U.S. Supreme Court

Davis v. United States,328U.S. 582 (1946)Davis v. UnitedStates

No. 404

Argued February 5,1946

Decided June 10, 1946

328U.S. 582

CERTIORARI TO THE CIRCUIT COURT OFAPPEALS

FOR THE SECONDCIRCUIT

Syllabus

1. Having obtained clear evidence of violations of the gasolinerationing regulations through sales without coupons and atabove-ceiling prices (which are misdemeanors), officers arrestedpetitioner, president of the corporation which maintained theoffending filling station, at his place of business during businesshours and demanded ration coupons covering the aggregate amount ofsales. After refusing at first, petitioner soon acquiesced andsurrendered the coupons. In his trial for possessing themunlawfully (a misdemeanor), petitioner contended that there hadbeen an unlawful search which resulted in seizure of the couponsand their use in evidence against him, in violation of his rightsunder the Fourth and Fifth Amendments. The evidence wasconflicting, but the District Court found that he had consented tothe search and seizure and that no force or threat of force hadbeen employed to persuade him. He was convicted.

Held: The conviction is affirmed, because this Courtcannot say as a matter of law that the District Court's finding offact was erroneous. Pp.328 U. S.593-594.

2. The gasoline ration coupons never became the private propertyof the holder, but remained at all times the property of theGovernment, and subject to inspection and recall by it. P.328 U. S.588.

3. In the law of searches and seizures, a distinction is madebetween private papers or documents and public property in thecustody of a citizen.Wilson v. United States,221 U. S. 361. Pp.328 U. S.589-591.

4. Whatever may be the limits of inspection under theregulations, law enforcement is not so impotent as to requireofficers who have the right to inspect a place of business to standmute when clear evidence of criminal activity is known to them.Amos v. United States,255 U. S. 313,distinguished. Pp.328 U. S.592-593.

5. Where officers seek to inspect public documents at the placeof business where they are required to be kept, permissible limitsof persuasion are not so narrow as where private papers are sought,since the demand is one of right. P.328 U. S.593.

151 F.2d 140 affirmed.

Page 328 U. S. 583

Petitioner was convicted of unlawful possession of gasolineration coupons in violation of § 2(a) of the Act of June 28, 1940,as amended by the Act of May 31, 1941, and by § 301 of the SecondWar Powers Act of March 27, 1942. The Circuit Court of Appealsaffirmed. 151 F.2d 140. This Court granted certiorari. 326 U.S.711.Affirmed, p.328 U. S. 594.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner was convicted under an information charging him withunlawfully having in his possession on June 20, 1944, 168 gasolineration coupons, representing 504 gallons of gasoline. [Footnote 1] The judgment of convictionwas sustained

Page 328 U. S. 584

by the Circuit Court of Appeals (151 F.2d 140) over theobjection that there was an unlawful search which resulted in theseizure of the coupons and their use at the trial in

Page 328 U. S. 585

violation of the rule ofWeeks v. United States,232 U. S. 383;United States v. Lefkowitz,285 U.S. 452; and related cases. The case is here on apetition for a writ of certiorari which we granted because of theimportance of the question presented.

Davis was president of a corporation by the name of Davis AutoLaundry Corporation, which maintained a gasoline filling station inNew York City. He was suspected of running a black market ingasoline. Several agents drove to a place near the gasoline stationand observed it for a few hours. They had no search warrant, nor awarrant for the arrest of petitioner. Two of the agents drove theircars into the station and asked for gas. Petitioner was not presentat the time. But an attendant, an employee of petitioner, waspresent and waited on them. Through her, each of the two agentssucceeded in purchasing gas without gasoline ration stamps bypaying twenty cents a gallon above the ceiling price. Shortlythereafter, they arrested her for selling gasoline without couponsand above the ceiling price. She said that, in doing so, she wasfollowing petitioner's instructions. While she was being questionedby the agents, petitioner returned to the station in his car. Theyimmediately arrested him on the same charge as the attendant,[Footnote 2] and searched hiscar. They demanded and received from him the keys to tin boxesattached to the gasoline pumps and in which gasoline ration couponswere kept. One of them began to examine and measure the gasolinestorage tanks and their contents. It soon appeared that thegasoline ration coupons found in the tin boxes were notsufficient

Page 328 U. S. 586

to cover the amount by which the capacity of the storage tankshad been diminished by sales.

While this examination of the storage tanks was under way,petitioner went with two of the agents into his office, which wason the premises. [Footnote 3]The office consisted of a waiting room and inner room. He wasquestioned in the waiting room for about an hour. A door led fromthe waiting room into the inner room, where records were kept. Thedoor to it was locked. Petitioner at first refused to open it. Whentold that the examination of the tanks had revealed a shortage ofcoupons, petitioner assured the agents that he had sufficientcoupons to cover the shortage, and that they were in the lockedroom. The officers asked to see the coupons, and based their demandon the fact that the coupons were property of the government ofwhich petitioner was only the custodian. Petitioner persisted,however, in his refusal to unlock the door. Before long, he didunlock it, took from a filing cabinet the coupons on which theconviction rests, and gave them to the agents. He testified that hedid so because the agents threatened to break down the door if hedid not. The District Court did not believe petitioner's version ofthe episode. One agent testified:

"Q. Did you try to convince Davis that he ought to open thatdoor leading into the private office?"

"A. I didn't try to convince him. I told him that he would haveto open that door."

"Q. Did you tell him if he did not, you would break itdown?"

"A. I did not tell him that at all."

And it appeared that, while the two agents were talking withDavis in the waiting room, another agent was in the rear shining aflashlight through an outside window of the inner room andapparently trying

Page 328 U. S. 587

to raise the window. According to one of the agents, whenpetitioner saw that, he said, "He don't need to do that. I willopen the damned door." Some six weeks later, petitioner wasarrested on a warrant and arraigned.

The District Court found that petitioner had consented to thesearch and seizure, and that his consent was voluntary. The CircuitCourt of Appeals did not disturb that finding, although itexpressed some doubt concerning it. In its view, the seized couponswere properly introduced into evidence because the search andseizure, being incidental to the arrest, were "reasonable"regardless of petitioner's consent.

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures,shall not be violated, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation, and particularlydescribing the place to be searched, and the persons or things tobe seized."

And the Fifth Amendment provides in part that "No person . . .shall be compelled in any Criminal Case to be a witness againsthimself. . . ."

The law of searches and seizures as revealed in the decisions ofthis Court is the product of the interplay of these twoconstitutional provisions.Boyd v. United States,116 U. S. 616. Itreflects a dual purpose -- protection of the privacy of theindividual, his right to be let alone; protection of the individualagainst compulsory production of evidence to be used against him.Boyd v. United States, supra; Weeks v. United States,supra.And see Oklahoma Press Pub. Co. v. Walling,327 U. S. 186.

We do not stop to review all of our decisions which define thescope of "reasonable" searches and seizures. For they have largelydeveloped out of cases involving

Page 328 U. S. 588

the search and seizure of private papers. We are dealing herenot with private papers or documents, but with gasoline rationcoupons, which never became the private property of the holder, butremained at all times the property of the government and subject toinspection and recall by it.

At the times relevant here, gasoline was rationed. Dealers couldlawfully sell it only on receipt of ration coupons. [Footnote 4] They, in turn, could receivetheir supplies of gasoline from the distributors only on deliveryof coupons. [Footnote 5] It wasrequired that a dealer at all times have coupons on hand at hisplace of business or in a bank equal to, but not in excess of, thegallonage necessary to fill his storage tanks. [Footnote 6] Possession of coupons obtained incontravention of the regulations was unlawful. [Footnote 7] The coupons remained the property ofthe Office of Price Administration, [Footnote 8] and were at all times subject to recall by it.[Footnote 9] And they weresubject to inspection at all times. [Footnote 10]

Page 328 U. S. 589

We are thus dealing not with private papers or documents, butwith public property in the custody of a citizen. The distinctionbetween the two classes of property in the law of searches andseizures was recognized inWilson v. United States,221 U. S. 361,221 U. S. 380,where the Court stated:

"But the physical custody of incriminating documents does not,of itself, protect the custodian against their compulsoryproduction. The question still remains with respect to the natureof the documents and the capacity in which they are held. It mayyet appear that they are of a character which subjects them to thescrutiny demanded, and that the custodian has voluntarily assumed aduty which overrides his claim of privilege. This was clearlyimplied in theBoyd case, where the fact that the papersinvolved were the private papers of the claimant was constantlyemphasized. Thus, in the case of public records and officialdocuments, made or kept in the administration of public office, thefact of actual possession or of lawful custody would not justifythe officer in resisting inspection, even though the record wasmade by himself and would supply the evidence of his criminaldereliction. If he has embezzled the

Page 328 U. S. 590

public moneys and falsified the public accounts, he cannot sealhis official records and withhold them from the prosecutingauthorities on a plea of constitutional privilege againstself-crimination. The principle applies not only to publicdocuments in public offices, but also to records required by law tobe kept in order that there may be suitable information oftransactions which are the appropriate subjects of governmentalregulation, and the enforcement of restrictions validlyestablished. There, the privilege which exists as to probatepapers, cannot be maintained."

The Court proceeded to analyze the English and Americanauthorities and added, at221 U. S.381-382:

"The fundamental ground of decision in this class of cases isthat where, by virtue of their character and the rules of lawapplicable to them, the books and papers are held subject toexamination by the demanding authority, the custodian has noprivilege to refuse production although their contents tend tocriminate him. In assuming their custody, he has accepted theincident obligation to permit inspection."

