U.S. Supreme Court

Harris v. United States,331U.S. 145 (1947)Harris v. UnitedStates

No. 34

Argued December 12, 13,1946

Decided May 5, 1947

331U.S. 145

CERTIORARI TO THE CIRCUIT COURT OFAPPEAL

FOR THE TENTHCIRCUIT

Syllabus

1. Upon warrants charging violations of the Mail Fraud Statuteand the National Stolen Property Act, five federal agents arrestedan accused in the living room of an apartment which was in hisexclusive possession. Without a search warrant, they searched theapartment (living room, bedroom, kitchen and bath) intensively forfive hours, for two canceled checks and any other means by whichthe crimes charged might have been committed. Beneath some clothesin a bedroom bureau drawer, they discovered a sealed envelopemarked "personal papers" of the accused. This was torn open andfound to contain several draft cards which were property of theUnited States and the possession of which was a federal offense.Upon the evidence thus obtained, the accused was convicted ofviolations of the Selective Training & Service Act of 1940 and§ 48 of the Criminal Code.

Held: The evidence was not obtained in violation of theprovision of the Fourth Amendment against unreasonable searches andseizures, nor did its use violate the privilege of the accusedagainst self-incrimination under the Fifth Amendment. Pp.331 U. S.150-155.

2. A search incidental to an arrest may, under appropriatecircumstances, extend beyond the person of the one arrested to thepremises under his immediate control. P.331 U. S.151.

3. A search incidental to an arrest, which is otherwisereasonable, is not rendered invalid by the fact that the placesearched is a dwelling, rather than a place of business. P.331 U. S.151.

4. The search in this case was not rendered invalid by the factthat it extended beyond the room in which the accused was arrested.P.331 U. S.152.

5. The search in this case was not more intensive than wasreasonably demanded by the circumstances. Pp.331 U. S.152-153.

6. The objects sought and those actually seized in this casewere properly subject to seizure. P.331 U. S.154.

7. It is of no significance in this case that the draft cardswhich were seized were unrelated to the crimes for which theaccused was arrested. P.331 U. S.154.

Page 331 U. S. 146

8. Since possession of the draft cards by the accused was aserious and continuing offense against federal laws, upon discoveryof the cards, a crime was being committed in the very presence ofthe agents conducting the search. Pp.331 U. S.154-155.

9. If entry upon the premises be authorized and the search whichfollows be valid, there is nothing in the Fourth Amendment whichinhibits the seizure by law enforcement agents of governmentproperty the possession of which is a crime, even though theofficers are not aware that such property is on the premises whenthe search is initiated. P.331 U. S.155.

10. That abuses sometimes occur is no basis for giving sinistercoloration to procedures which are basically reasonable. P.331 U. S.155.

151 F.2d 837, affirmed.

MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

Petitioner was convicted on sixteen counts of an indictment[Footnote 1] charging theunlawful possession, concealment and

Page 331 U. S. 147

alteration of certain Notice of Classification Cards andRegistration Certificates in violation of § 11 of the SelectiveRaining and Service Act of 1940, [Footnote 2] and of § 48 of the Criminal Code. [Footnote 3] Prior to the trial,petitioner moved to suppress the evidence, which served as thebasis for the conviction, on the grounds that it had been obtainedby means of an unreasonable search and seizure contrary to theprovisions of the Fourth Amendment, [Footnote 4] and that to permit the introduction of thatevidence would be to violate the self-incrimination clause of theFifth Amendment. [Footnote5]

Page 331 U. S. 148

The motion to suppress was denied, and petitioner's numerousobjections to the evidence at the trial were overruled. The CircuitCourt of Appeals affirmed the conviction. 151 F.2d 837. Certiorariwas granted because of the importance of the questionspresented.

Two valid warrants of arrest were issued. One charged thatpetitioner and one Moffett had violated the Mail Fraud Statute[Footnote 6] by causing aletter addressed to the Guaranty Trust Company of New York to beplaced in the mails for the purpose of cashing a forged check for$25,000 drawn on the Mudge Oil Company in pursuance of a scheme todefraud. The second warrant charged that petitioner and Moffett,with intent to defraud certain banks and the Mudge Oil Company, hadcaused a $25,000 forged check to be transported in interstatecommerce, in violation of § 3 of the National Stolen Property Act.[Footnote 7]

Five agents of the Federal Bureau of Investigation, acting underthe authority of the two warrants, went to the apartment ofpetitioner in Oklahoma City and there arrested him. The apartmentconsisted of a living room, bedroom, bathroom and kitchen.Following the arrest, which took place in the living room,petitioner was handcuffed and a search of the entire apartment wasundertaken. The agents stated that the object of the search was tofind two $10,000 canceled checks of the Mudge Oil Company which hadbeen stolen from that company's office and which were thought tohave been used in effecting the forgery. There was evidenceconnecting petitioner with that theft. In addition, the search wassaid to be for the purpose of locating

"any means that might

Page 331 U. S. 149

be used to commit these two crimes, such as burglary tools,pens, or anything that could be used in a confidence game of thistype. [Footnote 8]"

One agent was assigned to each room of the apartment and, overpetitioner's protest, a careful and thorough search proceeded forapproximately five hours. As the search neared its end, one of theagents discovered in a bedroom bureau drawer a sealed envelopemarked "George Harris, personal papers." The envelope was tornopen, and on the inside a smaller envelope was found containingeight Notice of Classification cards and 11 RegistrationCertificates bearing the stamp of Local Board No. 7 of OklahomaCounty. It was this evidence upon which the conviction in theDistrict Court was based, and against which the motion to suppresswas directed. It is conceded that the evidence is in no way relatedto the crimes for which petitioner was initially arrested, and thatthe search which led to its discovery was not conducted under theauthority of a search warrant. [Footnote 9]

In denying the motion to suppress, the District Court wrote noopinion. The Circuit Court of Appeals affirmed

Page 331 U. S. 150

the conviction, finding that the search was carried on in goodfaith by the federal agents for the purposes expressed, that it wasnot a general exploratory search for merely evidentiary materials,and that the search and seizure were a reasonable incident topetitioner's arrest. [Footnote10]

If it is true, as petitioner contends, that the draft cards wereseized in violation of petitioner's rights under the FourthAmendment, the conviction based upon evidence so obtained cannot besustained.Boyd v. United States,116 U.S. 616 (1886);Weeks v. United States,232 U. S. 383(1914);Agnello v. United States,269 U. S.20 (1925);Segurola v. United States,275 U. S. 106(1927). This Court has consistently asserted that the rights ofprivacy and personal security protected by the Fourth Amendment

". . . are to be regarded as of the very essence ofconstitutional liberty; and that the guaranty of them is asimportant and as imperative as are the guaranties of the otherfundamental rights of the individual citizen. . . ."

Gouled v. United States,255 U.S. 298,255 U. S. 304(1921).

This Court has also pointed out that it is only unreasonablesearches and seizures which come within the constitutionalinterdict. The test of reasonableness cannot be stated in rigid andabsolute terms. "Each case is to be decided on its own facts andcircumstances."Go-Bart Importing Company v. UnitedStates,282 U. S. 344,282 U. S. 357(1931).

The Fourth Amendment has never been held to require that everyvalid search and seizure be effected under the authority of asearch warrant. Search and seizure incident to lawful arrest is apractice of ancient origin, [Footnote 11] and has long been an integral part of thelaw enforcement

Page 331 U. S. 151

procedures of the United States [Footnote 12] and of the individual states. [Footnote 13]

The opinions of this Court have clearly recognized that thesearch incident to arrest may, under appropriate circumstances,extend beyond the person of the one arrested to include thepremises under his immediate control. Thus, inAgnello v.United States, supra, at269 U. S. 30, itwas said:

"The right without a search warrant contemporaneously to searchpersons lawfully arrested while committing crime and to search theplace where the arrest is made in order to find and seize thingsconnected with the crime as its fruits or as the means by which itwas committed, as well as weapons and other things of effect anescape from custody is not to be doubted. [Footnote 14]"

It is equally clear that a search incident to arrest, which isotherwise reasonable, is not automatically rendered invalid by thefact that a dwelling place, as contrasted to a business premises,is subjected to search. [Footnote 15]

Page 331 U. S. 152

Nor can support be found for the suggestion that the searchcould not validly extend beyond the room in which petitioner wasarrested. [Footnote 16]Petitioner was in exclusive possession of a four room apartment.His control extended quite as much to the bedroom in which thedraft cards were found as to the living room in which he wasarrested. The canceled checks and other instrumentalities of thecrimes charged in the warrants could easily have been concealed inany of the four rooms of the apartment. Other situations may arisein which the nature and size of the object sought or the lack ofeffective control over the premises on the part of the personsarrested may require that the searches be less extensive. But thearea which reasonably may be subjected to search is not to bedetermined by the fortuitous circumstance that the arrest tookplace in the living room, as contrasted to some other room of theapartment.

Similar considerations are applicable in evaluating petitioner'scontention that the search was, in any event, too intensive. Hereagain, we must look to the particular circumstances of theparticular case. As was observed by the Circuit Court of Appeals:"It is not likely that the checks would be visibly accessible. Bytheir very nature, they would have been kept in some secluded spot.. . ." The same meticulous investigation which would be appropriatein a search for two small canceled checks could not be consideredreasonable where agents are seeking a stolen automobile or anillegal still. We do not believe that

Page 331 U. S. 153

the search in this case went beyond that which the situationreasonably demanded.

This is not a case in which law enforcement officials haveinvaded a private dwelling without authority and seized evidence ofcrime.Amos v. United States,255 U.S. 313 (1921);Byars v. United States,273 U. S. 28(1927);Nueslein v. District of Columbia, 73 App.D.C. 85,115 F.2d 690 (1940). Here, the agents entered the apartment underthe authority of lawful warrants of arrest. Neither was the entrytortious nor was the arrest which followed in any senseillegal.

Nor is this a case in which law enforcement officers haveentered premises ostensibly for the purpose of making an arrest,but in reality for the purpose of conducting a general exploratorysearch for merely evidentiary materials tending to connect theaccused with some crime.Go-Bart Company v. United States,supra; Lefkowitz v. United States, supra. In the present casethe agents were in possession of facts indicating petitioner'sprobable guilt of the crimes for which the warrants of arrest wereissued. The search was not a general exploration, but wasspecifically directed to the means and instrumentalities by whichthe crimes charged had been committed, particularly the twocanceled checks of the Mudge Oil Company. The Circuit Court ofAppeals found and the District Court acted on the assumption thatthe agents conducted their search in good faith for the purpose ofdiscovering the objects specified. That determination is supportedby the record. The two canceled checks were stolen from the officesof the Mudge Oil Company. There was evidence connecting petitionerwith that theft. The search which followed the arrest wasappropriate for the discovery of such objects. Nothing in theagents conduct was inconsistent with their declared purpose.

