U.S. Supreme Court

United States v. Rabinowitz,339 U.S.56 (1950)United States v.Rabinowitz

No. 293

Argued January 11,1950

Decided February 20,1950

339 U.S.56

CERTIORARI TO THE UNITED STATESCOURT OF APPEALS

FOR THE SECONDCIRCUIT

Syllabus

1. Knowing that respondent had sold four forged postage stampsto a government agent and probably possessed many more in hisone-room place of business which was open to the public, officersobtained a warrant for his arrest; but they did not obtain a searchwarrant. They arrested him in his place of business, searched thedesk, safe, and file cabinets, and seized 573 forged stamps. He wasindicted for possessing and concealing the stamps so seized and forselling the four that had been purchased. The seized stamps wereadmitted in evidence over his objection, and he was convicted onboth counts.

Held: The search and seizure were incident to a lawfularrest, they were not unreasonable, and they did not violate theFourth Amendment. Pp.339 U. S.57-66.

(a) What is a reasonable search is not to be determined by anyfixed formula. The recurring questions of the reasonableness ofsearches must find resolution in the facts and circumstances ofeach case. P.339 U. S.63.

(b) Here, the search and seizure were reasonable because: (1)they were incident to a valid arrest; (2) the place of the searchwas a business room to which the public, including the officers,was invited; (3) the room was small, and under the immediate andcomplete control of respondent; (4) the search did not extendbeyond the room used for unlawful purposes; and (5) the possessionof the forged stamps was a crime. Pp.339 U. S.63-64.

2.Trupiano v. United States,334 U.S. 699, overruled to the extent that it requires asearch warrant solely upon the basis of the practicability ofprocuring it, rather than upon the reasonableness of the searchafter a lawful arrest. Pp.339 U. S. 65-66.

176 F.2d 732, reversed.

Respondent was convicted of violating 18 U.S.C. (1946 ed.) §§265, 268. The Court of Appeals reversed. 176 F.2d 732. This Courtgranted certiorari. 338 U.S. 884.Reversed, p.339 U. S.66.

Page 339 U. S. 57

MR. JUSTICE MINTON delivered the opinion of the Court.

Respondent was convicted of selling and of possessing andconcealing forged and altered obligations of the United States withintent to defraud. The question presented here is thereasonableness of a search without a search warrant of a place ofbusiness consisting of a one-room office, incident to a validarrest.

On February 1, 1943, a printer who possessed plates for forging"overprints" on canceled stamps was taken into custody. Hedisclosed that respondent, a dealer in stamps, was one of thecustomers to whom he had delivered large numbers of stamps bearingforged overprints. [Footnote 1]On Saturday, February 6, 1943, with this information concerningrespondent and his activities in the hands of Government officers,a postal employee was sent to respondent's place of business to buystamps bearing overprints. He bought four stamps. On Monday,February 8, the stamps were sent to an expert to determine whetherthe overprints were genuine. On February 9, the report was receivedshowing the overprints to be forgeries, having been placed upon thestamps after cancellation, and not before, as was the Government'spractice. On February 11, a further statement was obtained

Page 339 U. S. 58

from the printer who had made the overprints. On February 16,1943, a warrant for the arrest of respondent was obtained.

In 1941, respondent had been convicted and sentenced to threemonths' imprisonment on a plea of guilty to a two-count indictmentcharging the alteration of obligations of the United States, thatis, of overprinting Government postage stamps, and the possessionof a plate from which a similitude of a United States obligationhad been printed. Thus, when the warrant for arrest was obtained,the officers had reliable information that respondent was an oldoffender, that he had sold four forged and altered stamps to anagent of the Government, and that he probably possessed severalthousand altered stamps bearing forged overprints. While thewarrant of arrest was not put in evidence, it contained, as aGovernment witness testified on cross-examination, authority toarrest for more than the sale of the four stamps; it covered allthe Government officers' information. [Footnote 2]

Armed with this valid warrant for arrest, the Governmentofficers, accompanied by two stamp experts, went to respondent'splace of business, a one-room office open to the public. Theofficers thereupon arrested the respondent,

Page 339 U. S. 59

and, over his objection, searched the desk, safe, and filecabinets in the office for about an hour and a half. They found andseized 573 stamps on which it was later determined that overprintshad been forged, along with some other stamps which weresubsequently returned to respondent.