The distinction is between property to which the government isentitled to possession and the property to which it is not.[Footnote 11]See 8Wigmore on Evidence, 3d Ed., § 2259c.

Page 328 U. S. 591

The distinction has had important repercussions in the law,beyond that indicated byWilson v. United States, supra.For an owner of property who seeks to take it from one who isunlawfully in possession has long been recognized to have greaterleeway than he would have but for his right to possession. Theclaim of ownership will even justify a trespass, and warrant stepsotherwise unlawful.Richardson v. Anthony, 12 Vt. 273;Madden v. Brown, 8 App.Div. 454, 40 N.Y.S. 714;Statev. Dooley, 121 Mo. 591, 26 S.W. 558.

We do not suggest that officers seeking to reclaim governmentproperty may proceed lawlessly and subject to an restraints. Nor dowe suggest that the right to inspect under the regulations subjectsa dealer to a general search of his papers for the purpose oflearning whether he has any coupons subject to inspection andseizure. The nature of the coupons is important here merely asindicating that the officers did not exceed the permissible limitsof persuasion in obtaining them.

Page 328 U. S. 592

They appeared on the premises during business hours. They hadocular evidence that a misdemeanor had been committed, a crime towhich petitioner was an aider or abetter, [Footnote 12] since, according to the attendant,she made the illegal sales pursuant to petitioner's instructions.Since sales were being made without receipt of coupons fromcustomers, it was fair to assume (unless, as was at no timesuggested, the business was being liquidated) that petitionersomewhere had a supply of coupons adequate to replenish his storagetanks. The inspection which was made was an inspection of the tanksattached to the pumps. And the search was of the office adjacent tothe pumps -- the place where petitioner transacted his business.Moreover, the officers demanded the coupons on the basis that theywere property of the government, and that petitioner was merely thecustodian of them. And there was no general, exploratory search.Only the contraband coupons were demanded; only coupons weretaken.

These facts distinguished this case from such cases asAmosv. United States,255 U. S. 313,where officers without a search warrant swoop down on a privateresidence, obtain admission through the exertion of officialpressure, and seize private property. The filling station was aplace of business, not a private residence. The officers' claim tothe property was one of right. For the coupons which they demandedto see were government property. And the demand was made duringbusiness hours. Whatever may be the limits of inspection under theregulations, law enforcement is not so impotent as to requireofficers, who have the right to inspect a place of business, tostand

Page 328 U. S. 593

mute when such clear evidence of criminal activity is known tothem.

Where the officers seek to inspect public documents at the placeof business where they are required to be kept, permissible limitsof persuasion are not so narrow as where private papers are sought.The demand is one of right. When the custodian is persuaded byargument that it is his duty to surrender them and he hands themover, duress and coercion will not be so readily implied as whereprivate papers are involved. The custodian in this situation is notprotected against the production of incriminating documents.Wilson v. United States, supra. The strict test ofconsent, designed to protect an accused against production ofincriminating evidence, has no place here. The right of privacy, ofcourse, remains. But, as we have said, the filling station was aplace of business, not a private residence. The right to inspectexisted. And where one is seeking to reclaim his property which isunlawfully in the possession of another, the normal restraintsagainst intrusion on one's privacy, as we have seen, are relaxed.The District Court found, after hearing the witnesses, thatpetitioner consented -- that, although he at first refused to turnthe coupons over, he soon was persuaded to do so, and that force orthreat of force was not employed to persuade him. According to theDistrict Court, the officers "persuaded him that it would be abetter thing for him to permit them to examine" the coupons; "theytalked him into it." We cannot say as a matter of law that thatfinding was erroneous. The public character of the property, thefact that the demand was made during business hours at the place ofbusiness where the coupons were required to be kept, the existenceof the right to inspect, the nature of the request, the fact thatthe initial refusal to turn the coupons over was soon followed byacquiescence in the demand -- these circumstances

Page 328 U. S. 594

all support the conclusion of the District Court. We accordinglyaffirm the judgment below without reaching the question whether,but for that consent, the search and seizure incidental to thearrest were reasonable.

Affirmed.

MR. JUSTICE JACKSON took no part in the consideration ordecision of this case.

[Footnote 1]

The information charged a violation of § 2(a) of the Act of June28, 1940, 54 Stat. 676, as amended by the Act of May 31, 1941, 55Stat. 236 and by Title III, § 301 of the Second War Powers Act ofMarch 27, 1942, 56 Stat. 177, 50 U.S.C.App., Supp. IV § 633. Sec.2(a) provides in part

"(2) . . . Whenever the President is satisfied that thefulfillment of requirements for the defense of the United Stateswill result in a shortage in the supply of any material or of anyfacilities for defense or for private account or for export, thePresident may allocate such material or facilities in such manner,upon such conditions and to such extent as he shall deem necessaryor appropriate in the public interest and to promote the nationaldefense."

"(3) The President shall be entitled to obtain such informationfrom, require such reports and the keeping of such records by, makesuch inspection of the books, records, and other writings, premisesor property of, any person . . . , and make such investigations, asmay be necessary or appropriate, in his discretion, to theenforcement or administration of the provisions of this subsection(a)."

"* * * *"

"(5) Any person who willfully performs any act prohibited, orwillfully fails to perform any act required by, any provision ofthis subsection (a) or any rule, regulation, or order thereunder,whether heretofore or hereafter issued, shall be guilty of amisdemeanor, and shall, upon conviction, be fined not more than$10,000 or imprisoned for not more than one year, or both."

The Office of Price Administration, to which that power had beendelegated, issued ration orders for gasoline. Ration Order No. 5C,as it read on June 20, 1944 (8 Fed.Reg. 16423), provided in part asfollows:

Sec. 1394.8177(c):

"No person shall have in his possession any gasoline depositcertificate, folder, or any coupon book, inventory or other coupon(whether or not such book was issued as a ration book and whetheror not such coupon was issued as a ration or as a part of a rationbook) or other evidence, or any identifying folder, except theperson, or the agent of the person, to whom such book, coupon,certificate or folder was issued or by whom it was acquired inaccordance with the provisions of Ration Book [sic] No.5C."

Sec. 1394.8217(a):

"Every dealer and intermediate distributor shall be accountablefor all gasoline, ration credits, gasoline deposit certificates,coupons and other evidences received by him. Gasoline depositcertificates, coupons and other evidences received at or for aplace of business shall be, at all times when the dealer ordistributor is open to transact business, retained by him at theplace of business for which they were received, or deposited in aration bank account maintained for that place of business, untilsuch time as they are surrendered to a dealer or distributor inexchange for gasoline, or otherwise surrendered pursuant to RationOrder No. 5C. The aggregate gallonage value of gasoline depositcertificates, coupons and other evidences on hand or on deposit foreach place of business of a dealer or intermediate distributor,shall, at all times, be equal to, but not in excess of, the numberof gallons of gasoline which would be required to fill the storagecapacity of such place of business, as shown by the currentcertificate of registration, . . . ."

8 Fed.Reg. 15981.

[Footnote 2]

Selling gasoline without receipt of ration coupons, sellinggasoline in excess of the ceiling price, or unlawfully possessingration coupons is a misdemeanor.See § 2(a),supra,note 1 A felonyis an offense punished by death or imprisonment for a termexceeding one year. Criminal Code § 335, 18 U.S.C. § 541.

[Footnote 3]

The filling station was located in a building about 250 feetlong. One set of pumps was near the entrance to one street; theother set was at the opposite end, near the entrance to anotherstreet. The office was located about half-way between the two setsof pumps.

[Footnote 4]

See Ration Order No. 5C,supra,note 1 §§ 1394.8152, 1394.8153.

[Footnote 5]

Id., § 1394.8207.

[Footnote 6]

Id., § 1394.8217(a),supra.

[Footnote 7]

Id., § 1394.8177(c),supra,note 1

[Footnote 8]

Id., § 1394.8227(b) provided that all

"gasoline deposit certificates and all coupon books, coupons,and other evidences are, and when issued shall remain, the propertyof the Office of Price Administration."

[Footnote 9]

Id., § 1394.8104(a):

"All coupon books, bulk coupons, inventory coupons, and otherevidences, are, and when issued shall remain, the property of theOffice of Price Administration. The Office of Price Administrationmay refuse to issue, and may suspend, cancel, revoke, or recall anyration and may require the surrender and return of any coupon book,bulk coupon, inventory coupons or other evidences during suspensionor pursuant to revocation or cancellation, whenever it deems it tobe in the public interest to do so."

[Footnote 10]

Id., § 1394.8235(b) provided in part:

"Upon demand made by any investigator of the Office of PriceAdministration or by any police officer, constable, or other lawenforcement officer of the United States or of any state, county,or local government, every person shall produce for inspection anytire inspection record and gasoline deposit certificate and anygasoline coupon books, coupons, and other evidences in hispossession or control, whether valid, invalid, void or expired inaccordance with Ration Order No. 5C. Investigators of the Office ofPrice Administration and all police officers, constables and otherlaw enforcement officers of the United States, or of any state,county or local government are authorized to make such inquiries ofany person as may be pertinent to determine whether a violation ofRation Order No. 5C has been or is being committed, and areauthorized to receive the surrender of all gasoline depositcertificates, gasoline coupon books, coupons and other evidencesacquired by any person otherwise than in accordance with RationOrder No. 5C, whether valid, invalid, void or expired."