Page 331 U. S. 154

Furthermore, the objects sought for and those actuallydiscovered were properly subject to seizure. This Court hasfrequently recognized the distinction between merely evidentiarymaterials, on the one hand, which may not be seized either underthe authority of a search warrant or during the course of a searchincident to arrest, and on the other hand, those objects which mayvalidly be seized, including the instrumentalities and means bywhich a crime is committed, the fruits of crime such as stolenproperty, weapons by which escape of the person arrested might beeffected, and property the possession of which is a crime.[Footnote 17] Clearly, thechecks and other means and instrumentalities of the crimes chargedin the warrants toward which the search was directed, as well asthe draft cards which were in fact seized, fall within that classof objects properly subject to seizure. Certainly this is not acase of search for or seizure of an individual's private papers,nor does it involve a prosecution based upon the expression ofpolitical or religious views in such papers. [Footnote 18]

Nor is it a significant consideration that the draft cards whichwere seized were not related to the crimes for which petitioner wasarrested. Here, during the course of a valid search, the agentscame upon property of the United States in the illegal custody ofthe petitioner. It was property to which the Government wasentitled to possession. [Footnote 19]

Page 331 U. S. 155

In keeping the draft cards in his custody petitioner was guiltyof a serious and continuing offense against the laws of the UnitedStates. A crime was thus being committed in the very presence ofthe agents conducting the search. Nothing in the decisions of thisCourt gives support to the suggestion that, under suchcircumstances, the law enforcement officials must impotently standaside and refrain from seizing such contraband material. If entryupon the premises be authorized and the search which follows bevalid, there is nothing in the Fourth Amendment which inhibits theseizure by law enforcement agents of government property thepossession of which is a crime, even though the officers are notaware that such property is on the premises when the search isinitiated. [Footnote 20]

The dangers to fundamental personal rights and interestsresulting from excesses of law enforcement officials committedduring the course of criminal investigations are not illusory. ThisCourt has always been alert to protect against such abuse. But weshould not permit our knowledge that abuses sometimes occur to givesinister coloration to procedures which are basically reasonable.We conclude that in this case the evidence which formed the basisof petitioner's conviction was obtained without violation ofpetitioner's rights under the Constitution.

Affirmed.

[Footnote 1]

The indictment contained nineteen counts. Petitioner wasconvicted on the second which charged the fraudulent concealment of8 Notice of Classification Cards, DSS Form 57, and 11 RegistrationCertificates, DSS Form 2; the third which charged fraudulentpossession with intent to convert to his own use theabove-mentioned property; the fourth through tenth charging theunlawful alteration of a Notice of Classification card; the twelfthand fourteenth through nineteenth charging the unlawful possessionof an altered Notice of Classification Card. Petitioner wasacquitted on the first count which charged theft of governmentproperty. Count 11, which charged alteration of a Notice ofClassification card, and Count 13, which charged possession of analtered card, were dismissed. Petitioner was sentenced toimprisonment for a term of five years on each of the sixteen countsindicated, the sentences to run concurrently.

[Footnote 2]

54 Stat. 885, 894, 895, 50 U.S.C.App. § 311. Section 623.61-2 ofthe Selective Service Regulations states that "It shall be aviolation of these regulations for any person to have in hispossession" a Notice of Classification not regularly issued to himor to alter or forge any Notice of Classification. Section 11 ofthe Act makes criminal the failure to perform any duty required bythe Regulations punishable by imprisonment for not more than fiveyears or a fine of not more than $10,000 or both.

[Footnote 3]

35 Stat. 1098, 18 U.S.C. § 101. Insofar as pertinent, thesection provides:

"Whoever shall receive, conceal, or aid in concealing, or shallhave or retain in his possession with intent to convert to his ownuse or gain, any . . . property of the United States, which hastheretofore been embezzled, stolen, or purloined by any otherperson, knowing the same to have been so embezzled, stolen, orpurloined, shall be fined not more than $5,000, or imprisoned notmore than five years, or both. . . ."

[Footnote 4]

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."

[Footnote 5]

Insofar as pertinent, the Fifth Amendment provides: "No person .. . shall be compelled in any Criminal Case to be a witness againsthimself. . . ."

[Footnote 6]

35 Stat. 1130, 1131, 18 U.S.C. § 338.

[Footnote 7]

53 Stat. 1178, 1179, 18 U.S.C. § 413et seq.

[Footnote 8]

The agents who testified in the proceedings in the trial courtclearly stated that the object of the search was the means employedin committing the crimes charged in the warrants of arrest. None ofthe subsequent statements of the agents, if read in their context,is in conflict with that assertion.

[Footnote 9]

It appears that the checks were never found. Respondent concedesthat in addition to the draft cards, seven pens and a quantity oftissue paper capable of being employed as instruments of forgerywere seized. Also taken were 27 pieces of celluloid which at thetrial were demonstrated to be useful in picking a lock. It wasrespondent's theory that petitioner had obtained the canceledchecks by theft from the offices of the Mudge Oil Company, and thatentry into the offices had been achieved in that manner. Petitioneralleged in his motion to suppress that various other items weretaken, including sheets of blank paper, expense bills and receipts,personal mail letters, etc.

[Footnote 10]

The opinion of the Circuit Court of Appeals is reported at 151F.2d 837.

[Footnote 11]

See opinion of Cardozo, J., inPeople v.Chiagles, 237 N.Y. 193, 142 N.E. 583 (1923);Trial ofHenry and John Sheares, 27 How.St.Tr. 255, 321 (1798).

[Footnote 12]

Examples of the practice are to be found in numerous cases inthis Court and in the lower federal courts.Weeks v. UnitedStates, supra; Agnello v. United States, supra; Carroll v. UnitedStates,267 U. S. 132(1925);United States v. Lee,274 U.S. 559 (1927);Marron v. United States,275 U. S. 192(1927);Go-Bart Importing Company v. United States, supra;United States v. Lefkowitz,285 U. S. 452(1932);Parks v. United States, 76 F.2d 709 (1935);United States v. 71.41 Ounces Gold, 94 F.2d 17 (1938);Matthews v. Correa, 135 F.2d 534 (1943).

[Footnote 13]

Argetakis v. State, 24 Ariz. 599, 212 Pac. 372 (1923);Commonwealth v. Phillips, 224 Ky. 117, 5 S.W.2d 887(1928);Banks v. Farwell, 21 Pick. (Mass.) 156 (1839).And see cases cited in 32 A.L.R. 697; 51 A.L.R. 434.

[Footnote 14]

Similar expressions may be found in the cases cited in notes12 and |12 and S. 145fn14|>13. There is nothingin the Go-Bart and Lefkowitz cases, supra, which casts doubt onthis proposition.

[Footnote 15]

Stricter requirements of reasonableness may apply where adwelling is being searched.Davis v. United States,328 U. S. 582(1946);Matthews v. Correa, supra, 135 F.2d at 537.

[Footnote 16]

Searches going beyond the room of arrest were upheld in theAgnello andMarron cases,supra. Thesearches found to be invalid in theGo-Bart andLefkowitz cases were so held for reasons other than theareas covered by the searches. It has not been the understanding ofthe lower federal courts that the search in every case must be soconfined.See, for example: United States v. Lindenfeld,142 F.2d 829 (1944);Matthews v. Correa, supra; United Statesv. 71.41 Ounces Gold, supra.

[Footnote 17]

Boyd v. United States, supra, at116 U. S.623-624;Weeks v. United States, supra, at232 U. S.392-393;Gouled v. United States, supra, at255 U. S. 309;Carroll v. United States, supra, at267 U. S.149-150;Agnello v. United States, supra, at269 U. S. 30;Marron v. United States, supra, at275 U. S. 199;United States v. Lefkowitz, supra, at285 U. S.465-466. The same distinction is drawn in numerous casesin the lower federal courts:Matthews v. Correa, supra,135 F.2d at 537;United States v. Lindenfeld, supra, 142F.2d at 832;In re Ginsberg, 147 F.2d 749, 751 (1945).

[Footnote 18]

Entick v. Carrington, 19 How.St.Tr., 1030,1073-1074.

[Footnote 19]

Davis v. United States, supra, at328 U. S. 590.And see Boyd v. United States, supra, at116 U. S.623-624;Wilson v. United States,221 U.S. 361,221 U. S. 380(1911).

[Footnote 20]

Milam v. United States, 296 F. 629 (1924);UnitedStates v. Old Dominion Warehouse, 10 F.2d 736 (1926);United States v. Two Soaking Units, 48 F.2d 107 (1931);Paper v. United States, 53 F.2d 184 (1931);Benton v.United States, 70 F.2d 24 (1934);Matthews v. Correa,supra.

MR. JUSTICE FRANKFURTER, with whom MR. JUSTICE MURPHY and MR.JUSTICE RUTLEDGE concur, dissenting.

Because I deem the implications of the Court's decision to haveserious threats to basic liberties, I consider it important tounderscore my concern over the outcome of this

Page 331 U. S. 156

case. InDavis v. United States,328 U.S. 582, the Court narrowed the protection of the FourthAmendment [Footnote 2/1] byextending the conception of "public records" for purpose of searchwithout warrant. [Footnote 2/2] TheCourt now goes far beyond prior decisions in another direction --it permits rummaging throughout a house without a search warrant onthe ostensible ground of looking for the instruments of a crime forwhich an arrest, but only an arrest, has been authorized. If onlythe fate of the Davises and the Harrises were involved, one mightbe brutally indifferent to the ways by which they get theirdeserts. But it is precisely because the appeal to the FourthAmendment is so often made by dubious characters that itsinfringements call for alert and strenuous resistance. Freedom ofspeech, of the press, of religion, easily summon powerful supportagainst encroachment. The prohibition against unreasonable searchand seizure is normally invoked by those accused of crime, andcriminals have few friends. The implications of such encroachment,however, reach far beyond the thief or the blackmarketeer. I cannotgive legal sanction to what was done in this case without acceptingthe implications of such a decision for the future,

Page 331 U. S. 157

implications which portend serious threats against preciousaspects of our traditional freedom.

If I begin with some general observations, it is not because Iam unmindful of Mr. Justice Holmes' caution that "[g]eneralpropositions do not decide concrete cases."Lochner v. NewYork,198 U. S. 45,198 U. S. 76.Whether they do or not often depends on the strength of theconviction with which such "general propositions" are held. Aprinciple may be accepted "in principle," but the impact of animmediate situation may lead to deviation from the principle. Or,while accepted "in principle," a competing principle may seem moreimportant. Both these considerations have doubtless influenced theapplication of the search and seizure provisions of the Bill ofRights. Thus, one's views regarding circumstances like those herepresented ultimately depend upon one's understanding of the historyand the function of the Fourth Amendment. A decision may turn onwhether one gives that Amendment a place second to none in the Billof Rights, or considers it on the whole a kind of nuisance, aserious impediment in the war against crime.