Respondent was indicted on two counts. He was charged in countone with selling four forged and altered stamps, knowing they wereforged and altered and with the intent that they be passed asgenuine. [Footnote 3] Thesecond count charged that he did keep in his possession andconceal, with intent to defraud, the 573 forged and altered stamps.[Footnote 4]

Respondent made timely motions for suppression and to strike theevidence pertaining to the 573 stamps, all of which were eventuallydenied. Respondent was convicted on both counts after trial beforea jury in which he offered no evidence. Relying onTrupiano v.United States,334 U. S. 699, theCourt of Appeals, one judge dissenting, reversed on the groundthat, since the officers had had time in which to procure a searchwarrant and had failed to do so, the search was illegal, and theevidence therefore should have been excluded. 176 F.2d 732. Wegranted certiorari to determine the validity of the search becauseof the question's importance in the administration of the law ofsearch and seizure. 338 U.S. 884.

Were the 573 stamps, the fruits of this search, admissible inevidence? If legally obtained, these stamps were competent evidenceto show intent under the first count of the indictment, and theywere the very things the possession of which was the crime chargedin the second count.

Page 339 U. S. 60

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."

It is unreasonable searches that are prohibited by the FourthAmendment.Carroll v. United States,267 U.S. 132,267 U. S. 147.It was recognized by the framers of the Constitution that therewere reasonable searches for which no warrant was required. Theright of the "people to be secure in their persons" was certainlyof as much concern to the framers of the Constitution as theproperty of the person. Yet no one questions the right, without asearch warrant, to search the person after a valid arrest. Theright to search the person incident to arrest always has beenrecognized in this country and in England.Weeks v. UnitedStates,232 U. S. 383,232 U. S. 392.Where one had been placed in the custody of the law by valid actionof officers, it was not unreasonable to search him.

Of course, a search without warrant incident to an arrest isdependent initially on a valid arrest. Here, the officers had awarrant for respondent's arrest which was, as far as can beascertained, broad enough to cover the crime of possession chargedin the second count, and consequently respondent was properlyarrested. Even if the warrant of arrest were not sufficient toauthorize the arrest for possession of the stamps, the arresttherefor was valid because the officers had probable cause tobelieve that a felony was being committed in their very presence.Carroll v. United States,267 U.S. 132,267 U. S.156-157.

The arrest was therefore valid in any event, and respondent'sperson could be lawfully searched. Could the

Page 339 U. S. 61

officers search his desk, safe and file cabinets, all withinplain sight of the parties, and all located under respondent'simmediate control in his one-room office open to the public?

Decisions of this Court have often recognized that there is apermissible area of search beyond the person proper. Thus, inAgnello v. United States,269 U. S.20,269 U. S. 30,this Court stated:

"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 to effect anescape from custody, is not to be doubted."

The right

"to search the place where the arrest is made in order to findand seize things connected with the crime as its fruits or as themeans by which it was committed"

seems to have stemmed not only from the acknowledged authorityto search the person, but also from the longstanding practice ofsearching for other proofs of guilt within the control of theaccused found upon arrest.Weeks v. United States,232 U. S. 383,232 U. S. 392.It became accepted that the premises where the arrest was made,which premises were under the control of the person arrested andwhere the crime was being committed, were subject to search withouta search warrant. Such a search was not "unreasonable."Agnellov. United States,269 U. S. 20,269 U. S. 30;Carroll v. United States,267 U.S. 132,267 U. S. 158;Boyd v. United States,116 U. S. 616,116 U. S.623-624.

InMarron v. United States,275 U.S. 192, the officers had a warrant to search for liquor,but the warrant did not describe a certain ledger and invoicespertaining to the operation of the business. The latter were seizedduring the search of the place of business. but were not

Page 339 U. S. 62

returned on the search warrant, as they were not describedtherein. The offense of maintaining a nuisance under the NationalProhibition Act was being committed in the room by the arrestedbartender in the officers' presence. The search warrant was heldnot to cover the articles seized, but the arrest for the offensebeing committed in the presence of the officers was held toauthorize the search for and seizure of the ledger and invoices,this Court saying:

"The officers were authorized to arrest for crime beingcommitted in their presence, and they lawfully arrested Birdsall.They had a right without a warrant contemporaneously to search theplace in order to find and seize the things used to carry on thecriminal enterprise. . . . The closet in which liquor and theledger were found was used as a part of the saloon. And, if theledger was not as essential to the maintenance of the establishmentas were bottles, liquors and glasses, it was nonetheless a part ofthe outfit or equipment actually used to commit the offense. And,while it was not on Birdsall's person at the time of his arrest, itwas in his immediate possession and control. The authority ofofficers to search and seize the things by which the nuisance wasbeing maintained extended to all parts of the premises used for theunlawful purpose."