As to the power of inspection given by the Act of June 28, 1940,see § 2(a)(3),supra,note 1

[Footnote 11]

This distinction was noted in another connection inBoyd v.United States, supra, at221 U. S. 623-624,where the Court said:

"The search for and seizure of stolen or forfeited goods, orgoods liable to duties and concealed to avoid the payment thereof,are totally different things from a search for and seizure of aman's private books and papers for the purpose of obtaininginformation therein contained, or of using them as evidence againsthim. The two things differtoto coelo. In the one case,the government is entitled to the possession of the property; inthe other it is not. The seizure of stolen goods is authorized bythe common law; and the seizure of goods forfeited for a breach ofthe revenue laws, or concealed to avoid the duties payable on them,has been authorized by English statutes for at least two centuriespast; and the like seizures have been authorized by our own revenueacts from the commencement of the government. The first statutepassed by Congress to regulate the collection of duties, the act ofJuly 31, 1789, 1 St. 29, 43, contains provisions to this effect. Asthis act was passed by the same Congress which proposed foradoption the original amendments to the Constitution, it is clearthat the members of that body did not regard searches and seizuresof this kind as 'unreasonable,' and they are not embraced withinthe prohibition of the amendment. So also, the supervisionauthorized to be exercised by officers of the revenue over themanufacture or custody of excisable articles, and the entriesthereof in books required by law to be kept for their inspection,are necessarily excepted out of the category of unreasonablesearches and seizures. So also, the laws which provide for thesearch and seizure of articles and things which it is unlawful fora person to have in his possession for the purpose of issue ordisposition, such as counterfeit coin, lottery tickets, implementsof gambling, etc., are not within this category.Commonwealthv. Dana, 2 Met. (Mass.) 329."

And see State of Tennessee v. Hall, 164 Tenn. 548, 51S.W.2d 851;State v. Knight, 34 N.M. 217, 279 P. 947;State v. Bennett, 315 Mo. 1267, 288 S.W. 50.

[Footnote 12]

Criminal Code § 332, 18 U.S.C. § 550, provides:

"Whoever directly commits any act constituting an offensedefined in any law of the United States, or aids, abets, counsels,commands, induces, or procures its commission, is a principal."

MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE MURPHY concurs,dissenting.

In its surface aspects, this case concerns merely a squalideffort to evade the wartime system of gasoline rationing. But itshould not be disposed of in that perspective. It is not the firstpetty little case to put to the test respect for principles whichthe founders of this nation deemed essential for a free society.For the case is directly related to one of the great chapters inthe historic process whereby civil liberty was achieved andconstitutionally protected against future inroads.

The Court's decision, as I see it, presents this issue: maypapers which an accused could not be compelled to produce even by ajudicial process of a search warrant be taken from him against hiswill be officers of the law without such judicial process for useas evidence in a criminal prosecution against him? Judicial processmay not compel the production of documents either because of theprotection of the Fifth Amendment against self-crimination or, asin this case, because the authorization by Congress of searchwarrants is withheld in a situation like the present. [Footnote 2/1] The Court apparently rulesthat. because the gasoline business was subject to regulation,the

Page 328 U. S. 595

search and seizure of such documents without a warrant is not anunreasonable search and seizure condemned by the Fourth Amendment.To hold that the search in this case was legal is to hold that asearch which could not be justified under a search warrant islawful without it. I cannot escape the conviction that such a viewof the Fourth Amendment makes a travesty of it, and of the longcourse of legislation in which Congress applied that Amendment.

Where search is made under the authority of a warrant issuedfrom a judicial source, the scope of the search must be confined tothe specific authorization of the warrant. It cannot be that theConstitution meant to make it legally advantageous not to have awarrant, so that the police may roam freely and have the courtsretrospectively hold that the search that was made was"reasonable," reasonableness being judged from the point of view ofobtaining relevant evidence. I had supposed that that was preciselywhat the Fourth Amendment was meant to stop.

"The government could desire its possession only to use it asevidence against the defendant and to search for and seize it forsuch purpose was unlawful."

Gouled v. United States,255 U.S. 298,255 U. S.310.

There is indeed a difference between private papers and papershaving also a public bearing. Private papers of an accused cannotbe seized, even through legal process, because their use wouldviolate the prohibition of the Fifth Amendment againstself-crimination. So-called public papers -- papers in which thepublic has an interest

Page 328 U. S. 596

other than that which they may serve as evidence in a case --may be seized, but, like all other things in an individual'spossession, they can be seized only upon a properly safeguardedsearch. The amenability of corporate papers to testimonialcompulsion means that a corporation, because it is a corporation,cannot make claim to the privilege of self-crimination. Nor can thecustodian of corporate books immunize them against their productionin court because they may also carry testimony against him. TheFourth Amendment does not give freedom from testimonial compulsion.Subject to familiar qualifications, every man is under obligationto give testimony. But that obligation can be exacted only underjudicial sanctions which are deemed precious to Anglo-Americancivilization. Merely because there may be the duty to makedocuments available for litigation does not mean that policeofficers may forcibly or fraudulently obtain them. This protectionof the right to be let alone except under responsible judicialcompulsion of precisely what the Fourth Amendment meant to expressand to safeguard.

An even more fundamental issue lurks in the Court's opinion if acasual but explicit phrase about the locus of the search andseizure as "a place of business, not a private residence" isintended to carry relevant legal implications. If this is anindirect way of saying that the Fourth Amendment only secures homesagainst unreasonable searches and seizures, but not offices --private offices of physicians and lawyers, of trade unions andother organizations, of business and scientific enterprises -- thenindeed it would constitute a sudden and drastic break with thewhole history of the Fourth Amendment and its applications by thisCourt.See Olmstead v. United States,277 U.S. 438,277 U. S. 477,and cases cited in footnotes 5, 6 and 7. I cannot believe that avast area of civil

Page 328 U. S. 597

liberties was thus meant to be wiped out by a few words, withoutprior argument or consideration.

The course of decision in this Court has thus far jealouslyenforced the principle of a free society secured by the prohibitionof unreasonable searches and seizures. Its safeguards are not to beworn away by a process of devitalizing interpretation. The approvalgiven today to what was done by arresting officers in this caseindicates that we are in danger of forgetting that the Bill ofRights reflects experience with police excesses. It is not onlyunder Nazi rule that police excesses are inimical to freedom. It iseasy to make light of insistence on scrupulous regard for thesafeguards of civil liberties when invoked on behalf of theunworthy. It is too easy. History bears testimony that by suchdisregard are the rights of liberty extinguished, heedlessly atfirst, then stealthily, and brazenly in the end.

The issue in this case is part of a long historic process, andproper consideration of the problem before us compels ratherextended discussion. These are the circumstances that give rise toour problem. For some time, operations of the gasoline stationowned by Davis under a corporate form had been suspect by theOffice of Price Administration. On the day of the questionedseizure, three OPA investigators and two New York City detectiveskept watch on the station for several hours. One of the OPA mendrove his car to the pumps for gas. After the attendant had filledhis tank, he told her, when asked for coupons, that he had none.She then demanded a higher price for the gasoline, which he paidwith a marked five dollar bill. Later, another investigatorrepeated this performance. Then all five officers went into thestation, notified the attendant that she was under arrest, andrequested and obtained from her the two marked bills and a card onwhich she had recorded the sales. While the girl's questioning

Page 328 U. S. 598

was still proceeding, Davis drove into the station. His car wasimmediately searched, and he was charged with selling gas overceiling prices and without coupons. These were charges ofmisdemeanors. The officers then demanded and received from Daviskeys for the locked boxes on the pumps intended for the deposit ofcoupons received for gas sold. While some of the officers wereengaged in checking the discrepancy between the amount of gas instorage tanks and the coupons in the boxes, Davis was taken by twoof the agents to on outer room in his office. They demanded fromhim gas coupons which he claimed to have in sufficient numbers tomake up the deficiencies in the locked boxes. He stubbornly refuseddespite the insistence of one of the officers that "he would haveto open that door" to his private office. Finally, when anotherofficer flashed a light into the office from an outside window andevinced an intention to force the window, Davis unlocked the door.Thereupon, he took some envelopes from a filing cabinet and handedthem to the agents. These envelopes contained the stamps whichformed the basis of the prosecution. He was then taken to OPAheadquarters and questioned, but eventually allowed to go. Severalweeks later, he was taken into custody and then charged with theillegal possession of gasoline ration documents. This charge alsois a misdemeanor.

The petitioner made timely motions for the suppression of theevidence,see Nardone v. United States,308 U.S. 338,308 U. S.341-342, claiming that they were illegally seized andbarred as evidence against him. The trial court denied thesemotions on the ground that Davis had voluntarily turned the stampsover to the officers. The Circuit Court of Appeals sustained theconviction, but it did not accept the District Court's view thatDavis had surrendered the stamps of his own free will. What theCircuit Court of Appeals thought about the matter is best expressedin

Page 328 U. S. 599

its own language:

"The judge found that Davis' consent was 'voluntarily' given,and for that reason denied the motion to suppress the evidence. Weneed not decide that that finding is wrong, for we can dispose ofthe case upon other grounds; but we must own to some doubt whethera consent obtained under such circumstances should properly beregarded as 'voluntary.' Davis must have known, under arrest as hewas, that the officers were not likely to stand very long uponceremony, but, in one way or another, would enter the office."