The provenance of the Fourth Amendment bears on its scope. Itwill be recalled that James Otis made his epochal argument againstgeneral warrants in 1761. [Footnote2/3]

Page 331 U. S. 158

Otis' defense of privacy was enshrined in the MassachusettsConstitution of 1780 in the following terms:

"XIV. Every subject has a right to be secure from allunreasonable searches, and seizures of his person, his houses, hispapers, and all his possession. All warrants, therefore, arecontrary to this right if the cause or foundation of them be notpreviously supported by oath or affirmation, and if the order inthe warrant to a civil officer, to make search in suspected places,or to arrest one or more suspected persons, or to seize theirproperty, be not accompanied with a special designation of thepersons or objects of search, arrest, or seizure; and no warrantought to be issued but in cases, and with the formalitiesprescribed by the laws."

In the meantime, Virginia, in her first Constitution (1776),incorporated a provision on the subject narrower in scope:

"X. That general warrants, whereby an officer or messenger maybe commanded to search suspected places without evidence of a factcommitted, or to seize any person or persons not named, or whoseoffence is not particularly described and supported by evidence,are grievous and oppressive, and ought not to be granted."

When Madison came to deal with safeguards against searches andseizures in the United States Constitution, he did not draw on theVirginia model, but based his proposal on the Massachusetts form.This is clear proof that Congress meant to give wide, and notlimited, scope to this protection against police intrusion.

Page 331 U. S. 159

Historically, we are dealing with a provision of theConstitution which sought to guard against an abuse that more thanany one single factor gave rise to American independence. JohnAdams surely is a competent witness on the causes of the AmericanRevolution. And he it was who said of Otis' argument against searchby the police, not unlike the one before us: "American independencewas then and there born." 10 Adams, Works 247. That which laybehind immunity from police intrusion without a search warrant wasexpressed by Mr. Justice Brandeis when he said that the makers ofour Constitution

"conferred, as against the government, the right to be let alone-- the most comprehensive of rights and the right most valued bycivilized men. To protect, that right, every unjustifiableintrusion by the government upon the privacy of the individual,whatever the means employed, must be deemed a violation of theFourth Amendment."

To be sure, that was said by him in a dissenting opinion inwhich he, with Mr. Justice Holmes, Mr. Justice Butler and Mr.Justice Stone, applied the prohibition of the Fourth Amendment towiretapping without statutory authority.Olmstead v. UnitedStates,277 U. S. 438,277 U. S. 478.But, with only an occasional deviation, a series of decisions ofthis Court has construed the Fourth Amendment "liberally tosafeguard the right of privacy."United States v.Lefkowitz,285 U. S. 452,285 U. S. 464.(See an analysis of the cases in the331U.S. 145app|>Appendix to this opinion.) Thus, the federalrule established inWeeks v. United States,232 U.S. 383, as against the rule prevailing in many States,renders evidence obtained through an improper search inadmissibleno matter how relevant.See People v. Defore, 242 N.Y. 13,150 N.E. 585, and Chafee, the Progress of the Law 1919-1922, 35Harv.L.Rev. 673, 694et seq. And

Page 331 U. S. 160

long before theWeeks case,Boyd v. UnitedStates,116 U. S. 616,gave legal effect to the broad historic policy underlying theFourth Amendment. [Footnote 2/4]TheBoyd opinion has been the guide to the interpretationof the Fourth Amendment to which the Court has most frequentlyrecurred.

It is significant that the constitution of every State containsa clause like that of the Fourth Amendment and often in its precisewording. Nor are these constitutional provisions historicsurvivals. New York was alone in not having a safeguard againstunreasonable search and seizure in its constitution. In that State,the privilege of privacy was safeguarded by a statute. It tellsvolumes that, in 1938, New York, not content with statutoryprotection, put the safeguard into its constitution. [Footnote 2/5] If

Page 331 U. S. 161

one thing on this subject can be said with confidence, it isthat the protection afforded by the Fourth Amendment against searchand seizure by the police, except under the closest judicialsafeguards, is not an outworn bit of Eighteenth Century romanticrationalism, but an indispensable need for a democraticsociety.

The Fourth Amendment, we have seen, derives from the similarprovision in the first Massachusetts Constitution. We may thereforelook to the construction which the early Massachusetts court placedupon the progenitor of the Fourth Amendment:

"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, his papers,and possessions, 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."

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

The plain import of this is that searches are "unreasonable"unless authorized by a warrant, and a warrant

Page 331 U. S. 162

hedged about by adequate safeguards. "Unreasonable" is not to bedetermined with reference to a particular search and seizureconsidered in isolation. The "reason" by which search and seizureis to be tested is the "reason" that was written out of historicexperience into the Fourth Amendment. This means that, with minorand severely confined exceptions, inferentially a part of theAmendment, every search and seizure is unreasonable when madewithout a magistrate's authority expressed through a validly issuedwarrant.

It is noteworthy that Congress has consistently and carefullyrespected the privacy protected by the Fourth Amendment. Becausethey realized that the dangers of police abuse were persistingdangers, the Fathers put the Fourth Amendment into theConstitution. Because these dangers are inherent in the temptationsand the tendencies of the police, Congress has always ways beenchary in allowing the use of search warrants. When it hasauthorized them, it has circumscribed their use with particularity.In scores upon score of Acts, Congress authorized search by warrantonly for particular situations and in extremely restricted ways.Despite repeated importunities by Attorneys General of the UnitedStates, Congress long refused to make search by warrant generallyavailable as a resource in aid of criminal prosecution. It did notdo so until the first World War, and even then it did not do soexcept under conditions carefully circumscribed.

The whole history of legislation dealing with search and seizureshows how warily Congress has walked precisely because of theFourth Amendment. A search of the entire premises for instrumentsof crime merely as an incident to a warrant of arrest has neverbeen authorized by Congress. Nor has Congress ever authorized suchsearch without a warrant even for stolen or contraband goods. Onthe contrary, it is precisely for the search of such goods

Page 331 U. S. 163

that specific legislative authorization was given by Congress.Warrants even for such search required great particularity, andcould be issued only on adequate grounds. (For a table ofCongressional legislation, with indication as to its scope,see the Appendix to the dissenting opinion in theDavis case, 328 U.S. at328 U. S.616.)

This is the historic background against which the undisputedfacts of this case must be projected. For me, the background groundis respect for that provision of the bill of Rights which iscentral to enjoyment of the other guarantees of the Bill of Rights.How can there be freedom of thought or freedom of speech or freedomof religion if the police can, without warrant, search your houseand mine from garret to cellar merely because they are executing awarrant of arrest? How can men feel free if all their papers may besearched, as an incident to the arrest of someone in the house, onthe chance that something may turn up, or rather, be turned up?Yesterday the justifying document was an illicit ration book;tomorrow it may be some suspect piece of literature.

The Court's reasoning, as I understand it, may be brieflystated. The entry into Harris' apartment was lawful because theagents had a warrant of arrest. The ensuing search was lawfulbecause, as an incident of a lawful arrest, the police may searchthe premises on which the arrest took place, since everything inthe apartment was in the "possession" of the accused, and subjectto his control. It was lawful, therefore, for the agents to rummagethe apartment in search for "instruments of the crime." Since thesearch was lawful, anything illicit discovered in the course of thesearch was lawfully seized. In any event, the seizure was lawfulbecause the documents found were property of the United States, andtheir possession was a continuing crime against the UnitedStates.

Page 331 U. S. 164

Much is made of the fact that the entry into the house waslawful. But we are not confined to issues of trespass. Theprotection of the Fourth Amendment extends to improper searches andseizures, quite apart from the legality of an entry. The Amendmentasserts the "right of the people to be secure" not only "in theirpersons, houses," but also in their "papers, and effects, againstunreasonable searches and seizures." It is also assumed that,because the search was allegedly for instruments of the crime forwhich Harris was arrested, it wasipso facto justified asan incident of the arrest. It would hardly be suggested that such asearch could be made without warrant if Harris had been arrested onthe street. How, then, is rummaging a man's closets and drawersmore incidental to the arrest because the police chose to arresthim at home? For some purposes, to be sure, a man's house and itscontents are deemed to be in his "possession" or "control" evenwhen he is miles away. Because this is a mode of legal reasoningrelevant to disputes over property, the usual phrase for suchnonphysical control is "constructive possession." But this mode ofthought and these concepts are irrelevant to the application of theFourth Amendment, and hostile to respect for the liberties which itprotects. Due regard for the policy of the Fourth Amendmentprecludes indulgence in the fiction that the recesses of a man'shouse are like the pickets of the clothes he wears at the time ofhis arrest.

To find authority for ransacking a home merely from authorityfor the arrest of a person is to give a novel and ominous renderingto a momentous chapter in the history of Anglo-American freedom. AnEnglishman's home, though a hovel, is his castle, precisely becausethe law secures freedom from fear of intrusion by the police exceptunder carefully safeguarded authorization by a magistrate.

Page 331 U. S. 165

To derive from the common law right to search the person as anincident of his arrest the right of indiscriminate search of allhis belongings is to disregard the fact that the Constitutionprotects both unauthorized arrest and unauthorized search.Authority to arrest does not dispense with the requirement ofauthority to search.

But even if the search was reasonable, it does not follow thatthe seizure was lawful. If the agents had obtained a warrant tolook for the cancelled checks, they could not be entitled to seizeother items discovered in the process.Marron v. UnitedStates,275 U. S. 192,275 U. S. 196.[Footnote 2/6] Harris would havebeen able to reclaim them by a motion to suppress evidence. Such isthe policy of the Fourth Amendment, recognized by Congress andreformulated in the New Rules of Criminal Procedure adopted onlylast year.See Rule 41(e) superseding the Act of June 15,1917, 40 Stat. 228, 229. The Court's decision achieves the noveland startling result of making the scope of search without warrantbroader than an authorized search.

These principles are well established. While a few of the lowercourts have uncritically and unwarrantedly extended the verylimited search without warrant of a person upon his lawful arrest,such extension is hostile to the policy of the Amendment, and isnot warranted by the precedents of this Court.

"It is important to keep clear the distinction betweenprohibited searches, on the one hand, and improper seizures, on theother.See Mr. Justice Miller inBoyd v. UnitedStates,116 U. S. 616,116 U. S.638,116 U. S. 641. Thus, it isunconstitutional to seize a person's private papers, though thesearch

Page 331 U. S. 166

in which they were recovered was perfectly proper,e.g.,Gouled v. United States,255 U. S. 298. It isunconstitutional to make an improper search even for articles thatare appropriately subject to seizure,e.g., Amos v. UnitedStates,255 U. S. 313;Byars v.United States,273 U. S. 28;Taylor v.United States,286 U. S. 1. And a search may beimproper because of the object it seeks to uncover,e.g., Weeksv. 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, [275 U.S.192], is the only decision in which the dicta were reflected inthe result. That case has been a source of confusion to the lowercourts. Thus, the Circuit Court of Appeals for the Second Circuitfelt that theMarron case required it to give a morerestricted view to the prohibitions of the Fourth Amendment thanthat court had expounded inUnited States v.Kirschenblatt, 16 F.2d 202,see Go-Bart Importing Co. v.United States, sub nom. United States v. Gowen, 40 F.2d 593,only to find itself reversed here,Go-Bart Importing Co.v. United States, supra [282U.S. 344], partly on the authority of theKirschenblattdecision, which, after theMarron case, it thought itmust disown. The uncritical application of the right of search onarrest in theMarron case has surely been displaced byGo-Bart Importing Co. v. United States, supra, and evenmore drastically byUnited States v. Lefkowitz,supra [285 U.S.452], unless one is to infer that an earlier case qualifieslater decisions although these later decisions have explicitlyconfined the earlier case."