Marron v. United States,275 U.S. 192,275 U. S.198-199.

We do not understand theMarron case to have beendrained of contemporary vitality byGo-Bart Importing Co. v.United States,282 U. S. 344, andUnited States v. Lefkowitz,285 U.S. 452. Those cases condemned general exploratorysearches, which cannot be undertaken by officers with or without awarrant. In the instant case, the search was not general orexploratory for whatever might be turned up. Specificity was themark of the search and seizure here. There was probable cause tobelieve

Page 339 U. S. 63

that respondent was conducting his business illegally. Thesearch was for stamps overprinted illegally, which were thoughtupon the most reliable information to be in the possession of andconcealed by respondent in the very room where he was arrested,over which room he had immediate control, and in which he had beenselling such stamps unlawfully.Harris v. United States,331 U. S. 145,which has not been overruled, is ample authority for the morelimited search here considered. In all the years of our Nation'sexistence, with special attention to the Prohibition Era, it seemsnever to have been questioned seriously that a limited search suchas here conducted as incident to a lawful arrest was a reasonablesearch, and therefore valid. [Footnote 5] It has been considered in the same pattern assearch of the person after lawful arrest.

What is a reasonable search is not to be determined by any fixedformula. The Constitution does not define what are "unreasonable"searches, and, regrettably, in our discipline, we have no readylitmus paper test. The recurring questions of the reasonableness ofsearches must find resolution in the facts and circumstances ofeach case.Go-Bart Importing Co. v. United States,282 U. S. 344,282 U. S. 357.Reasonableness is, in the first instance, for the District Court todetermine. We think the District Court's conclusion

Page 339 U. S. 64

that here the search and seizure were reasonable should besustained because: (1) the search and seizure were incident to avalid arrest; (2) the place of the search was a business room towhich the public, including the officers, was invited; (3) the roomwas small, and under the immediate and complete control ofrespondent; (4) the search did not extend beyond the room used forunlawful purposes; (5) the possession of the forged and alteredstamps was a crime, just as it is a crime to possess burglars'tools, lottery tickets or counterfeit money. [Footnote 6]

Assuming that the officers had time to procure a search warrant,were they bound to do so? We think not, because the search wasotherwise reasonable, as previously concluded. In a recent opinion,Trupiano v. United States,334 U.S. 699, this Court first enunciated the requirement thatsearch warrants must be procured when "practicable" in a case ofsearch incident to arrest. On the occasion of the previoussuggestion of such a test,Taylor v. United States,286 U. S. 1, theCourt had been scrupulous to restrict the opinion to the familiarsituation there presented. Prohibition agents, having receivedcomplaints for about a year, went at 2:30 a.m. to a garage adjacentto a house, flashed a light through a small opening, and then brokein and seized liquor. The Court emphasized that "No one was withinthe place, and there was no reason to think otherwise."Id., at286 U. S. 5. Lestthe holding that such a search of an unoccupied building

Page 339 U. S. 65

was unreasonable be thought to have broader significance, theCourt carefully stated in conclusion:

"This record does not make it necessary for us to discuss therule in respect of searches in connection with an arrest. Nooffender was in the garage; the action of the agents had noimmediate connection with an arrest. The purpose was to secureevidence to support some future arrest."

Id. at286 U. S. 6.

A rule of thumb requiring that a search warrant always beprocured whenever practicable may be appealing from the vantagepoint of easy administration. But we cannot agree that thisrequirement should be crystallized into asine qua non tothe reasonableness of a search. It is fallacious to judge eventsretrospectively, and thus to determine, considering the timeelement alone, that there was time to procure a search warrant.Whether there was time may well be dependent upon considerationsother than the ticking off of minutes or hours. The judgment of theofficers as to when to close the trap on a criminal committing acrime in their presence or who they have reasonable cause tobelieve is committing a felony is not determined solely uponwhether there was time to procure a search warrant. Someflexibility will be accorded law officers engaged in daily battlewith criminals for whose restraint criminal laws are essential.