151 F.2d 140, 142. One must reject the District Court's findingthat Davis' consent went with his surrender of the documents unlessone is to hold that every submission to the imminent exertion ofsuperior force is consensual if force is not physically applied.The district court's finding that Davis voluntarily surrendered thedocuments is not one of those findings of facts which appropriatelycalls for our acceptance. When such a finding involves conflictingevidence or the credibility of a witness, the advantage of havingseen or heard a witness may be decisive. But here the issue is notas to what took place, but as to the significance of what tookplace. And when a district court's finding of a so-called fact isas interwoven as it is here with constitutional consequences, wecannot accept a finding whereby the constitutional issue ispredetermined. We are not bound by findings that operate as crypticconstitutional determinations even when they come here, unlike thepresent case, supported by both lower courts.See United Statesv. Appalachian Electric Power Co.,311 U.S. 377,311 U. S. 404.To say that a yielding to continuous pressure by arrestingofficers, accompanied by minatory manifestations to resort toself-help, constitutes a voluntary yielding is to disregardordinary experience. This Court preferred not to do that inAmos v. United States,255 U. S. 313. Wethere held that where officers stated that, they were revenueofficers and requested admission

Page 328 U. S. 600

to the premises in order to make a search there was, as a matterof law, "implied coercion." Inasmuch "as conduct under duressinvolves a choice," the Fourth Amendment is hardly to be nullifiedby finding every submission short of overpowering force"voluntary."See Union Pac. R. Co. v. Public Serv. Comm'n,248 U. S. 67,248 U. S.70.

This Court also attributes voluntariness to Davis' surrender ofthe document. But it does so not because it finds that what Davisdid was an exercise of free choice. It does not question the doubtof the Circuit Court of Appeals whether the consent obtained fromDavis was, as a psychological fact, a voluntary act. The Courtderives voluntariness from the fact that what the officerscompelled Davis to give up were ration coupons. But surely this isto assign to ordinary words a private, esoteric meaning. Commonusage rejects such meaning of "voluntary," and law has notheretofore indulged it. In considering whether evidence was freelygiven or coerced, the law has always meant be voluntary whateverybody else means by it. To make voluntariness turn on thenature of the quest, instead of on the nature of the response ofthe person in control of the sought documents, is to distortfamiliar notions on the basis of which the law has heretoforeadjudged legal consequences. The Court accepts the Government'sargument [Footnote 2/2] which theCircuit

Page 328 U. S. 601

Court of Appeals rejected, and rejected because gravelydisturbed by its implication. Though differently phrased, theargument which has here found favor evoked this comment in theconcurring opinion of Judge Frank:

"I add a few words only because I think it important tounderscore our rejection of the following argument on which theAssistant United States Attorney chiefly relied: whenever thegovernment validly regulates any business and includes in itsregulation a valid requirement that records be kept which shall beopen to official inspection, then refusal to produce the recordsfor such inspection authorizes the officers to enter the premisesand seize the records. One variant of the argument was that refusalto permit inspection in such circumstances constitutes, in effect,the legal equivalent of consent to enter; another variant was that,in such circumstances, conduct of the defendant must be interpretedas consent to entry although, in other circumstances, the very sameconduct would be regarded as refusal. In one way or another, theAssistant United States Attorney urged that obstruction of theright of officers to inspect deprived the

Page 328 U. S. 602

defendant of his usual privilege to be free of unreasonablesearch and seizure."

151 F.2d at 144.

Of course, there is an important difference in theconstitutional protection afforded their possessors between papersexclusively private and documents having public aspects.Cf.Weeks v. United States,232 U. S. 383,232 U. S.393-394;Gouled v. United States,255 U.S. 298,255 U. S.308-309. But the essence of the difference is that,under appropriate circumstances, wholly private papers are not evensubject to testimonial compulsion, whereas other papers, once theyhave been legally obtained, are available as evidence. Had thecoupons in controversy been secured by a proper search, they couldbe used against the defendant at the trial. But their characterdoes not eliminate the restrictions of the Fourth Amendment andsubject the person in possession of such documents, against hisprotest, to searches and seizures otherwise unwarranted.

The acceptance of the Government's argument opens an alarmingvista of inroads upon the right of privacy. This right the FourthAmendment sought to protect by its general interdiction of policeintrusion without prior judicial authorization through searchwarrants issued "upon probable cause, supported by Oath oraffirmation, and particularly describing the place to be searched,and the persons or things to be seized." Article IV. Only the otherday, every person not in the armed forces had in his possession OPAdocuments which technically were the property of the OPA, and thesame situation may come to pass tomorrow; most businesses in thecountry are in possession of documents required to be kept underfederal and State authority, and there is every prospect that thisnetwork of required records will be extended. It misconceives theissues to assume that the protection for privacy here urged wouldserve as a shield against scrutiny of the records of the giantindustries or the great trade unions. The Fourth Amendment does notdifferentiate

Page 328 U. S. 603

between big and small enterprise. But, in any event, while oureconomy is extensively carried on through the corporate form, thelatest available figures show that, of the multitudinousincome-reporting corporations, only about five percent have a netincome above $100,000. It cannot be that the highly prizedConstitutional immunity from police intrusion, as it affectsactivities that permeate our national life, is now to be curtailedor viewed with laxity.

The Court's opinion has only its own reasoning to support it.Nothing that this Court has ever decided or sanctioned gives itstrength.Wilson v. United States,221 U.S. 361, invoked by the Court, was a very differentstory. That case was concerned with the difference between theamenability of a corporation to testimonial compulsion and theimmunity of an individual, under relevant circumstances, to be freefrom the duty to give testimony. The core of the Government's claimhere is the right to seize documents in the absence of judicialprocess. The difference between demanding documents without legalprocess and seizing them on the basis of such process is thedifference between the protection of civil liberties and theirinvasion. The difference is the essence of the FourthAmendment.

Indeed, so unhappy was the experience with police search forpapers and articles "in home or office,"Gouled v. UnitedStates,255 U. S. 298,255 U. S.308-309, that it was once maintained that no search andseizure is valid. To Lord Coke has been attributed the propositionthat warrants could not be secured even for stolen property.But see Coke, Fourth Institute, 176-77. Under earlyEnglish doctrine, even search warrants by appropriate authoritycould issue only for stolen goods.See 2 Hale, Pleas ofthe Crown, 113, 114, 149-151; Gabbett, Criminal Law (1843) 156et seq.; Chitty, Criminal Law, 5th Ed., 1847, 64etseq.; Barbour, Criminal Law, 2d Ed., 1852, 499et

Page 328 U. S. 604

seq.; 1 Archbold, Criminal Procedure, 7th Ed., 1860,141. Certainly warrants lacking strict particularity as to locationto be searched or articles to be seized were deemed obnoxious.Ibid.; see also 2 Hawkins, Pleas of the Crown, 130, 133.An attempt to exceed these narrow limits called forth the enduringjudgment of Lord Camden, inEntick v. Carrington, 19Howell's State Trials, 1029, in favor of freedom against policeintrusions. And when appeal to the colonial courts on behalf ofthese requisite safeguards for the liberty of the people failed,Paxton's Case, Quincy (Mass.) 51, a higher tribunalresolved the issue. The familiar comment of John Adams on Otis'argument inPaxton's Case can never become stale:

"American independence was then and there born; the seeds ofpatriots and heroes were then and there sown, to defend therigorous youth, thenon sine Diis animosus infans. Everyman of a crowded audience appeared to me to go away, as I did,ready to take arms against writs of assistance. Then and there wasthe first scene of the first act of opposition to the arbitraryclaims of Great Britain. Then and there the child Independence wasborn. In fifteen years, namely, in 1776, he grew up to manhood, anddeclared himself free."

10 Adams, Works, 247-248; for a description of Otis' speech inPaxton's Case, see 2 id. 523. So basic to liberty is theprotection against governmental search and seizure that every Statein the Union [Footnote 2/3] hasthis as a constitutional safeguard.

This bleak recital of the past was living experience for Madisonand his collaborators. They wrote that experience into the FourthAmendment, not merely its words. Mention has been made of the doubtin the minds of English and Colonial libertarians whether searchesand

Page 328 U. S. 605

seizures could be sanctioned even by search warrants. It issignificant that Madison deemed it necessary to put into the FourthAmendment a qualifying permission for search and seizure by thejudicial process of the search warrant -- a search warrant exactingin its foundation and limited in scope. This qualification givesthe key to what the framers had in mind by prohibiting"unreasonable" searches and seizures. The principle was that allseizures without judicial authority were deemed "unreasonable." Ifthe purpose of its framers is to be respected, the meaning of theFourth Amendment must be distilled from contemporaneous history.The intention of the Amendment was accurately elucidated in anearly Massachusetts case. The court there had before it the termsof the Massachusetts Constitution, on which, with like provisionsin other State Constitutions, the Fourth Amendment was based:

"With the fresh recollection of those stirring discussions[respecting writs of assistance], and of the revolution whichfollowed them, the article in the Bill of Rights, respectingsearches and seizures was framed and adopted. This article does notprohibit all searches and seizures of a man's person, papers, andpossessions, but such only as are 'unreasonable,' and thefoundation of which is 'not previously supported by oath oraffirmation.' The legislature were not deprived of the power toauthorize search warrants for probable causes, supported by oath oraffirmation, and for the punishment or suppression of any violationof law. The law, therefore, authorizing search warrants in certaincases is in no respect inconsistent with the declaration ofrights."