Davis v. United States, 328 U.S. at328 U. S.612-613 (dissenting opinion).

Page 331 U. S. 167

It is urged that, even if the search was not justified, once itwas made and the illicit documents discovered, they could beseized, because their possession was a "continuing offense"committed "in the very presence of the agents." Apparently, then, asearch undertaken illegally may retrospectively, by a legalfigment, gain legality from what happened four hours later. This isto defeat the prohibition against lawless search and seizure by theapplication of an inverted notion of trespassab initio.Here, an unconstitutional trespassab initioretrospectively acquires legality. Thus, the decision findssatisfaction of the constitutional requirement by circularreasoning. Search requires authority; authority to search is gainedby what may be found during search without authority. By thisreasoning, every illegal search and seizure may be validated if thepolice find evidence of crime. The result can hardly be todiscourage police violation of the constitutional protection.

If the search is illegal when begun, as it clearly was in thiscase if past decisions mean anything, it cannot retrospectivelygain legality. If the search was illegal, the resulting seizure inthe course of the search is illegal. It is no answer to say thatpossession of a document may itself be a crime. There is nosuggestion here that the search was based on even a suspicion thatHarris was in possession of illicit documents. The search wasjustified, and is justified, only in connection with the offensefor which there was a warrant of arrest. But unless we are going tothrow to the winds the latest unanimous decisions of this Court onthe allowable range of search without warrant incidental to lawfularrest,Go-Bart Importing Co. v. United States,282 U. S. 344, andUnited States v. Lefkowitz,285 U.S. 452, this was an unlawful search which renderedunavailable as evidence everything seized in the course of it. Thatthe agents might have obtained a warrant to make the search onlyemphasizes the illegality

Page 331 U. S. 168

of their conduct. In the words of Mr. Justice Holmes, speakingfor the Court, the precious constitutional rights "against unlawfulsearch and seizure are to be protected even if the same resultmight have been achieved in a lawful way."Silverthorne LumberCo. v. United States,251 U. S. 385,251 U. S. 392.Nor does the fact that the goods seized are contraband make validan otherwise unlawful search and seizure.Agnello v. UnitedStates,269 U. S. 20.Indeed it was for contraband goods that search warrants, carefullyhedged about, were first authorized by Congress.

The only exceptions to the safeguard of a warrant issued by amagistrate are those which the common law recognized as inherentlimitations of the policy which found expression in the FourthAmendment -- where circumstances preclude the obtaining of awarrant (as in the case of movable vehicles), and where the warrantfor the arrest of a person carries with it authority to seize allthat is on the person, or is in such open and immediate physicalrelation to him as to be, in a fair sense, a projection of hisperson. That is the teaching of both theGo-Bart and theLefkowitz cases, which effectually retract whatever mayhave been the loose consideration of the problem inMarron v.United States,275 U. S. 192.Thus, theGo-Bart case emphasized that the things seizedin theMarron case were "visible and accessible and in theoffender's immediate custody."282 U. S. 282 U.S.344,282 U. S. 358.By "immediate custody" was not meant that figurative possessionwhich for some legal purposes puts one in "possession" ofeverything in a house. The sentence following that just quotedexcludes precisely the kind of thing that was done here. "There wasno threat of force or general search or rummaging of the place."Ibid.

In our case, five agents came to arrest Harris on a charge ofviolating the Postal Laws and the National Stolen Property Act.Though the arrest was consummated in

Page 331 U. S. 169

the living room, the agents were told to make "a thoroughsearch" of the entire apartment. In the bedroom, they lifted thecarpets, stripped the bed-linen, turned over the mattress. Theycombed the contents of the linen closet and even looked intoHarris' shoes. The Selective Service cards, the items whose seizureis here in controversy, were discovered only after agents tore opena sealed envelope labeled "personal papers" which they had foundunder some clothes in a drawer of a small bureau in the bedroom. Ifthere was no "rummaging of the place" in this case, it would bedifficult to imagine what "rummaging of the place" means.

Again, in theLefkowitz case, theMarron casewas carefully defined and limited:

"There, prohibition officers lawfully on the premises searchingfor liquor described in a search warrant, arrested the bartenderfor crime openly being committed in their presence. He wasmaintaining a nuisance in violation of the act. The offenseinvolved the element of continuity, the purchase of liquor fromtime to time, its sale as a regular thing for consumption upon thepremises, and other transactions including the keeping of accounts.The ledger and bills, being in plain view, were picked up by theofficers as an incident of the arrest. No search for them wasmade."

285 U.S. at285 U. S.465.

Surely no comparable situation is now here. There was no searchwarrant, no crime was "openly being committed" in the presence ofthe officers, the seized documents were not "in plain view" or"picked up by the officers as an incident of the arrest." Here, a"thorough search" was made, and made without warrant.

To say that theGo-Bart and theLefkowitzcases -- both of them unanimous decisions of the Court -- areauthority for the conduct of the arresting agents in this case isto find that situations decisively different are the same.

Page 331 U. S. 170

It greatly underrates the quality of the American people and ofthe civilized standards to which they can be summoned to suggestthat we must conduct our criminal justice on a lower level thandoes England, and that our police must be given a head whichBritish courts deny theirs. A striking and characteristic exampleof the solicitous care of English courts concerning the "liberty ofthe subject" may be found in the recent judgments inChristiev. Leachinsky. In that case, the House of Lords unanimouslyruled that if a policeman arrests without warrant, althoughentertaining a reasonable suspicion of felony which would justifyarrest, but does not inform the person of the nature of the charge,the police are liable for false imprisonment for such arrest. Thesejudgments bear mightily upon the central problem of this case --namely, the appropriate balancing, in the words of Lord Simonds, of"the liberty of the subject and the convenience of the police."Christie v. Leachinsky, [1947] 1 All E.R. 567, 576.[Footnote 2/7]

Page 331 U. S. 171

The English attitude was clearly evinced also in the famousSavidge case. "Both the original incident and its sequelillustrate the sensitiveness of English opinion to even asuggestion of oppression by the police." IV Reports of the NationalCommission on Law Observance and Enforcement ("Lawlessness in LawEnforcement") p. 261. For "the high standards of conduct exacted byEnglishmen of the police" (id. at 259),see thedebates in the House of Commons, 217 Hans.Deb. (Commons), cols.1303et seq. (May 17, 1928), and 220id., cols.35 and 805et seq. (July 20, 1928), and the Report of theTribunal of Inquiry on theSavidge case, Cmd. 3147, 1928.There are those who say that we cannot have such high standards ofcriminal justice, because the general standards of English lifeensure greater obedience to law and better law enforcement. Ireject this notion, and not the least because I think it is moreaccurate to say that the administration of criminal justice is moreeffective in England because law enforcement is there pursued on amore civilized level.

Of course, this may mean that it might be more difficult toobtain evidence of an offense unexpectedly uncovered in a lawlesssearch. It may even mean that some offenses may go unwhipped of thelaw. If so, that is part of the cost for the greater gains of theFourth Amendment. The whole point about the Fourth Amendment isthat "[i]ts protection extends to offenders, as well as to the lawabiding," because of its important bearing in maintaining a freesociety and avoiding the dangers of a police state.UnitedStates v. Lefkowitz, supra, at285 U. S. 464.But the impediments of the Fourth Amendment to effective lawenforcement are grossly exaggerated. Disregard of proceduresimposed upon the police by the Constitution and the laws is toooften justified on the score of necessity. This case is a goodillustration how lame an excuse it is that con

Page 331 U. S. 172

duct such as is now before us is required by the exigencies oflaw enforcement. Here, there was ample opportunity to secure theauthority of law to make the search and later authority from amagistrate to seize the articles uncovered in the course of thesearch.Taylor v. United States,286 U. S.1,286 U. S. 6;United States v. Kaplan, 89 F.2d 869, 871. The hindrancesthat are conjured up are counsels of despair which disregard theexperience of effective law enforcement in jurisdictions where thepolice are held to strict accountability and are forbidden conductlike that here disclosed.

Stooping to questionable methods neither enhances that respectfor law which is the most potent element in law enforcement nor, inthe long run, do such methods promote successful prosecution. Inthis country, police testimony is often rejected by juriesprecisely because of a widely entertained belief that illegalmethods are used to secure testimony. Thus, dubious police methodsdefeat the very ends of justice by which such methods arejustified. No such cloud rests on police testimony in England.Respect for law by law officers promotes respect generally, just aslawlessness by law officers sets a contagious and competitiveexample to others.See IV Reports of the NationalCommission on Law Enforcement and Observance ("Lawlessness in LawEnforcement")passim, especially pp. 190-192. Moreover, bycompelling police officers to abstain from improper methods forsecuring evidence, pressure is exerted upon them to bring theresources of intelligence and imagination into play in thedetection and prosecution of crime.

No doubt the Fourth Amendment limits the freedom of the policein bringing criminals to justice. But to allow them the freedomwhich the Fourth Amendment was designed to curb was deemed toocostly by the Founders. As Mr. Justice Holmes said in theOlmstead case, "we must consider the two objects ofdesire,

Page 331 U. S. 173

both of which we cannot have, and make up our minds which tochoose." 277 U.S. at277 U. S. 470.Of course, arresting officers generally feel irked by what, tothem, are technical legal restrictions. But they must not beallowed to be unmindful of the fact that such restrictions areessential safeguards of a free people. To sanction conduct such asthis case reveals is to encourage police intrusions upon privacy,without legal warrant, in situations that go even beyond the factsof the present case. If it be said that an attempt to extend thepresent case may be curbed in subsequent litigation, it isimportant to remember that police conduct is not often subjected tojudicial scrutiny. Day by day, mischief may be done and precedentsbuilt up in practice long before the judiciary has an opportunityto intervene. It is for this reason -- the dangerous tendency ofallowing encroachments on the rights of privacy -- that this Courtin theBoyd case gave to the Fourth Amendment its wideprotective scope.