It is appropriate to note that the Constitution does not saythat the right of the people to be secure in their persons shouldnot be violated without a search warrant if it is practicable forthe officers to procure one. The mandate of the Fourth Amendment isthat the people shall be secure againstunreasonablesearches. It is not disputed that there may be reasonable searches,incident to an arrest, without a search warrant. Upon acceptance ofthis established rule that some authority to search follows fromlawfully taking the person into custody, it becomes apparent thatsuch searches turn upon the

Page 339 U. S. 66

reasonableness under all the circumstances, and not upon thepracticability of procuring a search warrant, for the warrant isnot required. To the extent thatTrupiano v. UnitedStates,334 U. S. 699,requires a search warrant solely upon the basis of thepracticability of procuring it, rather than upon the reasonablenessof the search after a lawful arrest, that case is overruled. Therelevant test is not whether it is reasonable to procure a searchwarrant, but whether the search was reasonable. That criterion, inturn, depends upon the facts and circumstances -- the totalatmosphere of the case. It is a sufficient precaution that lawofficers must justify their conduct before courts which have alwaysbeen, and must be, jealous of the individual's right of privacywithin the broad sweep of the Fourth Amendment.

We do not treat additional questions raised by respondent in hisbrief to support the judgment of the Court of Appeals. We considerit appropriate to dispose of these issues on the basis of theexcellent discussion below.

The motion to suppress the evidence was properly denied by theDistrict Court. The judgment of the Court of Appeals isreversed.

Reversed.

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

[Footnote 1]

The stamps involved were genuine postage stamps. At certaintimes, the Government has printed the name of a particular state orpossession on stamps prior to post office sale. Canceled stampsbearing these overprints have an unusual value for stampcollectors.

[Footnote 2]

"Q. Now, when you went to Mr. Rabinowitz' place of business, allyou had with you was a warrant to arrest him in connection with thealleged sale of those four stamps; is that correct? A. And allinformation contained in the arrest warrant, yes."

"Q. I didn't hear the last part of your answer."

"A. In our questions a few minutes back, I stated that the fourstamps were specifically mentioned in the application for thewarrant for arrest, but that there was other information in mypossession that was included in that warrant for arrest."

"Q. Well, wasn't the warrant of arrest issued solely on thecharge that Mr. Rabinowitz had sold four stamps containing false oraltered overprints? Wasn't that what the warrant of arrest wasissued for?"

"A. Primarily, yes, but not completely."

[Footnote 3]

18 U.S.C. (1946 ed.) § 268.

[Footnote 4]

18 U.S.C. (1946 ed.) § 265. All of these stamps are defined bystatute as obligations of the United States. 18 U.S.C. (1946 ed.) §261.

[Footnote 5]

When construing state safeguards similar to the Fourth Amendmentof the Federal Constitution, state courts have shown littlehesitancy in holding that, incident to a lawful arrest uponpremises within the control of the arrested person, a search of thepremises at least to the extent conducted in the instant case isnot unreasonable.See, e.g., Argetakis v. State, 24 Ariz.599, 212 P. 372;Italiano v. State, 141 Fla. 249, 193 So.48,certiorari denied, 310 U.S. 640;State v.Conner, 59 Idaho 695, 89 P.2d 197;State v. Carenza,357 Mo. 1172, 212 S.W.2d 743;State ex rel. Wong You v.District Court, 106 Mont. 347, 78 P.2d 353;Davis v.State, 30 Okl.Cr. 61, 234 P. 787;State ex rel. Fong v.Superior Court, 29 Wash. 2d 601, 188 P.2d 125,certioraridenied, 337 U.S. 956;State v. Adams, 103 W.Va. 77,136 S.E. 703.

[Footnote 6]

There is no dispute that the objects searched for and seizedhere, having been utilized in perpetrating a crime for which arrestwas made, were properly subject to seizure. Such objects are to bedistinguished from merely evidentiary materials which may not betaken into custody.United States v. Lefkowitz, supra, at285 U. S.464-466;Gouled v. United States,255 U.S. 298,255 U. S.309-311. This is a distinction of importance, for"limitations upon the fruit to be gathered tend to limit the questitself. . . ."United States v. Poller, 43 F.2d 911,914.

MR. JUSTICE BLACK, dissenting.