Commonwealth v. Dana, 2 Metc. (Mass.) 329, 336.

Such was the contemporaneous construction of the FourthAmendment by the Congress. It gave specific

Page 328 U. S. 606

authorization whenever it wished to permit searches andseizures. Beginning with the first Congress down to 1917, Congressauthorized search by warrant not as a generally available resourcein aid of criminal prosecution, but in the most restricted way,observing with a jealous eye the recurrence of evils with which ourearly statesmen were intimately familiar. For each concretesituation, Congress deemed it necessary to pass a separate act. Anincomplete examination finds scores of suchad hocenactments scattered through the Statutes at Large. Not until 1917,and then only after repeated demands by the Attorney General, didCongress pass the present statute authorizing the issue of searchwarrants for generalized situations. 40 Stat. 217, 228, 18 U.S.C. §611et seq. Even then, the situations were restricted, andthe scope of the authority was strictly defined. In the case beforeus, no attempt was made to get a search warrant because none couldhave been got. Congress did not authorize one either on the chargeson which Davis was originally arrested or on which he wasultimately tried. And even since the 1917 Act, Congress hasemphasized the importance of basing the compulsory demand forevidence upon judicial process, rather than the zeal of arrestingofficers. The habit of continual watchfulness against the dangersof police abuses has been reflected in that Congress has continuedto authorize search warrants for particular situations by specificlegislation or by reference to the 1917 Act. These revealingenactments are summarized in an328U.S. 582app|>Appendix.

In the course of its decisions, with a deviation promptlyretraced, this Court has likewise reflected the broad purpose ofthe Fourth Amendment. The historic reach of the Amendment and theduty to observe it was expounded for the Court by Mr. JusticeBradley inBoyd v. United States,116 U.S. 616, "a case that will be remembered as long as civilliberty lives in the United States."

Page 328 U. S. 607

Brandeis, J., inOlmstead v. United States,277 U. S. 438,277 U. S. 471,at277 U. S. 474.The Amendment has not been read in a niggardly spirit, or with theoutlook of a narrow-minded lawyer.

Since the opinion in this case seems to me out of line with ourprior decisions, it becomes important to recall how this Court hasheretofore viewed the Fourth Amendment and what has actually beendecided. I shall draw on a summary of the Court's decisions by Mr.Justice Brandeis:

"Time and again, this Court, in giving effect to the principleunderlying the Fourth Amendment, has refused to place an undulyliteral construction upon it. This was notably illustrated in theBoyd case itself. Taking language in its ordinary meaning,there is no 'search' or 'seizure' when a defendant is required toproduce a document in the orderly process of a court's procedure.'The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures'would not be violated, under any ordinary construction of language,by compelling obedience to a subpoena. But this court holds theevidence inadmissible simply because the information leading to theissue of the subpoena has been unlawfully secured.SilverthorneLumber Co. v. United States,251 U. S. 385. Literally, thereis no 'search' or 'seizure' when a friendly visitor abstractspapers from an office; yet we held inGouled v. UnitedStates,255 U. S. 298, that evidence soobtained could not be used. No court which looked at the words ofthe amendment, rather than at its underlying purpose, would hold,as this Court did inEx parte Jackson,96 U. S.727,96 U. S. 733, that itsprotection extended to letters in the mails. The provision againstself-incrimination in the Fifth Amendment has been given an equallybroad construction.

Page 328 U. S. 608

The language is: 'No person . . . shall be compelled in anycriminal case to be a witness against himself.' Yet we have heldnot only that the protection of the amendment extends to a witnessbefore a grand jury, although he has not been charged with crime(Counselman v. Hitchcock,142 U. S.547,142 U. S. 562,142 U. S.586), but that:"

"It applies alike to civil and criminal proceedings, whereverthe answer might tend to subject to criminal responsibility him whogives it. The privilege protects a mere witness as fully as it doesone who is also a party defendant."

McCarthy v. Arndstein,266 U. S.34,266 U. S. 40.The narrow language of the Amendment has been consistentlyconstrued in the light of its object,

"to insure that a person should not be compelled, when acting asa witness in any investigation, to give testimony which might tendto show that he himself had committed a crime. The privilege islimited to criminal matters, but it is as broad as the mischiefagainst which it seeks to guard."

"Counselman v. Hitchcock, supra, p.142 U. S.562."

"Decisions of this Court applying the principle of theBoyd case have settled these things. Unjustified searchand seizure violates the Fourth Amendment, whatever the characterof the paper; whether the paper when taken by the federal officerswas in the home, in an office, or elsewhere; whether the taking waseffected by force, by fraud, or in the orderly process of a court'sprocedure. From these decisions, it follows necessarily that theamendment is violated by the officer's reading the paper without aphysical seizure, without his even touching it; and that use, inany criminal proceeding, of the contents of the papers so examined-- as where they are testified to by a federal officer who thus sawthe document or where, through knowledge so obtained, a copy hasbeen procured elsewhere -- any such use constitutes

Page 328 U. S. 609

a violation of the Fifth Amendment."

Olmstead v. United States,277 U.S. 438,277 U. S. 471,at277 U. S.476-478.

And so we are finally brought to the question whether theseizure of documents which could not possibly have been justifiedas the result of a search under a warrant, since no such warrantcould have been authorized by law, can be justified as a search andseizure without a warrant. Such justification must have somehistoric foundation, otherwise it is clearly out of the bounds ofthe Fourth Amendment. The court below evidently struggled inreaching its conclusion because of some decisions here which itnaturally found "not entirely harmonious." Its chief reliance waslanguage inMarron v. United States,275 U.S. 192. A short answer would be that the sting of theMarron case was taken by two later cases.Go-BartImporting Co. v. United States,282 U.S. 344,282 U. S. 358,andUnited States v. Lefkowitz,285 U.S. 452,285 U. S. 465.But a closer analysis is called for.

One would expect a hard-headed system like the common law torecognize exceptions even to the most comprehensive principle forsafeguarding liberty. This is true of the prohibition of allsearches and seizures as unreasonable unless authorized by ajudicial warrant appropriately supported. Such is the exception,historically well recognized, of the right to seize without warrantgoods and papers on ships or other moving vehicles. Anotherexception is the right of searching the person upon arrest. Whetherthat right is a surviving incident of the historic role of the "hueand cry" in early Anglo-Saxon law,see People v. Chiagles,237 N.Y. 193, 196, 142 N.E. 583, 584, or is based on the necessityof depriving the prisoner of potential means of escape,Clossonv. Morrison, 47 N.H. 482, or on preventing the prisoner fromdestroying evidence otherwise properly subject to seizure,seeReifsnyder v. Lee, 44 Iowa 101, 103;Holker v.Hennessey, 141 Mo. 527, 42 S.W. 1090, the right to search aprisoner upon lawful

Page 328 U. S. 610

arrest was early settled in our law. [Footnote 2/4] 1 Bishop, New Criminal Procedure, 4th Ed.,1895, §§ 210et seq.

A casual and uncritical application of this right to search theperson of the prisoner has led some decisions in the lower federalcourts to an unwarranted expansion of this narrow exception, withresulting inroads upon the overriding principle of the prohibitionof the Fourth Amendment. Slight extensions from case to casegradually attain a considerable momentum from

"judicial sanction of equivocal methods, which, regardedsuperficially, may seem to escape the challenge of illegality butwhich, in reality, strike at the substance of the constitutionalright.

Page 328 U. S. 611

Byars v. United States,273 U. S.28,273 U. S. 33-34. In casesdealing with the search of the person, [Footnote 2/5] it is natural to speak of the right tosearch and seize things 'in his possession' without strict regardto the ambiguous scope of a man's 'possession.' From that, opinionsslide readily to including the right to search and seize things'within the immediate control' of the arrested person, languageappropriate enough when applied to goods which the arrested personwas transporting at the time. [Footnote2/6] Taken out of their original context, these phrases areused until they are made to include the entire premises [Footnote 2/7] in which

Page 328 U. S. 612

the arrest takes place. Another factor enters. This language issometimes used in cases involving the seizure of items properlysubject to seizure because in open view at the time of arrest.[Footnote 2/8] But this lastconfusion is due to a failure to distinguish between theappropriate scope of a search on arrest and the very differentproblem as to the right of seizure where no search is inquestion."

It is important to keep clear the distinction between prohibitedsearches, on the one hand, and improper seizures, on the other.See Mr. Justice Miller inBoyd v. United States,116 U. S. 616,116 U. S. 638,116 U. S. 641.Thus, it is unconstitutional to seize a person's private papers,though the search in which they were recovered was perfectlyproper,e.g., Gouled v. United States,255 U.S. 298. It is unconstitutional to make an impropersearch even for articles that are appropriately subject to seizure,e.g., Amos v. United States,255 U.S. 313;Byars v. United States,273 U. S.28;Taylor v. United States,286 U. S.1. And a search may be improper because of the object itseeks to uncover,e.g., Weeks v. United States,232 U. S. 383,232 U. S.393-394, or because its scope extends beyond theconstitutional bounds,e.g., Agnello v. United States,269 U. S. 20.