It is vital, no doubt, that criminals should be detected, andthat all relevant evidence should be secured and used. On the otherhand, it cannot be said too often that what is involved fartranscends the fate of some sordid offender. Nothing less isinvolved that that which makes for an atmosphere of freedom asagainst a feeling of fear and repression for society as a whole.The dangers are not fanciful. We too readily forget them.Recollection may be refreshed as to the happenings after the firstWorld War by the "Report upon the Illegal Practices of the UnitedStates Department of Justice", which aroused the public concern ofChief Justice Hughes [Footnote 2/8](then at the bar), and by the little book entitled "TheDeportations Delirium

Page 331 U. S. 174

of Nineteen-Twenty" by Louis F. Post, who spoke with theauthoritative knowledge of an Assistant Secretary of Labor.

More than twenty years ago, before democracy was subjected toits recent stress and strain, Judge Learned Hand, in a decisionapproved by this Court in theLefkowitz case, expressedviews that seem to me decisive of this case:

"After arresting a man in his house, to rummage at will amonghis papers in search of whatever will convict him appears to us tobe indistinguishable from what might be done under a generalwarrant; indeed, the warrant would give more protection, forpresumably it must be issued by a magistrate. True, by hypothesis,the power would not exist if the supposed offender were not foundon the premises; but it is small consolation to know that one'spapers are safe only so long as one is not at home. Suchconstitutional limitations arise from grievances, real or fancied,which their makers have suffered, and should gopari passuwith the supposed evil. They withstand the winds of logic by thedepth and toughness of their roots in the past. Nor should weforget that what seems fair enough against a squalid huckster ofbad liquor may take on a very different face if used by agovernment determined to suppress political opposition under theguise of sedition."

United States v. Kirschenblatt, 16 F.2d 202, 203

[Footnote 2/1]

"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."

[Footnote 2/2]

While this case presents a situation not involved in theDavis case, or inZap v. United States,328 U. S. 624, sothat the Court's conclusion cannot rest on those cases, it isappropriate to note that neither of those cases carries theauthority of a majority of the Court. Aside from the fact that aconstitutional adjudication of recent vintage and by a dividedCourt may always be reconsidered, I am loath to believe that thesedecisions by less than a majority of the Court are the last word onissues of such far-reaching importance to constitutionalliberties.

[Footnote 2/3]

For reports of Otis' famous argument,see 2 Adams,Works pp. 523-525; Tudor, Life of James Otis, c. VI; Quincy'sMassachusetts Reports p. 471et seq. (see alsopp. 51-55); American History Leaflets, No. 33.And see thetribute of John Adams to Otis, Samuel Adams, and Hancock in 8 OldSouth Leaflets p. 57 (No. 179).

"The seizure of the papers of Algernon Sidney, which were madeuse of as the means of convicting him of treason, and of those ofWilkes about the time that the controversy between Great Britainand the American Colonies was assuming threatening proportions, wasprobably the immediate occasion for this constitutional provision.See Leach v. Money, Burr, 1742; S.C., 1 W.Bl. 555, 19State Trials, 1001, and Broom, Const. Law, 525;Entick v.Carrington, 2 Wils. 275; S.C., 19 State Trials, 1030, andBroom, Const. Law, 558; May, Const.Hist., ch. 10;Trial ofAlgernon Sidney, 9 State Trials, 817."

Cooley, Principles of Constitutional Law, 1st Ed., 212, n.2.

[Footnote 2/4]

Compare the answers to certified questions given bythis Court inGouled v. United States,255 U.S. 298,with the forecast made by a student ofthe subject, of known partiality in favor of civil liberties.Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361,385-387. As pointed out by Professor Zechariah Chafee, Jr., in eachinstance where theGouled case differs from Mr. Fraenkel'sforecast, "the Court gave increased force to the constitutionalguarantee." Chafee, The Progress of the Law 1919-1922, 35Harv.L.Rev. 673, 699.

[Footnote 2/5]

It is not without interest to note the first appearance ofprovisions dealing with search and seizure in State constitutions:Alabama: art. I, § 9 (1819); Arizona: art. II, § 8 (1910);Arkansas: art. II, § 9 (1836); California: art. I, § 19 (1849);Colorado: art. II, § 7 (1876); Connecticut: art. I, § 8 (1818);Delaware: art. I, § 6 (1792); Florida: art. I, § 7 (1838); Georgia:art. I, § 18 (1865); Idaho: art. I, § 17 (1889); Illinois: art.VIII, § 7 (1818); Indiana: art. I, § 8 (1816); Iowa: art. I, § 8(1846); Kansas: art. I, § 14 (1855); Kentucky: art. XII, § 9(1972); Louisiana: Title VII, Art. 108 (1864); Maine: art. I, § 5(1819); Maryland: Decl. of Rights, par. XXIII (1776);Massachusetts: Part I, Art. XIV (1780); Michigan: art. I, § 8(1835); Minnesota: art. I, § 10 (1857); Mississippi: art. I, § 9(1817); Missouri: art. XIII, § 13 (1820); Montana: art. III, § 7(1889); Nebraska: art. I, § 7 (1875); Nevada: art. I, § 18 (1864);New Hampshire: Part I, art. XIX (1784); New Jersey: art. I, § 6(1844); New Mexico: art. II, § 10 (1910); North Carolina: Decl. ofRights, par. XI (1776); North Dakota: art. I, § 18 (1889); Ohio:art. VIII, § 5 (1802); Oklahoma: art. II § 30 (1907); Oregon: art.I, § 9 (1857); Pennsylvania: Decl. of Rights, par. X (1776); RhodeIsland: art. I, § 6 (1842); South Carolina: art. I, § 22 (1868);South Dakota: art. VI, § 11 (1889); Tennessee: art. XI, § 7 (1796);Texas: Decl. of Rights, par. 5 (1836), art. I, § 7 (1845); Utah:art. I, § 14 (1895); Vermont: chapter I, par. XI (1777); Virginia:Bill of Rights, § 10 (1776); Washington: art. I, § 7 (1889); WestVirginia: art. II, § 3 (1861-63); Wisconsin: art. I, § 11 (1848);Wyoming: art. I, § 4 (1889).

[Footnote 2/6]

"The requirement that warrants shall particularly describe thethings to be seized makes general searches under them impossible,and prevents the seizure of one thing under a warrant describinganother. As to what is to be taken, nothing is left to thediscretion of the officer executing the warrant."

[Footnote 2/7]

The extent to which such subordination of the police to lawfinds support in informed English opinion is reflected by thecomments of the Solicitors' Journal. After nothing that, in theview of Lord Simon,

"Any other general rule would be contrary to our conception ofindividual liberty, though it might be tolerated in the time of theLettres de Cachet in the eighteenth century in France orunder the Gestapo,"

the Journal observes:

"The importance of the reaffirmation of this principle cannot beexaggerated. The powers of private persons to arrest where a felonyhas been committed and there is reasonable ground for thinking thatthe person detained has committed it are important now that crimesof violence are more numerous, and the statutory powers of arrestwithout warrant under,e.g., the Malicious Damage Act,1861, the Larceny Act, 1916, the Curtis Act of 1876, and many otherActs are more used than is generally appreciated. Of no lessimportance in such times as these is the assertion of ourindividual liberties to counteract any tendency which may appearfor police powers to be exceeded."

91 Solicitors' Journal 184-185 (April 12, 1947).

[Footnote 2/8]

Address, Harvard Law School Centennial, June 21, 1920,SomeObservations on Legal Education and Democratic Progress, p.23:

"We cannot afford to ignore the indications that, perhaps to anextent unparalleled in our history, the essentials of liberty arebeing disregarded. Very recently, information has been laid byresponsible citizens at the bar of public opinion of violations ofpersonal rights which savor of the worst practices of tyranny."

For a contemporaneous judicial account of searches and seizuresin violation of the Fourth Amendment in connection with theCommunist raids of January 2, 1920,see Judge George W.Anderson's opinion inColyer v. Skeffington, 265 F.17.

|331U.S. 145app|

Page 331 U. S. 175

APPENDIX

Analysis of Decisions Involving Searches andSeizures,

fromWeeks v. United States,232 U.S. 383*

bwm:

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

7. Articles seized incident

1. Name of case 2. Charge on arrest 3. Authority for arrest 4.Articles seized 5. Articles seized under 6. Articles seizedincident to authorized search 8. Decision

warrant to lawful arrest for other articles

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Weeks v. United States, Use of mails to distribute Arrestedwithout a warrant Personal papers and lottery None. None. None.District court had improperly

232 U. S. 383(1914). lottery tickets. and not during commis- tickets taken fromdefend- admitted in evidence some of

sion of crime. ant's home. articles seized; conviction

reversed.

Schenck v. United States, Conspiracy to violate Es- IndictmentLeaflets counseling draft Leaflets counseling draft do. do.Evidence properly admitted by

249 U. S. 47(1919). pionage Act of 1917 evasion. evasion. Warrant was di- trialcourt for use against

rected to search of Social- defendant.

ist headquarters from which

leaflets were mailed by

defendant.

Silverthorne Lumber Co. Contempt of court for fail- No arrest.Books and papers seized under None. do. do. Order directingproduction of

v. United States, 251 ure to produce books and color of invalidsubpoena. evidence, which was based

U.S. 385 (1920). documents required by on knowledge secured invio-

subpoena. (One of defend- lation of Fourth Amendment,

ants was a corporation.) was error, and conviction

Order was based on evi- for failure to obey order

dence secured as indi- reversed. (White, C.J., and

cated in columns 3-7. Pitney, J., dissenting.)

Gouled v. United States, Conspiracy and use of Indictment. Fourdocuments taken from Three of the papers. (The do. do. Oncertification, held that

255 U. S. 298(1921). mails to defraud defendant's office. other was taken bystealth papers were inadmissible.

United States. from the office by a gov- Search warrant mayissue

ernment agent.) only when interest of public

or complainant in the art-

icle is primary, or when its

possession is unlawful; it

may not issue merely to se-

cure evidence.

Amos v. United States, Removal of whiskey without do. Whiskey inquestion, as re- None. do. do. Evidence improperly admitted;

255 U. S. 313(1921). payment of tax; sale of sult of search without a convictionreversed.

whiskey on which no tax warrant in defendant's ab-

had been paid. sence. (Officers admitted

by defendant's wife.)

Burdeau v. McDowell, Civil suit for return of No arrest.Plaintiff's books and papers do. do. do. District court had heldthat

256 U. S. 465(1921) property in hands of had been stolen from plain- retentionof paper for use

Assistant to Attorney tiff's possession by a as evidence was inviolation

General. party unrelated to the Fed- of Fourth and FifthAmend-

eral Government. ments; this Court reversed.

(Brandeis and Holmes, JJ.,

dissenting.)

Page 331 U. S. 177

Essgee Co. v. United Violation of import laws. Warrants.Corporate papers and books. Corporate papers and books None. None.District court admitted evi-

States,262 U. S. 151(Corporate and indivi- produced under subpoena. dence against bothcorpor-

(1923) dual defendants; only ate and individual defend-

latter, of course, were ants. This Court affirmed.

arrested.)