Trupiano v. United States,334 U.S. 699, was decided on the unarticulated premise thatthe Fourth Amendment, of itself, barred the use of evidenceobtained by what the Court considered an "unreasonable" search. Idissented in that case. Later, concurring in this Court's decisioninWolf v. Colorado,338 U. S. 25,338 U. S. 39-40,I stated my agreement with the "plain implication" of theWolf opinion that

"the federal exclusionary rule is not a command

Page 339 U. S. 67

of the Fourth Amendment, but is a judicially created rule ofevidence which Congress might negate."

In the light of theWolf case, theTrupianorule is not a constitutional command, but rather an evidentiarypolicy adopted by this Court in the exercise of its supervisorypowers over federal courts.Cf. McNabb v. United States,318 U. S. 332. Thepresent case comes within that rule: the trial court admittedcertain evidence procured by a search and seizure without a searchwarrant, although the officers had ample time and opportunity toget one. Whether this Court should adhere to theTrupianoprinciple making evidence so obtained inadmissible in federalcourts now presents no more than a question of what is wisejudicial policy. Although the rule does not in all respects conformto my own ideas, I think that the reasons for changing it areoutweighed by reasons against its change.

In recent years, the scope of the rule has been a subject ofalmost constant judicial controversy both in trial and appellatecourts. In no other field has the law's uncertainty been moreclearly manifested. To some extent, that uncertainty may beunavoidable. TheTrupiano case itself added new confusions"in a field already replete with complexities."Trupiano v.United States, supra,334 U. S. 716. But overruling that decision merelyaggravates existing uncertainty. For as MR. JUSTICE FRANKFURTERpoints out, today's holding casts doubt on other cases recentlydecided. And I do not understand how trial judges can be expectedto foresee what further shifts may occur. In my judgment, it wouldbe wiser judicial policy to adhere to theTrupiano rule ofevidence, at least long enough to see how it works.

That rule is based upon very strict requirements designed tonarrow the occasions upon which officers can make searches andseizures without judicial warrant. Unquestionably its applicationwill now and then permit

Page 339 U. S. 68

a guilty person to escape conviction because of hasty orill-advised action on the part of enforcement officers. But thesame may be said of the requirements of the Fourth Amendment whichthe exclusionary rule was fashioned to implement. The framers ofthe Fourth Amendment must have concluded that reasonably strictsearch and seizure requirements were not too costly a price to payfor protection against the dangers incident to invasion of privatepremises and papers by officers, some of whom might be overzealousand oppressive.See dissent inFeldman v. UnitedStates,322 U. S. 487,322 U. S.500-502. Nor can I see where the enforcement of criminaljustice is likely to be seriously handicapped by adhering to theTrupiano holding.

I would affirm the judgment of the Court of Appeals.

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins,dissenting.

The clear-cut issue before us is this: in making a lawfularrest, may arresting officers search without a search warrant notmerely the person under arrest or things under his immediatephysical control, but the premises where the arrest is made,although there was ample time to secure such a warrant and nodanger that the "papers and effects" for which a search warrantcould be issued would be despoiled or destroyed?

The old saw that hard cases make bad law has its basis inexperience. But petty cases are even more calculated to make badlaw. The impact of a sordid little case is apt to obscure theimplications of the generalization to which the case gives rise.Only thus can I account for a disregard of the history embedded inthe Fourth Amendment and the great place which belongs to thatAmendment in the body of our liberties as recognized and applied byunanimous decisions over a long stretch of the Court's history.

Page 339 U. S. 69

It is a fair summary of history to say that the safeguards ofliberty have frequently been forged in controversies involving notvery nice people. And so, while we are concerned here with a shabbydefrauder, we must deal with his case in the context of what arereally the great themes expressed by the Fourth Amendment. Adisregard of the historic materials underlying the Amendment doesnot answer them.

1. It is true also of journeys in the law that the place youreach depends on the direction you are taking. And so, where onecomes out on a case depends on where one goes in. It makes all thedifference in the world whether one approaches the Fourth Amendmentas the Court approached it inBoyd v. United States,116 U. S. 616, inWeeks v. United States,232 U. S. 383, inSilverthorne Lumber Co. v. United States,251 U.S. 385, inGouled v. United States,255 U. S. 298, orone approaches is as a provision dealing with a formality. It makesall the difference in the world whether one recognizes the centralfact about the Fourth Amendment, namely, that it was a safeguardagainst recurrence of abuses so deeply felt by the Colonies as tobe one of the potent causes of the Revolution, or one thinks of itas merely a requirement for a piece or paper.