The course of decisions here has observed these importantdistinctions. The Court has not been indulgent towards inroads uponthe Amendment. Only rarely have its dicta appeared to give unduescope to the right of search on arrest, andMarron v. UnitedStates, supra, is the only decision in which the dicta werereflected in the result. That case has been a source of confusionto the

Page 328 U. S. 613

lower courts. Thus, the Circuit Court of Appeals for the SecondCircuit felt that theMarron case required it to give amore restricted view to the prohibitions of the Fourth Amendmentthan that court had expounded inUnited States v.Kirschenblatt, infra, see Go-Bart Importing Co. v. United States,sub nom. United States v. Gowen, 40 F.2d 593, only to finditself reversed here,Go-Bart Importing Co. v. United States,supra, partly on the authority of theKirschenblattdecision, which, after theMarron case, it thought it mustdisown. The uncritical application of the right of search on arrestin theMarron case has surely been displaced byGo-Bart Importing Co. v. United States, supra, and evenmore drastically byUnited States v. Lefkowitz, supra,unless one is to infer that an earlier case qualifies laterdecisions although these later decisions have explicitly confinedthe earlier case.

In view of the jealousy with which this Court has applied theprotection of the Fourth Amendment even where the search purportedto take place under a proper warrant and there was the safeguard ofjudicial process in addition to the expressed judgment of theenforcement officials,see e.g., Grau v. United States,287 U. S. 124;Sgro v. United States,287 U. S. 206, itwas not to be expected that this Court should sanction searches onarrest that can be justified as reasonable only if securingevidence for purposes of the trial is the test of reasonablenessfor purposes of the Fourth Amendment. Such a view presupposes thatthe Fourth Amendment is absolute, and makes of the particularity ofrequirement for search warrants a mocking redundancy.

A final point. In this case, the arrest was based on twomisdemeanors, the sale of gasoline without the requisite couponsand the sale of gasoline at a price over the OPA ceilings. Forneither of these offenses were coupons "instruments of the crime"in any sense in which

Page 328 U. S. 614

that term is properly used. The exceptional right to search onarrest does not, in any event, extend to a search for articlesnecessary to the commission of a crime other than that for whichthe arrest was made. The officers could not have made an arrest ofDavis for illegal possession of coupons, for which he was latertried, on mere suspicion. That crime, like the others, was only amisdemeanor, and no arrest can be made for a misdemeanor without awarrant unless it be committed in the presence of officers. Priorto the search, the officers had no basis for stating that he wascommitting the crime of illegal possession of the coupons in theirpresence.

It is too often felt, though not always avowed, that what iscalled nice observance of these constitutional safeguards makesapprehension and conviction of violators too difficult. Want ofalertness and enterprise on the part of the law enforcers too oftenis the real obstruction to law enforcement. The present caseaffords a good instance. [Footnote2/9] The situation bears close resemblance to what

Page 328 U. S. 615

Judge Learned Hand said on another occasion.

"We are told that unless such evidence will serve, it will beimpossible to suppress an evil of large proportion in theresidential part of Brooklyn. Perhaps so; any community must choosebetween the impairment of its power to punish crime and such evilsas arise from its uncontrolled prosecution. But the danger is notcertain, for the officer could have applied for a warrant which --as was at least intimated inTaylor v. United States --might then have been valid. It takes time to break up a still andtake the parts away; if the attempt were made, it would discoveritself immediately. One or more officers could have watched, whilethe others went to a judge or commissioner, whose action would atleast have put a different face upon their subsequentproceeding."

United States v. Kaplan, 89 F.2d 869, 871.

The Court in this case gives a new label to an old practice andto an old claim by police officials. But it happens that the oldpractice and the old claim now refurbished in a new verbal dresswere the very practice and claim which infringed liberty asconceived by those who framed the Constitution and against whichthey erected the barrier of the Fourth Amendment. I am constrainedto believe that today's decision flows from a view of the FourthAmendment that is unmindful of the history that begot it and of thepurpose for which it was included in the Bill of Rights. And theview of the Amendment which the Court rejects is confirmed by animpressive body of the laws of Congress and of the decisions ofthis Court. Stern enforcement of the criminal law is the hallmarkof a healthy and self-confident society. But, in our democracy,such enforcement presupposes a moral atmosphere and a reliance uponintelligence whereby the effective administration of justice can beachieved with due regard for those civilized standards in the useof the criminal law which are formulated in our Bill of Rights. Ifgreat principles

Page 328 U. S. 616

sometimes appear as finicky obstructions in bringing a criminalto heel, this admonition of a wise judge gives the finalanswer:

"Such constitutional limitations arise from grievances, real orfancied, which their makers have suffered, and should goparipassu with the supposed evil. They withstand the winds oflogic by the depth and toughness of their roots in the past. Norshould we forget that what seems fair enough against a squalidhuckster of bad liquor may take on a very different face, if usedby a government determined to suppress political opposition underthe guise of sedition."

Learned Hand, J. inUnited States v. Kirschenblatt, 16F.2d 202, 203.

[Footnote 2/1]

The petitioner was arrested for the sale of gasoline withoutcoupons and at a price greater than that authorized by the Officeof Price Administration ceilings; he was prosecuted for the illegalpossession of gasoline ration documents. These offenses aremisdemeanors. 56 Stat. 176, 179, 50 U.S.C.App. § 633(5).

The Espionage Act limits the issuance of search warrants tothose in which the property sought was stolen or embezzled, used asa means of committing a felony, or used to aid illegally a foreignnation. 40 Stat. 217, 228, 18 U.S.C. § 612. The documents involvedin this case do not come within any of these categories.

[Footnote 2/2]

A few words only need be said about the cases on which theGovernment relies. Most of them deal with the amenability ofdocuments to production upon legal process.Wilson v. UnitedStates,221 U. S. 361;Bowles v. Insel, 148 F.2d 91;Cudmore v. Bowles,79 U.S.App.D.C. 255, 145 F.2d 697;Rodgers v. UnitedStates, 138 F.2d 992;Fleming v. Montgomery Ward &Co., 114 F.2d 384. In the others, consent was given to inspectthe papers in accordance with the provisions of the governingstatute.Bowles v. Beatrice Creamery Co., 146 F.2d 774;Bowles v. Glick Bros. Lumber Co., 146 F.2d 566;In reSana Laboratories, 115 F.2d 717 (subsequent to the inspection,there was a wrongful taking; the court admitted the evidenceprocured as a result of the inspection, but barred the documentsfrom evidence);C. M. Spring Drug Co. v. United States, 12F.2d 852;United States v. Kempe, 59 F. Supp.905;Bowles v. Stitzinger, 59 F. Supp.94;Bowles v. Curtiss Candy Co., 55 F. Supp.527;United States v. Sherry, 294 F. 684 (here, thedocuments were taken with the consent of the custodian). InA.Guckenheimer & Bros. Co. v. United States, 3 F.2d 786,however, the situation bears some resemblance to the present case.There, the Circuit Court of Appeals attributed the consent of thecustodian, following continual refusal, to the command of thestatute. While there was no indication, as evidenced by theopinion, that the documents were secured through fear of force, theinspection afforded was probably not voluntary. Insofar as there issupport in that case for a search that transgressed the FourthAmendment, the observations are mere dicta, since no timelyobjection was filed.

[Footnote 2/3]

This historic safeguard against unreasonable search and seizurewas given formal constitutional sanction in New York in 1938.N.Y.Const. of 1938, Art. 1, § 12.

[Footnote 2/4]

For purposes of present discussion, the validity of the arresthas been assumed. But its legality raises several seriousquestions. First, it is not clear whether the OPA investigators orthe New York City detectives made the arrest. The OPAinvestigators, of course, have no authorization to make an arrest.Whether the New York detectives are authorized to make arrests forfederal offenses is a debatable issue.See Gambino v. UnitedStates,275 U. S. 310;Marsh v. United States, 29 F.2d 172; § 201(a) of theEmergency Price Control Act, 56 Stat. 23, 29, 50 U.S.C.App. § 921.Though local law makes provision for punishment of the same actsthat are federal offenses in this regard, N.Y.Laws, 1942, c. 544,the arrest was made for a federal, and not a state or local,offense. If the New York law is controlling as to the validity ofthe arrest, however, it is within the power of any person to makean arrest for a crime, including a misdemeanor, in his presence.The common law rule restricted arrest without warrant for amisdemeanor to those acts which were breaches of the peace. Hereagain, there is the issue of whether the petitioner committed anymisdemeanor in the presence of those making the arrest at the timethe arrest was made. A recent decision by the English court ofAppeal focuses attention on this last question. InLeachinskyv. Christie [1946] 1 K.B. 124, at 135, Lord Justice Scottmakes clear why the legality of arrest turns on the justificationwhich the arresting officer gives at the time of the arrest:

"The law does not allow an arrestin vacuo, or withoutreason assigned, and the reason assigned must be that the arrest isfor the purpose of prosecution on the self-same charge as it thejustification for the arrest. It follows, and it is a principlelying at the very roots of English freedom, that if a man isarrested on one charge, he is entitled to his release the momentprosecution of that charge is abandoned. The prosecution cannotarrest on one charge, abandon their intention to proceed on thatcharge, and then keep him in cold storage, still nominally on thatcharge, while they inquire into the possibility of putting forwarda different charge. To do that, they must first release him; then,when they propose to put forward some other charge, they can makethe new charge the occasion for a new arrest."