Carroll v. United States, Transportation of alco- Arrestedduring commis- Alcoholic beverages. None. Whiskey uncovered duringdo. Evidence was properly ad-

267 U. S. 132(1925). holic beverages. sion of crime. search of car in whichmitted; conviction affirmed.

it was being transported (McReynolds and Sutherland,

at time of arrest. JJ., dissenting.)

Steele v. United States, 1. Action for return of 1. No arrest.1. Liquor. 1. Liquor. (Warrant was di- 1. None. 1. None. 1.Evidence properly secured

267 U. S. 498, 505seized liquor. rected to address not and need not be returned.

(1925) (two cases). specifically stated to

be that of building

searched.)

2. Possession of liquor in 2. Information. 2. Liquor. 2. Liquor.(Warrant was di- 2. None. 2. None. 2. Evidence properly secured

violation of Prohibi- rected to prohibition and properlyadmitted by

tion Act. officer. Question of district court; judgment

reasonable cause for affirmed.

its issuance was not

left to jury.) Alco-

holic wines.

Dumbra v. United States, Motion to quash search No arrest.Alcoholic wines. Alcoholic wines. None. None. Warrant properlyissued on

268 U. S. 435(1925) warrant. reasonable ground; refusal

of district court to quash

search warrant affirmed.

Agnello v. United States Possession and sale of co- Arrestedduring commis- Can of cocaine seized at None. do. do. Evidenceimproperly admitted;

269 U. S. 20(1925). caine without registra- sion of crime. home of one ofdefendants conviction, affirmed by the

tion or payment of tax. while he was being arrest- C.C.A., herereversed.

ed several blocks away.

Byars v. United States, Possession of counterfeit Indictment.Counterfeit alcoholic bever- No Federal warrant issued. do.Counterfeit alcoholic beverage Conviction in district court,

273 U. S. 28(1927). alcoholic beverage stamps. age stamps. But warrant wasissued by stamps. (See column 5.) affirmed in the C.C.A., here

state judge to state offi- reversed because evidence

cers to search for liquor. was improperly admitted.

Federal officer accompanied

them on search and uncover-

ed stamps.

McGuire v. United States, Possession of intoxicatingInformation. Intoxicating liquor. Intoxicating liquor. (Most do.None. On certificate from C.C.A.

liquor. of liquor thus seized was after conviction, heldthat

immediately destroyed, evidence was properly ad-

with only samples retained mitted. Butler, J., con-

for evidence.) curring in result.

United States v. Lee, 274 Conspiracy to violate Arrested whileengaging 71 cases of grain alcohol. None. 71 cases of grainalcohol. do. Defendant's conviction, re-

U.S. 559 (1927). Prohibition Act. in crime. Cases were seized onAmer- versed by the C.C.A. on

ican vessel more than 12 grounds of illegal search,

miles from shore. sustained by this Court.

Page 331 U. S. 179

Segurola v. United States, Transportation of intoxi- Arrestedduring commis- Intoxicating liquor. None. The liquor. None.Conviction, affirmed by

275 U. S. 106(1927) cating liquor. sion of crime. C.C.A., affirmed by this

Court.

United States v. Berke- Civil suit to abate nui- No arrest.Liquor. Liquor. Warrant was invalid None. do. District courtjudgment ex-

ness,275 U. S. 149sance. for failure of allegation cluding evidence, affirmed

(1927). of sale on the premises as by C.C.A., affirmed bythis

basis for its issue. Court.

Marron v. United States, Violation of Prohibition Indictment.(Crime com- Intoxicating liquor, ledger, The intoxicating liquor.Ledger and bills. Court held See explanation in 282 U.S. atEvidence properly admitted;

275 U. S. 192(1927) Act. mitted in presence of and papers. (Ledger was that,while seizure was not 358, that the articles conviction sustainedby

arresting officers. Ar- in closet in back of bar authorized bythe warrant, "were visible and accessi- C.C.A. affirmed here.

ticles seized, as de- which contained some of ledger and billswere pro- ble," and that there was

scribed in columns 4-7, the liquor; papers (bills) perly seizedas within the no "rummaging of the place."

were taken at time of were on table near cash "immediatepossession and And see 285 U.S. at 465.

arrest.) register.) control" of offender.

Gambino v. United States, Transportation of intoxi- Crimecommitted in presence Intoxicating liquor. None. Liquor seized asresult of None. Evidence improperly admitted;

274 U. S. 310(1927). cating liquor. of arresting officers search of car in whichconviction, affirmed by

(state police). defendants were when C.C.A., reversed here.

arrested. But Court found

no probable cause for arrest.

Go-Bart Co. v. United Possession, transportation, Invalidwarrant. Office papers and records se- do. None. (See column 3.)do. Evidence must be returned to

States,282 U. S. 344sale, etc., of intoxicat- cured by use of keys taken defendants;judgments of

(1931). ing liquor. from defendants at time of district courtsand the

their arrest, and on false C.C.A. reversed.

statement that they had a

warrant for the papers.

Husty v. United States, Possession and transporta- Arrestedduring commis- Intoxicating liquor. do. Intoxicating liquoruncovered do. Movable vehicle authorizes

282 U. S. 694(1931). tion of intoxicating sion of crime. during search ofautomobile search on probable cause.

liquor. reasonably believed to con- Evidence properlyadmitted.

tain such contraband.

United States v. Lefko- Conspiracy to violate Pro- Warrant ofU.S. Commis- Variety of papers taken from do. None. (Papers inwastebasket do. District court denied motions

witz,285 U. S. 452hibition Act, including sioner. desks, cabinets, and waste- were,of course, in open view. for return of papers; C.C.A.

(1932). use of premises for sale basket. Among these papersreversed, and this Court

and solicitation of were lists of names and affirmed judgment ofC.C.A.

orders. addresses, stationery, bills

directed to customers, letters

of solicitation, etc.

Page 331 U. S. 181

Taylor v. United States Illegal possession of in- Arrest made onbasis of 122 cases of liquor. Agents None. None. None. Evidence ofseized liquor im-

286 U. S. 1 (1932).toxicating liquor. evidence uncovered investigated and noticedproperly admitted; convic-

during search. odor of alcohol coming from tion and C.C.A.affirmance

garage. Defendant had reversed.

been under suspicion.

Agents broke into garage

and uncovered cache of

liquor. Defendant was ar-

rested when he came to

garage during search.

Grau v. United States, Unlawful manufacture and Indictment.Still, its appurtenances, and Still, its appurtenances, do. do.Evidence of seized goods im-

287 U. S. 124(1932). possession of liquor. 350 gallons of whiskey. and 350gallons of whiskey. properly admitted; convic-

But warrant issued on mere tion in trial court and af-

allegations that defendant firmance of C.C.A. reversed.

had been seen hauling cans (Stone and Cardozo, JJ.,

often used for liquor, and dissenting.)

bringing cane sugar onto

premises; that full cans

were removed from premises;

and that odors of fumes of

cooking mash were noticeable.

There was no allegation of

any sale on premises.

Sgro v. United States, Possession and sale of in- Information.Intoxicating liquor. Intoxicating liquor. But do. do. Evidence ofseized liquor im-

287 U. S. 206(1932). toxicating liquor. warrant was invalid. When properlyadmitted; convic-

first issued, it was not tion and its affirmance by

executed within 10 days; re- C.C.A. reversed. (McRey-

issued without new evidence nolds, J., concurring in

or affidavits. special opinion; Stone and

Cardozo, JJ., dissenting.)

Nathanson v. United Importation of liquor with- Information,filed after do. Intoxicating liquor. But do. do. Evidence of seizedliquor im-

States,290 U. S. 41 outpayment of import seizure. warrant issued by state properlyadmitted; convic-

(1933). duties. judge at request of customs tion and affirmanceby

agent on mere allegation C.C.A. reversed.

of belief by customs agent

that defendant had violated

the law.

Scher v. United States, Possession and transporta- Arrest duringcommission Distilled alcohol on which None. Liquor seized duringsearch do. Evidence properly admitted;

305 U. S. 251(1938). tion of distilled alco- of crime. tax had not been paid. ofcar which officers had conviction and judgment of

hol on which tax had not followed into garage adjoin- C.C.A.affirmed

been paid. ing defendant's house.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

ewm:

* For cases related but not immediately pertinent,seeOlmstead v. United States,277 U. S. 438;Goldman v. United States,316 U.S. 129;United States v. White,322 U.S. 694;Oklahoma Press Publishing Co. v.Walling,327 U. S. 186.

Fnx

Page 331 U. S. 183

Mr. Justice MURPHY, dissenting.

The Court today has resurrected and approved, in effect, the useof the odious general warrant or writ of assistance, presumablyoutlawed forever from our society by the Fourth Amendment. Awarrant of arrest, without more, is now sufficient to justify anunlimited search of a man's home from cellar to garret for evidenceof any crime, provided only that he is arrested in his home.Probable cause for the search need not be shown; an oath oraffirmation is unnecessary; no description of the place to besearched or the things to be seized need be given; and themagistrate's judgment that these requirements have been satisfiedis now dispensed with. In short, all the restrictions put upon theissuance and execution of search warrants by the Fourth Amendmentare now dead letters as to those who are arrested in theirhomes.

That this decision converts a warrant for arrest into a generalsearch warrant lacking all the constitutional safeguards isdemonstrated most plainly by the facts. Two valid warrants wereissued for the arrest of petitioner and one C. R. Moffett. Thefirst warrant charged them with a violation of the mail fraudstatute, § 215 of the Criminal Code; it was alleged that they senta letter through the mails in connection with the execution of ascheme to defraud by negotiating and cashing a forged check drawnon the Mudge Oil Co. in the sum of $25,000. The second warrantcharged that they caused the same check to be transported ininterstate commerce in violation of § 3 of the National StolenProperty Act.

Two agents of the Federal Bureau of Investigation went topetitioner's apartment, armed with these warrants for arrest.Petitioner was placed under arrest in the living room of hisapartment and was safely handcuffed. The agents, together withthree others who had arrived in the meantime, then began asystematic ransacking of the

Page 331 U. S. 184

apartment. Operating without the benefit of a search warrant,they made a search which they admitted was "as thorough as we couldmake it." For five hours, they literally tore the place apart fromtop to bottom, going through all of petitioner's clothes andpersonal belongings, looking underneath the carpets, turning thebed upside down, searching through all the bed linen, opening allthe chest and bureau drawers, and examining all personal papers andeffects. Nothing was left untouched or unopened.

The agents testified that they were searching for "two $10,000cancelled checks of the Mudge Oil Company which our investigationestablished had been stolen from the offices of the Mudge OilCompany" and which might have been used in connection with forgingthe $25,000 check in issue. It was also admitted that they weresearching "for any means that might have been used to commit thesetwo crimes (charged in the warrants for arrest), such as burglartools, pens, or anything that could be used in a confidence game ofthis type"; "we thought we might find a photostatic copy (of the$25,000 check)"; "anything which would indicate a violation of themail fraud statute and the National Stolen Property Act"; "anythingyou could find in connection with the violation of the law forwhich he [petitioner] was then arrested." One of them also admittedthat they were

"searching for goods, wares, merchandise, articles, or anythingin connection with the use of the mails to defraud, and also inconnection with the violation of Section 415 of Title 18."