2. This is the Fourth Amendment:

"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."

These words are not just a literary composition. They are not tobe read as they might be ready by a man who knows English but hasno knowledge of the history that gave rise to the words. The clueto the meaning and

Page 339 U. S. 70

scope of the Fourth Amendment is John Adams' characterization ofOtis' argument against search by the police that "Americanindependence was then and there born." 10 Adams,Works247. One cannot wrench "unreasonable searches" from the text andcontext and historic content of the Fourth Amendment. It was theanswer of the Revolutionary statesmen to the evils of searcheswithout warrants and searches with warrants unrestricted in scope.Both were deemed "unreasonable." Words must be read with the glossof the experience of those who framed them. Because the experienceof the framers of the Bill of Rights was so vivid, they assumedthat it would be carried down the stream of history and that theirwords would receive the significance of the experience to whichthey were addressed -- a significance not to be found in thedictionary. When the Fourth Amendment outlawed "unreasonablesearches" and then went on to define the very restricted authoritythat even a search warrant issued by a magistrate could give, theframers said with all the clarity of the gloss of history that asearch is "unreasonable" unless a warrant authorizes it, barringonly exceptions justified by absolute necessity. Even a warrantcannot authorize it except when it is issued "upon probable cause .. . and particularly describing the place to be searched, and thepersons or things to be seized." [Footnote 2/1] With all respect, I suggest that it makesa mockery of the Fourth Amendment to sanction search without asearch warrant merely because of the

Page 339 U. S. 71

legality of an arrest. I have yet to hear the answer to JudgeLearned Hand's reasoning below that to make the validity of asearch

"depend upon the presence of the party in the premises searchedat the time of the arrest . . . would make crucial a circumstancethat has no rational relevance to the purposes of the privilege.The feelings which lie behind it have their basis in theresentment, inevitable in a free society, against the invasion of aman's privacy without some judicial sanction. It is true that, whenone has been arrested in his home or his office, his privacy hasalready been invaded; but that interest, though lost, is altogetherseparate from the interest in protecting his papers fromindiscriminate rummage, even though both are customarily groupedtogether as parts of the 'right of privacy.' . . . The history ofthe two privileges is altogether different; the Fourth Amendmentdistinguishes between them; and, in statutes, they have always beentreated as depending upon separate conditions."

176 F.2d 732, 735.

3. This brings me to a consideration of the right of search andseizure "incident to arrest." Undue haste in coming to that issuetoo readily leads to getting off the track of the Fourth Amendment.The Government argued as though the Constitution said search ofpremises may be at large whenever an arrest is made in them. Theutterly free hand, for all practical purposes, this gives thearresting officers to rummage all over the house is, I think,inevitable unless the basis of any right to search as an incidentto arrest is put in proper focus. Photographs can be so taken as tomake a midget look like a giant, and vice versa. The same kind ofdistortion results if a legal doctrine embedded in a larger matrixof principle is taken out of the matrix and elevated to anindependent position. In

Page 339 U. S. 72

plain English, the right to search incident to arrest is merelyone of those very narrow exceptions to the

"guaranties and immunities which we had inherited from ourEnglish ancestors, and which had, from time immemorial, beensubject to certain well recognized exceptions arising from thenecessities of the case."

Robertson v. Baldwin,165 U. S. 275,165 U. S.281.

4. What, then, is the exception to the prohibition by the FourthAmendment of search without a warrant in case of a legal arrest,whether the arrest is on a warrant or based on the historic rightof arrest without a warrant if a crime is committed in the presenceof the arrester? The exception may in part be a surviving incidentof the historic role of "hue and cry" in early Anglo-Saxon law.See Judge Cardozo inPeople v. Chiagles, 237 N.Y.193, 196, 142 N.E. 583, 584. Its basic roots, however, lie innecessity. What is the necessity? Why is search of the arrestedperson permitted? For two reasons: first, in order to protect thearresting officer and to deprive the prisoner of potential means ofescape,Closson v. Morrison, 47 N.H. 482, and, secondly,to avoid destruction of evidence by the arrested person.SeeReifsnyder v. Lee, 44 Iowa 101, 103;Holker v.Hennessey, 141 Mo. 527, 540, 42 S.W. 1090, 1093. From this itfollows that officers may search and seize not only the thingsphysically on the person arrested, but those within his immediatephysical control. What a farce it makes of the whole FourthAmendment to say that, because, for many legal purposes, everythingin a man's house is under his control, therefore his house -- hisrooms -- may be searched. Of course, in this field of law, as inothers, opinions sometimes use language not with fastidiousprecision. Apart from such instances of loose use of language, thedoctrine of search incidental to arrest has, until very recently,been strictly confined to the necessities of the situation,i.e., the search

Page 339 U. S. 73

of the person and those immediate physical surroundings whichmay fairly be deemed to be an extension of his person.

