some seek to explain Entick v. Carrington on the ground that it dealt with seditious libel and that any search for political tracts or letters under our Bill of Rights would be unlawful per se because of the First [387 U.S. 294, 322] Amendment and therefore "unreasonable" under the Fourth. That argument misses the main point. A prosecution for seditious libel would of course be unconstitutional under the First Amendment because it bars laws "abridging the freedom of speech, or of the press." The First Amendment also has a penumbra, for while it protects only "speech" and "press" it also protects related rights such as the right of association. See NAACP v. Alabama, 357 U.S. 449, 460 , 462; Bates v. Little Rock, 361 U.S. 516, 523 ; Shelton v. Tucker, 364 U.S. 479, 486 ; Louisiana v. NAACP, 366 U.S. 293, 296 ; and NAACP v. Button, 371 U.S. 415, 430 -431. So it could be held, quite apart from the Fourth Amendment, that any probing into the area of opinions and beliefs would be barred by the First Amendment. That is the essence of what we said in Watkins v. United States, 354 U.S. 178, 197 :
The constitutional philosophy is, I think, clear. The personal effects and possessions of the individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the long arm of the law, from any rummaging by police. Privacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses. The article may be a non-descript work of art, a manuscript of a book, a personal account book, a diary, invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill of Rights believed that every individual needs both to communicate with others and to keep his affairs to himself. That dual aspect of privacy means that the individual should have the freedom to select for himself the time and circumstances when he will share his secrets with others and decide the extent of that sharing. 2 This is his prerogative [387 U.S. 294, 324] not the States'. The Framers, who were as knowledgeable as we, knew what police surveillance meant and how the practice of rummaging through one's personal effects could destroy freedom.
It was in that tradition that we held in Griswold v. Connecticut, 381 U.S. 479 , that lawmakers could not, as respects husband and wife at least, make the use of contraceptives a crime. We spoke of the pronouncement in Boyd v. United States that the Fourth and Fifth Amendments protected the person against all governmental invasions "of the sanctity of a man's home and the privacies of life." 116 U.S., at 630 . We spoke of the "right to privacy" of the Fourth Amendment upheld by Mapp v. Ohio, 367 U.S. 643, 656 , and of the many other controversies "over these penumbral rights of `privacy and repose.'" 381 U.S., at 485 . And we added:
[ Footnote 1 ] The Virginia Declaration of Rights, June 12, 1776, in its Article 10 proclaimed only against "general warrants." See Rutland, The Birth of the Bill of Rights 232 (1955). And the definition of the general warrant included not only a license to search for everything in a named place but to search all and any places in the discretion of the officers. Frisbie v. Butler, 1 Kirby 213 (Conn.). See generally Quincy's Mass. Rep. 1761-1772 Appendix I for the forms of these writs.
[ Footnote 2 ] This concept of the right of privacy protected by the Fourth Amendment is mirrored in the cases involving collateral aspects of the problem presented in this case: "It has, similarly, been held that a defendant cannot complain of the seizure of books and papers neither his own, nor in his possession. It is also the well-settled rule that where the papers are public records the defendant's custody will not avail him against their seizure. Where papers are taken out of the custody of one not their owner, it seems that such person can object if there has been no warrant, or if the warrant was directed to him, but not if the warrant is directed to the owner. If the defendant's property is lawfully out of his possession it makes no difference by what means it comes into the Government's hands as there has been no compulsion exercised upon him. But the privilege extends to letters in the mails. The privilege extends to the office as well as the home. "On the other hand, to enable a person to claim the privilege, [387 U.S. 294, 324] it is not necessary that he be a party to any pending criminal proceeding. He can object to the illegal seizure of his own property and resist a forcible production of it even if he is only called as a witness. "Nor must a person be a citizen to be entitled to the protection of the Fourth Amendment. . . ." Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361, 375-376.
[ Footnote 3 ] See, e. g., Carroll v. United States, 267 U.S. 132, 149 -150; United States v. Lefkowitz, 285 U.S. 452, 464 -466; Davis v. United States, 328 U.S. 582, 590 , n. 11; Harris v. United States, 331 U.S. 145, 154 ; United States v. Rabinowitz, 339 U.S. 56, 64 , n. 6; Abel v. United States, 362 U.S. 217, 234 -235. [387 U.S. 294, 326]