Suffice it to say that they found no checks. The agents admittedseizing seven pens, tissue paper and twenty-seven pieces ofcelluloid, the latter being found wrapped in a towel in a drawer ofthe bedroom dresser. Petitioner charges, and it is undenied, thatthe agents also seized blank stationery of various hotels, blankruled sheets of paper, several obsolete fountain pens, expensebills and

Page 331 U. S. 185

receipts, personal letters, a bill of sale for petitioner'sautomobile, note books, address books and some mineral deeds.

Most significant of all, however, was the unexpected discoveryand seizure, at the end of this long search, of a sealed envelopemarked "George Harris, personal papers." This envelope, which wasfound in a dresser drawer beneath some clothes, contained elevendraft registration certificates and eight notices of draftclassification. Petitioner was then charged with the unlawfulpossession, concealment and alteration of these certificates andnotices, and found guilty. Nothing has ever developed as to theforged $25,000 check, which was the basis of petitioner's originalarrest. No evidence of the crimes charged in the warrants forarrest has been found; no prosecution of petitioner for thosecrimes has developed.

It is significant that the crime which was thus unexpectedlydiscovered -- namely, the illegal possession of the draftcertificates and notices -- could not have been brought to light inthis case through the use of ordinary constitutional processes.There was noprima facie evidence to support the issuanceof a warrant for petitioner's arrest for the crime of possessingthese items. Nor was there any probable cause or any basis for anoath or affirmation which could justify a valid search warrant forthese items. Their presence in petitioner's apartment could bediscovered only by making an unlimited search for anything andeverything that might be found, a search of the type thatcharacterizes a general search warrant or writ of assistance. Andit was precisely that type of search that took place in thiscase.

The Court holds, however, that the search was justified as anincident to petitioner's lawful arrest on the mail fraud and stolenproperty charges. It is said that law enforcement officers have theright, when making a valid arrest, to search the place and to seizethe fruits and instrumentalities

Page 331 U. S. 186

of the crime for which the arrest was made. And since the searchhere was made, at least in part, to find the instrumentalities ofthe alleged crimes, the search was valid and petitioner cannot beheard to complain of what was found during the course of thatsearch. This conclusion bears further analysis, however.

It is undoubtedly true that limited seizures may be made withoutthe benefit of search warrants under certain circumstances where aperson has been arrested in his home. Due accommodation must bemade for the necessary processes of law enforcement. Seizure may bemade of articles and papers on the person of the one arrested. Andthe arresting officer is free to look around and seize those fruitsand evidences of crime which are in plain sight and in hisimmediate and discernible presence.Weeks v. UnitedStates,232 U. S. 383,232 U. S. 392;Agnello v. United States,269 U. S.20,269 U. S. 30.But where no properly limited search warrant has been issued, thisCourt has been scrupulously insistent on confining very narrowlythe scope of search and seizure. The mere fact that a man has beenvalidly arrested does not give the arresting officers untrammeledfreedom to search every cranny and nook for anything that mighthave some relation to the alleged crime or, indeed, to any crimewhatsoever. Authority to arrest, in other words, gives no authoritywhatever to search the premises where the arrest occurs, and noauthority to seize except under the most restrictedcircumstances.

Illustrative of the strict limitations which this Court hasplaced upon searches and seizures without a warrant in connectionwith a lawful arrest are the three cases ofMarron v. UnitedStates,275 U. S. 192;Go-Bart Importing Co. v. United States,282 U.S. 344, andUnited States v. Lefkowitz,285 U. S. 452. IntheMarron case, an individual was arrested while actuallyengaged in running an illegal saloon in pursuance of a conspiracy;a prohibition agent secured a warrant for a search of the premisesand for the

Page 331 U. S. 187

seizure of intoxicating liquors and articles for theirmanufacture. Liquor was found in a closet. While searching in thecloset, the agents noticed a ledger showing inventories of liquorand receipts relating to the business. Alongside the cash register,they found bills for utilities furnished to the premises. They tookthe ledger and the bills. This Court held that, while the seizureof the ledger and bills could not be justified under the searchwarrant, because not mentioned therein, their seizure was proper asan incident to the arrest inasmuch as they were necessary to thecarrying on of the illegal business.

TheMarron case at first was widely misunderstood ashaving held that most of the restrictions had been removed onsearches of premises incident to arrests.United States v.Gowen, 40 F.2d 593;United States v. Poller, 43 F.2d911. This misunderstanding was removed by theGo-Bartcase, which made it clear that the items seized in theMarron case were visible and accessible and in theoffender's immediate custody; it was further pointed out that therewas no threat of force or general search or rummaging of the placein theMarron case. The inherent limitations of theMarron holding were demonstrated by the facts and decisionin theGo-Bart case. There, the defendant Bartels wasplaced under lawful arrest in his office on a charge of conspiracyto sell intoxicating liquors. Gowen, the other defendant, arrived,and he also was placed under lawful arrest. Gowen was then forcedto open a desk and a safe, which were searched by the agents alongwith other parts of the office. A large quantity of papersbelonging to the defendants was seized. This Court held that such aseizure was unconstitutional, the search being general andunlimited in scope and being undertaken in the hope that evidenceof the crime might be found.

In theLefkowitz case, the defendants were placed underlawful arrest in their office on a charge of conspiracy to violatethe liquor laws. The arresting officers then proceeded

Page 331 U. S. 188

to search the desks, the towel cabinet and the waste baskets,seizing various books, papers and other articles. All of this wasdone without a search warrant. Once again, the Court held that theConstitution had been violated. It was pointed out that thesearches were exploratory and general, and made solely to findevidence of the defendant's guilt of the alleged conspiracy or someother crime; the papers and other articles seized were unoffendingin themselves.

Tested in the light of the foregoing principles and decisions,the search in the instant case cannot be justified. Even moreglaring than the searches in theGo-Bart andLefkowitz cases, the search here was a general exploratoryone undertaken in the hope that evidence of some crime might beuncovered. The agents were searching for more than the fruits andinstrumentalities of the crimes for which the arrest was made. Bytheir own repeated testimony, they were searching for "anything" inconnection with the alleged crimes, for "anything" that wouldindicate a violation of the laws in question. And their seizure ofthe draft certificates and notices demonstrates that they were alsoon the lookout for evidence of any other crime. In the absence of avalid warrant, such an unlimited, ransacking search for "anything"that might turn up has been condemned by this Court inconstitutional terms time and time again. Nothing in any of theprevious decisions of this Court even remotely approves orjustifies this type of search as an incident to a valid arrest; inthis respect, today's decision flatly contradicts and, in effect,overrules theGo-Bart andLefkowitz cases.

Moreover, even if we assume that the agents were merely lookingfor the fruits and instrumentalities of the crimes for which thearrest was made, the Constitution has been violated. There areoften minute objects connected with the commission of a crime,objects that can

Page 331 U. S. 189

be hidden in a small recess of a home or apartment and that canbe discovered only by a thorough, ransacking search. Where thediscovery of such objects requires an invasion of privacy to theextent evident in this case, the dangers inherent in such aninvasion without a warrant far outweigh any policy underlying thismethod of crime detection. A search of that scope inevitablybecomes, as it has in this case, a general exploratory search for"anything" in connection with the alleged crime or any other crime-- a type of search which is most roundly condemned by theConstitution.

Thus, when a search of this nature degenerates into a generalexploratory crusade, probing for anything and everything that mightevidence the commission of a crime, the Constitution steps into thepicture to protect the individual. If it becomes evident thatnothing can be found without a meticulous uprooting of a man'shome, it is time for the law enforcement officers to secure awarrant. And if such a search has any reasonableness at all, it isa reasonableness that must be determined through the informed anddeliberate judgment of a magistrate.

"Security against unlawful searches is more likely to beattained by resort to search warrants than by reliance upon thecaution and sagacity of petty officers while acting under theexcitement that attends the capture of persons accused ofcrime."

United States v. Lefkowitz, supra, at285 U. S.464.

To insist upon a search warrant in the circumstances of thiscase is not to hobble the law enforcement process. Here, there wasno necessity for haste, no likelihood that the contents of theapartment might be removed or destroyed before a valid searchwarrant could be obtained. Indeed, the agents did get a warrant tosearch petitioner's office and automobile. It would have been noundue burden on them to obtain a warrant to search theapartment,

Page 331 U. S. 190

guarding it in the meantime. Certainly the Constitution is notdependent upon the whim or convenience of law enforcement officers.Search should not be made without a warrant, in other words, wherethe opportunity for the issuance of a warrant exists.Carrollv. United States,267 U. S. 132,267 U. S. 156;Taylor v. United States,286 U. S. 1,286 U. S. 6.

The decision of the Court in this case can have but one meaningso far as searches are concerned. It effectively takes away theprotection of the Fourth Amendment against unreasonable searchesfrom those who are placed under lawful arrest in their homes.Small, minute objects are used in connection with most if not allcrimes, and there is always the possibility that some fruit of thecrime or some item used in the commission of the offense may takethe form of a small piece of paper. Using the subterfuge ofsearching for such fruits and instrumentalities of the crime, lawenforcement officers are now free to engage in an unlimited plunderof the home. Some of them may be frank enough, as in this case, toadmit openly that the object of their search is "anything" thatmight connect the accused with the alleged crime. Others may bemore guarded in their admissions. But all will realize that it isnow far better for them to forego securing a search warrant, whichis limited in scope by the Fourth Amendment to those articles setforth with particularity in the warrant. Under today's decision, awarrant of arrest for a particular crime authorizes an unlimitedsearch of one's home from cellar to attic for evidence of"anything" that might come to light, whether bearing on the crimecharged or any other crime. A search warrant is not onlyunnecessary; it is a hindrance.

The holding that the search in this case was proper andreasonable thus expands the narrow limitations on searches incidentto valid arrests beyond all recognition.

Page 331 U. S. 191

What has heretofore been a carefully circumscribed exception tothe prohibition against searches without warrants has now beeninflated into a comprehensive principle of freedom from all therequirements of the Fourth Amendment. The result is that a warrantfor arrest is the equivalent of a general search warrant or writ ofassistance; as an "incident" to the arrest, the arresting officerscan search the surrounding premises without limitation for thefruits, instrumentalities and anything else connected with thecrime charged or with any other possible crime. They may disregardwith impunity all the historic principles underlying the FourthAmendment relative to indiscriminate searches of a man's home whenhe is placed under arrest.See Boyd v. United States,116 U. S. 616,116 U. S.624-632;Weeks v. United States, supra; Byars v.United States,273 U. S. 28. Theymay disregard the fact that the Fourth Amendment was designed inpart, indeed perhaps primarily, to outlaw such general warrants,that there is no exception in favor of general searches in thecourse of executing a lawful warrant for arrest. As to those placedunder arrest, the restrictions of the Fourth Amendment on searchesare now words without meaning or effect.