See also Dumbell v. Roberts (1944), 113 L.J. (K.B.)185;People v. Marendi, 213 N.Y. 600, 609etseq., 107 N.E. 1058. TheLaw Quarterly Review, incommenting on theLeachinsky case, pointed out:

"An accused person has the right to know what the charge isagainst him so that, if he elects to speak he may have a fair andopen chance of clearing himself at the earliest possiblemoment."

62 L.Q.Rev. at 4. It is to be noted thatCarroll v. UnitedStates,267 U. S. 132,267 U. S. 157,assumes the federal law of arrest to be the same as that of theEnglish.

[Footnote 2/5]

E.g., United States v. Wilson, 163 F. 338, 340;United States v. Murphy, 264 F. 842, 844;UnitedStates v. Snyder, 278 F. 650, 658;Maynard v. UnitedStates, 57 App.D.C. 314, 23 F.2d 141, 144;cf. UnitedStates v. Welsh, 247 F. 239;Laughter v. UnitedStates, 259 F. 94;Donegan v. United States, 287 F.641;Winkler v. United States, 297 F. 202.

[Footnote 2/6]

E.g., Green v. United States, 289 F. 236, 238;Browne v. United States, 290 F. 870, 875;Garske v.United States, 1 F.2d 620;Kwong How v. UnitedStates, 71 F.2d 71.

[Footnote 2/7]

E.g., Swan v. United States, 54 App.D.C. 100, 295 F.921;Sayers v. United States, 2 F.2d 146;UnitedStates v. Poller, 43 F.2d 911;United States v. 71.41Ounces Gold Filled Scrap, 94 F.2d 17;United States v.Feldman, 104 F.2d 255;Matthews v. Correa, 135 F.2d534;United States v. Lindenfeld, 142 F.2d 829.

[Footnote 2/8]

E.g., Laney v. United States, 54 App.D.C. 56, 294 F.412, 416;United States v. Chin On, 297 F. 531, 533;United States v. Seltzer, 5 F.2d364;Mattus v. United States, 11 F.2d 503;ChengWai v. United States, 125 F.2d 915;cf. United States v.Borkowski, 268 F. 408;In re Mobile, 278 F. 949;O'Connor v. United States, 281 F. 396;Vachina v.United States, 283 F. 35;Furlong v. United States,10 F.2d 492;United States v. Fischer, 38 F.2d830.

[Footnote 2/9]

The petitioner's gas station was under suspicion for some weeks,yet action was finally taken as described in this opinion.Petitioner was arrested when he arrived at the gas station forsales above ceiling prices and sales without coupons. Noarraignment was made for these offenses -- instead, the officersengaged in a search of the premises, which included the essentiallyforced entry into the petitioner's office. He was then taken to thelocal OPA headquarters. After several hours of questioning at OPAheadquarters, Davis was released. Not until one month later was thepetitioner rearrested and arraigned, and then on a charge entirelydifferent from those on which the original arrest was made. TheEmergency Price Control Act, 56 Stat. 23, 50 U.S.C.App. § 901et seq., made adequate provision for effective enforcementof the statute. So far as securing documents and papers areconcerned, the Administrator is equipped with the subpoena power, §202(c), (d), (e); in addition, the Administrator has the power toseek injunction against the acts which the petitioner was accusedof committing, § 205(a); and by appropriate proceedings theAdministrator may seek the withdrawal of the license which thepetitioner required to operate his business, § 205(f).

|328U.S. 582app|

APPENDIX.

SEARCH AND SEIZURE UNDER WARRANT*

A.Place to be searched.

Act of July 31, 1789, 1 Stat. 29, 43 (dwelling house, store,building, or other place, by day); Act of August 4, 1790, 1 Stat.145, 170 (dwelling house, store, building, or other place, by day);Act of March 3, 1791, 1 Stat. 199, 207 (any place, by day); Act ofMarch 2, 1799, 1 Stat. 627, 677-678

Page 328 U. S. 617

(dwelling house, store, building, or other place, by day); Actof April 18, 1806, 2 Stat. 379, 380 (dwelling house, store,building, or other place, by day); Act of March 1, 1809, 2 Stat.528, 530 (dwelling house, store, buildings, or other place, byday); Act of March 3, 1815, 3 Stat. 231, 232 (dwelling house,store, or other building, by day) (no warrant necessary to search avehicle); Act of March 3, 1863, 12 Stat. 737, 740 (any place orpremises); Act of February 28, 1865, 13 Stat. 441, 442 (buildingsnear boundary lines); Act of July 13, 1866, 14 Stat. 98, 152 (anypremises); Act of March 2, 1867, 14 Stat. 546, 547 (any premises);Act of March 3, 1873, 17 Stat. 598, 599 (no limitation on scope);Act of April 25, 1882, 22 Stat. 49; (dwelling house, storebuilding, or other place, by day); Act of February 10, 1891, 26Stat. 742 (any house, store, building, boat, or other place, byday); Act of August 27, 1894, 28 Stat. 509, 549, 550 (no limitationon scope); Act of July 24, 1897, 30 Stat. 151, 209 (no limitationon scope); Act of March 3, 1899, 30 Stat. 1253, 1326 (any place inAlaska); Act of March 3, 1901, 31 Stat. 1189, 1337 (no limitationon scope); Act of August 5, 1909, 36 Stat. 11, 86 (no limitation onscope); Act of February 14, 1917, 39 Stat. 903, 906, 907 (room,house, building, or other place in Alaska); Act of June 15, 1917,40 Stat. 217, 228 (no limitation on scope); Act of July 3, 1918, 40Stat. 755, 756 (any place); Act of October 28, 1919, 41 Stat. 305,308 (see Act of June 15, 1917,supra); Act ofSeptember 21, 1922, 42 Stat. 858, 937, 983 (any place, dwellinghouse, store, or place on boundary line, by day); Act of June 7,1924, 43 Stat. 650, 651 (no limitation on scope); Act of April 23,1928, 45 Stat. 448, 449 (no limitation on scope); Act of February18, 1929, 45 Stat. 1222, 1225 (see Act of July 3, 1918,supra); Act of June 17, 1930, 46 Stat. 590, 752 (dwellinghouse, by day, store, or other building or place); Act of July 2,1930, 46 Stat. 845, 846 (no limitation

Page 328 U. S. 618

on scope); Act of June 15, 1935, 49 Stat. 378, 381 (nolimitation on scope); Act of August 27, 1935, 49 Stat. 872, 874,875 (see Act of June 15, 1917,supra); Act ofApril 5, 1938, 52 Stat. 198, 199 (any place in District ofColumbia); Act of February 10, 1939, 53 Stat. 1, 436 (no limitationon scope); Act of June 28, 1940, 54 Stat. 670, 671 (no limitationon scope); Act of July 1, 1943, 57 Stat. 301, 304 (no limitation onscope); Act of February 26, 1944, 58 Stat. 100, 102 (any person,vessel, or place).

B.Objects of Search and Seizure.

Act of July 31, 1789, 1 Stat. 29, 43 (goods subject to duty);Act of August 4, 1790, 1 Stat. 145, 170 (goods subject to duty);Act of March 3, 1791, 1 Stat. 199, 207 (liquors fraudulentlydeposited, hid, or concealed); Act of March 2, 1799, 1 Stat. 627,677, 678 (goods subject to duty); Act of April 18, 1806, 2 Stat.379, 380 (articles imported from Great Britain); Act of March 1,1809, 2 Stat. 528, 530 (articles imported from Great Britain orFrance); Act of March 3, 1815, 3 Stat. 231, 232 (articles subjectto duty); Act of March 3, 1863, 12 Stat. 737, 740 (invoices,papers, and books relating to customs frauds); Act of February 28,1865, 13 Stat. 441, 442 (dutiable goods); Act of July 13, 1866, 14Stat. 98, 152 (fraud on the revenue); Act of July 18, 1866, 14Stat. 178, 187 (fraud on the revenue); Act of March 2, 1867, 14Stat. 546, 547 (invoices, books, and papers relating to customsfrauds); Act of March 3, 1873, 17 Stat. 598, 599 (obsceneliterature, literature about contraceptives, contraceptivematerials); Act of April 25, 1882, 22 Stat. 49 (merchandise onwhich duty is unpaid); Act of February 10, 1891, 26 Stat. 742, 743(counterfeit money, coins, etc., and materials used for theirmanufacture); Act of August 27, 1894, 28 Stat. 509, 549, 550(obscene and immoral literature and articles, lottery tickets);