Nor is the flagrant violation of the Fourth Amendment in thiscase remedied by the fact that the arresting officers, during thecourse of their ransacking search, uncovered and seized certainarticles which it was unlawful for petitioner to possess. It haslong been recognized, of course, that certain objects, thepossession of which is in some way illegal, may be seized onappropriate occasions without a search warrant. Such objectsinclude stolen goods, property forfeited to the Government,property concealed to avoid payment of duties, counterfeit coins,burglar tools, gambling paraphernalia, illicit liquor and the like.Boyd v. United States, supra, at116 U. S.623-624;

Page 331 U. S. 192

United States v. Lefkowitz, supra, at285 U. S.465-466;Gouled v. United States,255 U.S. 298,255 U. S. 309.But the permissible seizure of such goods is necessarily dependentupon the seizure occurring (1) during the course of a reasonable,constitutional search, (2) as the result of ready observance of thesurrounding premises by the arresting officers, or (3) as theresult of the use of such objects in the commission of a crime inthe presence of the officers. Never has it been suggested by thisCourt that law enforcement officers can use illegal means to seizethat which it is unlawful to possess. To break and enter, to engagein unauthorized and unreasonable searches, to destroy all therights to privacy in an effort to uproot crime may suit thepurposes of despotic power, but those methods cannot abide the pureatmosphere of a free society.

The seizure here, as noted, did not occur during the course of areasonable, constitutional search. Nor did it result from the readyobservance of the surrounding premises; the draft certificates andnotices were discovered only after a most meticulous ransacking. Itis said, however, that the possession of these items by petitionerconstituted a continuing offense committed in the presence of thearresting officers. This may be a dialectical way of putting thematter, but it would not commend itself to the common understandingof men. From a practical standpoint, these certificates and noticeswere not being possessed in the presence of the officers. They werehidden away in the bottom of a dresser drawer beneath some clothes.No arresting officer could possibly be aware of their existence orlocation unless he possessed some supernatural faculty. Indeed, ifan arresting officer is to be allowed to search for and seize allhidden things the possession of which is unlawful, on the theorythat the possession is occurring in his presence, there would benothing

Page 331 U. S. 193

left of the Fourth Amendment. Law enforcement officers would beinvited to ignore the right to privacy executing warrants of arrestand searching without restraint and without regard toconstitutional rights for those hidden items which were beingillegally "possessed" in their "presence."

The key fact of this case is that the search was lawless. Alawless search cannot give rise to a lawful seizure, even ofcontraband goods. And "good faith" on the part of the arrestingofficers cannot justify a lawless search, nor support a lawlessseizure. In forbidding unreasonable searches and seizures, theConstitution made certain procedural requirements indispensable forlawful searches and seizures. It did not mean, however, tosubstitute the good intentions of the police for judicialauthorization except in narrowly confined situations. History, bothbefore and after the adoption of the Fourth Amendment, has showngood police intentions to be inadequate safeguards for the preciousrights of man. But the Court now turns its back on that history andleaves the reasonableness of searches and seizures without warrantsto the unreliable judgment of the arresting officers. As a result,the rights of those placed under arrest to be free fromunreasonable searches and seizures are precarious to theextreme.

Now it may be that the illegality of the search and of theseizure in this case leads to the immunizing of petitioner fromprosecution for the illegal possession of the draft certificatesand notices. But freedom from unreasonable search and seizure isone of the cardinal rights of free men under our Constitution. Thatfreedom belongs to all men, including those who may be guilty ofsome crime. The public policy underlying the constitutionalguarantee of that freedom is so great as to outweigh thedesirability of convicting those whose crime has been revealedthrough an unlawful invasion of their

Page 331 U. S. 194

right to privacy. Lawless methods of law enforcement arefrequently effective in uncovering crime, especially where tyrannyreigns, but they are not to be countenanced under our form ofgovernment. It is not a novel principle of our constitutionalsystem that a few criminals should go free rather than that thefreedom and liberty of all citizens be jeopardized.

It is likely that the full impact of today's decision will notbe apparent immediately. Petitioner is not an important ornotorious criminal; and the investigation may have been undertakenwith the best of motives. But, apart from the fact that theConstitution was designed to protect the unimportant as well as theimportant, including those of criminal tendencies, the implicationsof what has been done in this case can affect the freedom of allour people. The principle established by the Court today can beused as easily by some future government determined to suppresspolitical opposition under the guise of sedition as it can be usedby a government determined to undo forgers and defrauders.SeeUnited States v. Kirschenblatt, 16 F.2d 202, 203. History isnot without examples of the outlawry of certain political,religious and economic beliefs and the relentless prosecution ofthose who dare to entertain such beliefs. And history has a way ofrepeating itself. It therefore takes no stretch of the imaginationto picture law enforcement officers arresting those accused ofbelieving, writing or speaking that which is proscribed,accompanied by a thorough ransacking of their homes as an"incident" to the arrest in an effort to uncover "anything" of aseditious nature. Under the Court's decision, the Fourth Amendmentno longer stands as a bar to such tyranny and oppression. On thecontrary, direct encouragement is given to this abandonment of theright of privacy, a right won at so great a cost by

Page 331 U. S. 195

those who fought for freedom through the flight of time.

As Judge Learned Hand recently said,

"If the prosecution of crime is to be conducted with so littleregard for that protection which centuries of English law havegiven to the individual, we are indeed at the dawn of a new era,and much that we have deemed vital to our liberties is adelusion."

United States v. DiRe, 159 F.2d 818, 820.

MR. JUSTICE FRANKFURTER and MR. JUSTICE RUTLEDGE join thisdissent.

MR. JUSTICE JACKSON, dissenting.

This case calls upon the Court to say whether any right tosearch a home is conferred on officers by the fact that within thathome they arrest one of its inhabitants. The law in this field hasnot been made too clear by our previous decisions. I do notcriticize the officers involved in this case, because this Court'sdecisions afford them no clear guidance.

The Fourth Amendment first declares in bold broad terms:

"The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures,shall not be violated. . . ."

Our trouble arises because this sentence leaves debatable whatparticular searches are unreasonable ones. Those who think it theirduty to make searches seldom agree on this point with those whofind it in their interest to frustrate searches.

The Amendment, having thus roughly indicated the immunity of thecitizen which must not be violated, goes on to recite how officersmay be authorized, consistently with the right so declared, to makesearches:

". . . and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing

Page 331 U. S. 196

the place to be searched, and the persons or things to beseized."

Here endeth the command of the forefathers, apparently becausethey believed that, by thus controlling search warrants, they hadcontrolled searches. The forefathers, however, were guilty of aserious oversight if they left open another way by which searcheslegally may be made without a search warrant and with none of thesafeguards that would surround the issuance of one.

Of course, a warrant to take a person into custody is authorityfor taking into custody all that is found upon his person or in hishands. Some opinions have spoken in generalities of this right tosearch such property incidentally to arrest of the person asincluding whatever was in the arrested person's "possession."

Repeated efforts have been made to expand this search to includeall premises and property in constructive possession by reason oftenancy or ownership. While the language of this Court sometimeshas been ambiguous, I do not find that the Court heretofore hassustained this extension of the incidental search.Go-BartImporting Co. v. United States,282 U.S. 344;United States v. Lefkowitz,285 U. S. 452. Inthis respect, it seems to me, the decision of today goes beyond anyprevious one and throws a home open to search on a warrant thatdoes not in any respect comply with the constitutional requirementsof a search warrant and does not even purport to authorize anysearch of an premises.

The decision certainly will be taken, in practice, as authorityfor a search of any home, office or other premises if a warrant canbe obtained for the arrest of any occupant and the officer choosesto make the arrest on the premises. It would seem also to permitsuch search incidentally to an arrest without a warrant if thecircumstances make such arrest a lawful one. It would also appearto sanction

Page 331 U. S. 197

a search of premises even though the arrest were for the mostpetty of misdemeanors. It leaves to the arresting officer choice ofthe premises to be searched insofar as he can select the placeamong those in which the accused might be found where he willexecute the warrant of personal arrest. Thus, the premises to besearched are determined by an officer, rather than by a magistrate,and the search is not confined to places or for things"particularly described" in a warrant, but, in practice, will be asextensive as the zeal of the arresting officer in the excitement ofthe chase suggests. Words of caution will hedge an opinion, butthey are not very effective in hedging searches.

The difficulty with this problem for me is that, once the searchis allowed to go beyond the person arrested and the objects uponhim or in his immediate physical control, I see no practical limitshort of that set in the opinion of the Chief Justice -- and thatmeans, to me, no limit at all.

I am unable to suggest any test by which an incidental search,if permissible at all, can in police practice be kept within boundsthat are reasonable. I hear none. I do not agree with otherJustices in dissent that the intensity of this search made itillegal. It is objected that these searchers went througheverything in the premises. But is a search valid if superficialand illegal only if it is thorough? It took five hours on the partof several officers. But if it was authorized at all, it can hardlybecome at some moment illegal because there was so much stuff toexamine that it took overtime. It is said this search went beyondwhat was in "plain sight." It would seem a little capricious to saythat a gun on top of a newspaper could be taken but a newspaper ontop of a gun insulated it from seizure. If it were wrong to open asealed envelope in this case, would it have been right if themucilage failed to stick? The short of the thing is that we cannotsay

Page 331 U. S. 198

that a search is illegal or legal because of what it ends in. Itis legal or illegal because of the conditions in which itstarts.

I cannot escape the conclusion that a search, for which we canassign no practicable limits, on premises and for things which noone describes in advance, is such a search as the Constitutionconsidered "unreasonable," and intended to prohibit.

In view of the long history of abuse of search and seizure whichled to the Fourth Amendment, I do not think it was intended toleave open an easy way to circumvent the protection it extended tothe privacy of individual life. In view of the readiness of zealotsto ride roughshod over claims of privacy for any ends that impressthem as socially desirable, we should not make inroads on therights protected by this Amendment. The fair implication of theConstitution is that no search of premises, as such, is reasonableexcept the cause for it be approved and the limits of it fixed andthe scope of it particularly defined by a disinterested magistrate.If these conditions are necessary limitations on a court's powerexpressly to authorize a search, it would not seem that they shouldbe entirely dispensed with because a magistrate has issued awarrant which contains no express authorization to search atall.

Of course, this, like each of our constitutional guaranties,often may afford a shelter for criminals. But the forefathersthought this was not too great a price to pay for that decentprivacy of home, papers and effects which is indispensable toindividual dignity and self respect. They may have overvaluedprivacy, but I am not disposed to set their command at naught.