Page 328 U. S. 619

Act of July 24, 1897, 30 Stat. 151, 209 (obscene and immoralarticles and literature, contraceptive and abortive materials,lottery tickets); Act of March 3, 1899, 30 Stat. 1253, 1326(embezzled or stolen property; articles used to commit a felony;property to be used to commit a crime); Act of March 3, 1901, 31Stat. 1189, 1337 (stolen or embezzled goods, counterfeit coins,etc. and materials used to make them, literature of obscene nature,immoral articles, gambling equipment, lottery tickets); Act ofAugust 5, 1909, 36 Stat. 11, 86 (obscene or immoral literature, orarticles, drugs, objects for abortion, lottery tickets); Act ofFebruary 14, 1917, 39 Stat. 903, 906, 907 (illegally held liquor);Act of June 15, 1917, 40 Stat. 217, 228 (stolen or embezzledproperty; property used in commission of a felony; property used toaid unlawfully a foreign government); Act of July 3, 1918, 40 Stat.755, 756 (illegally secured migratory birds or bird products); Actof October 28, 1919, 41 Stat. 305, 308 (alcoholic beverages); Actof September 21, 1922, 42 Stat. 858, 937, 983 (obscene literature,drugs for abortion, contraceptive items, lottery tickets; illegalimports); Act of June 7, 1924, 43 Stat. 650, 651 (wild life andfish improperly taken from refuge); Act of April 23, 1928, 45 Stat.448, 449 (migratory birds improperly taken from bird refuge); Actof February 18, 1929, 45 Stat. 1222, 1225 (see Act of July3, 1918,supra); Act of June 17, 1930, 46 Stat. 590, 752(merchandise on which duties unpaid); Act of July 2, 1930, 46 Stat.845, 846 (illegally caught black bass); Act of June 15, 1935, 49Stat. 378, 381 (illegally captured game and wild life and productsthereof shipped in interstate commerce); Act of August 27, 1935, 49Stat. 872, 874, 875 (illegally possessed liquor); Act of April 5,1938, 52 Stat. 198, 199 (lottery tickets, gaming devices, books forrecording gambling transactions, stolen and embezzled property,forged and counterfeit materials, equipment used forcounterfeiting,

Page 328 U. S. 620

obscene and immoral literature and materials); Act of February10, 1939, 53 Stat. 1, 436 (frauds on the revenue); Act of June 28,1940, 54 Stat. 670, 671 (subversive materials); Act of July 1,1943, 57 Stat. 301, 304 (Alaskan game illegally taken and equipmentused to make captures); Act of February 26, 1944, 58 Stat. 100, 102(illegally taken seal products and equipment used to aid in thetakings).

C.Requirements for issuance of warrant.

Act of July 31, 1789, 1 Stat. 29, 43 (suspicion of concealmentof goods, application on oath or affirmation before justice of thepeace); Act of August 4, 1970, 1 Stat. 145, 170 (suspicion ofconcealment, application on oath or affirmation before justice ofthe peace); Act of March 3, 1791, 1 Stat. 199, 207 (oath oraffirmation, establishing grounds for reasonable cause forsuspicion, before U.S. judge or justice of the peace); Act of March2, 1799, 1 Stat. 627, 677, 678 (suspicion of concealment,application, on oath, to justice of the peace); Act of April 18,1806, 2 Stat. 379, 380 (same); Act of March 1, 1809, 2 Stat. 528,530 (same); Act of March 3, 1815, 3 Stat. 231, 232 (suspicion ofconcealment, proper application, on oath, to any judge or justiceof the peace); Act of March 3, 1863, 12 Stat. 737, 740 (affidavitestablishing fraud or attempted fraud to satisfaction of U.S.district judge); Act of February 28, 1865, 13 Stat. 441, 442 (oathshowing belief or reason to believe that smuggled goods are kept onthe premises); Act of July 13, 1866, 14 Stat. 98, 152 (oath inwriting before U.S. circuit or district judge or commissioner,setting forth belief or reason to believe fraud on revenuecommitted on premises); Act of July 18, 1866, 14 Stat. 178, 187(may be issued by any district judge); Act of March 2, 1867, 14Stat. 546, 547 (complaint and affidavit, to satisfaction of U.S.district judge, of customs fraud); Act of March 3, 1873, 17 Stat.598, 599 (written complaint of violation of statute, before U.S.district or circuit judge,

Page 328 U. S. 621

setting forth belief or basis for belief, to satisfaction ofjudge, supported by oath or affirmation; Act of April 25, 1882, 22Stat. 49 (proper application, on oath, to justice of the peace,district judge of cities, police justice, or U.S. district orcircuit judge); Act of February 10, 1891, 26 Stat. 742, 743 (properoath or affirmation, showing probable cause for belief that statuteis being violated); Act of August 27, 1894, 28 Stat. 509, 549, 550(complaint in writing, founded on knowledge or belief, settingforth grounds for belief, supported by oath or affirmation, to thesatisfaction of U.S. district or circuit judge); Act of July 24,1897, 30 Stat. 151, 209 (complaint in writing of violation of act,to satisfaction of U.S. district or circuit judge, founded onknowledge or belief, setting forth basis for belief, and supportedby oath or affirmation); Act of March 3, 1899, 30 Stat. 1253, 1326(probable cause, shown by affidavit, naming or describing person,describing the property and the place to be searched, to thesatisfaction of an examining magistrate); Act of March 3, 1901, 31Stat. 1189, 1337 (complaint, under oath, before police court orjustice of the peace, setting forth belief and cause for belief ofconcealment in any place of specified articles, describing theplace to be searched and the property to be seized); Act of August5, 1909, 36 Stat. 11, 86 (complaint in writing before U.S. circuitor district judge of violation of act, to the satisfaction of thejudge, setting forth grounds for belief and supported by oath oraffirmation, a warrant may issue "conformably to theConstitution"); Act of February 14, 1917, 39 Stat. 903, 906, 907(charge, on oath or affirmation, before Alaskan district attorney,of violation of prohibition laws; place where violation occurred tobe specifically described); Act of June 15, 1917, 40 Stat. 217,228, 229 (affidavits or depositions, setting forth factsestablishing grounds or probable cause for belief that groundsexist, before U.S. or State judge, or U.S. commissioner);

Page 328 U. S. 622

Act of July 3, 1918, 40 Stat. 755, 756 (proper oath oraffirmation before U.S. judge or commissioner, showing probablecause of violation of the statute); Act of October 28, 1919, 41Stat. 305, 308 (see Act of June 15, 1917,supra);Act of September 21, 1922, 42 Stat. 858, 937, 983 (complaint inwriting before U.S. district judge, alleging violation of statute,founded on probable cause and supported by oath or affirmation andconformable to the requirements of the Constitution; cause tosuspect presence of dutiable goods, application under oath beforejustice of the peace, local, or State, or federal judges); Act ofJune 7, 1924, 43 Stat. 650, 651 (proper oath or affirmation beforeU.S. judge or commissioner showing probable cause of violation);Act of April 23, 1928, 45 Stat. 448, 449 (proper oath oraffirmation, before U.S. judge or commissioner, showing probablecause of violation of statute); Act of February 18, 1929, 45 Stat.1222, 1225 (see Act of July 3, 1918,supra); Actof June 17, 1930, 46 Stat. 590. 752 (suspicion of concealment ofdutiable goods, application under oath to any justice of the peace,local, State, or federal judge); Act of July 2, 1930, 46 Stat. 845,846 (proper oath or affirmation before U.S. judge or commissionerestablishing probable cause that statute was violated); Act of June15, 1935, 49 Stat. 378, 381 (proper oath or affirmation before U.S.judge or commissioner establishing probable cause that statuteviolated); Act of August 27, 1935, 49 Stat. 872, 874, 875(see Act of June 15, 1917, supra); Act of April 5, 1938,52 Stat. 198, 199 (complaint under oath, before the police courtfor the District of Columbia, setting forth belief or cause forbelief, particularly describing the place to be searched, thearticles to be seized); Act of February 10, 1939, 53 Stat. 1, 436(oath in writing before U.S. district judge or commissioner,setting forth reason to believe that

Page 328 U. S. 623

fraud on revenue committed or being committed); Act of June 28,1940, 54 Stat. 670, 671 (see Act of June 15, 1917,supra); Act of July 1, 1943, 57 Stat. 301, 304 (properoath or affirmation, showing probable cause of violation of Alaskangame laws, before U.S. judge or commissioner); Act of February 26,1944, 58 Stat. 100, 102 (oath or affirmation before U.S. judge orcommissioner, showing probable cause of violation of statute).

* Congress has passed numerous statutes authorizing inspectionof defined premises and seizures without warrants. These are allvery particularized acts, relating mostly to the inspection ofvessels and vehicles and the seizure of various types of contrabandgoods. Most of this legislation comes within the exceptionshistorically recognized at the time of the adoption of the FourthAmendment as to recapture of stolen goods and search of vehiclesand vessels because of their fugitive nature. In such a mass oflegislation, it would not be surprising if some of the specificacts fell afoul of the considerations which invalidated thelegislation in theBoyd case,116 U.S. 616. What is significant about this legislation isthe recognition by Congress of the necessity for specificCongressional authorization even for the search of vessels andother moving vehicles and the seizures of goods technicallycontraband.

MR. JUSTICE RUTLEDGE, dissenting.

I am substantially in accord with the views expressed by MR.JUSTICE FRANKFURTER in his exhaustive opinion as to the controllingprinciples which should govern in the disposition of this case.Perhaps it should be added that the evidence does not clearly showthat the officer who flashed the light into the window was in factattempting to open it by force or to do more than observe theinterior. But the situation was such that his action clearlycreated in Davis' mind the impression that he either was enteringby force or intended to do so. It therefore must be taken, I think,that Davis' so-called consent was induced by this apparentcompulsion, the very kind of thing the Fourth Amendment wasdesigned to prevent. There was no such consent as would legalizethe entry and search.

Moreover, whatever may be the scope of search incident to lawfularrest for a misdemeanor, I know of no decision which goes so faras to rule that this right of search extends to breaking andentering locked premises by force. That was not done here. But thesearch followed on consent given in the reasonable belief that itwas necessary to avoid the breaking and entry. I think it wastherefore in no better case legally than if in fact the breakingand forcible entry had occurred. The search was justified neitherby consent nor by the doctrine of reasonable search as incident toa lawful arrest.