5. Another exception to the constitutional prohibition ofunreasonable searches is likewise rooted in necessity. The searchwithout a warrant of moving objects -- vehicles and vessels -- wassanctioned inCarroll v. United States,267 U.S. 132, on the ground that

"it is not practicable to secure a warrant, because the vehiclecan be quickly moved out of the locality or jurisdiction in whichthe warrant must be sought."

267 U.S. at267 U. S. 153.Furthermore, the limits of the exception were carefully defined interms of necessity, for the Court added:

"In cases where the securing of a warrant is reasonablypracticable, it must be used and when properly supported byaffidavit and issued after judicial approval protects the seizingofficer against a suit for damages. In cases where seizure isimpossible except without warrant, the seizing officer actsunlawfully and at his peril unless he can show the court probablecause."

267 U.S. at267 U. S.156.

Even as to moving vehicles, this Court did not lay down anabsolute rule dispensing with a search warrant. It limiteddispensation to the demands of necessity, where want of timeprecluded the obtaining of a warrant. The necessity founded on thetime factor which guided the Court in theCarroll casecannot justify the search here made of the respondent's premises,for there was ample time to obtain a warrant before the arrest andeven on the occasion of the arrest.

6. It is in this connection that the body of congressionalenactments becomes significant, particularly legislationcontemporaneous with the adoption of the Bill of Rights. Ifexplicit legislation was deemed necessary to inspect withoutwarrant even vessels and vehicles, and if

Page 339 U. S. 74

Congress has been very niggardly in giving authority to searcheven with a warrant -- niggardly both as to the officers who mayobtain such warrants and as to strictly defined circumstances underwhich search is allowed -- the attitude disclosed by thisimpressive legislation bears powerfully on the historic purposes ofthe Fourth Amendment and the functions that it fulfills in ourdemocracy. It deserves to be recalled that Congress, despiterepeated requests by Attorneys General, long refused to make searchby warrant generally available as an aid to criminal prosecution.It did not do so until the First World War, and even then it didnot do so except under conditions most carefully circumscribed.[Footnote 2/2]

7. With only rare deviations, such as today's decision, thisCourt has construed the Fourth Amendment "liberally to safeguardthe right of privacy."United States v. Lefkowitz,285 U. S. 452,285 U. S. 464.[Footnote 2/3] The guiding line indealing with the Fourth Amendment was set forth inGouled v.United States,255 U. S. 298,255 U. S.303-304:

"It would not be possible to add to the emphasis with which theframers of our Constitution and this court (inBoyd v. UnitedStates,116 U. S. 616, inWeeks v.United States,232 U. S. 383, and inSilverthorne Lumber Co. v. United States,251 U. S.385) have declared the importance to political libertyand to the welfare of our country of the due observance of therights guaranteed under the Constitution by these two amendments.The effect of the decisions cited is: that such rights are declaredto be indispensable to the 'full enjoyment of personalsecurity,

Page 339 U. S. 75

personal liberty and private property'; that they are to beregarded as of the very essence of constitutional liberty; and thatthe guaranty of them is as important and as imperative as are theguaranties of the other fundamental rights of the individualcitizen -- the right, to trial by jury, to the writ of habeascorpus, and to due process of law. It has been repeatedly decidedthat these amendments should receive a liberal construction so asto prevent stealthy encroachment upon or 'gradual depreciation' ofthe rights secured by them, by imperceptible practice of courts orby well intentioned, but mistakenly overzealous, executiveofficers."

8. The opinion of the Court insists, however, that its majorpremise -- that an arrest creates a right to search the place ofarrest -- finds support in decisions beginning withWeeks v.United States,232 U. S. 383.These decisions do not justify today's decision. They merely provehow a hint becomes a suggestion, is loosely turned into dictum andfinally elevated to a decision. This progressive distortion is dueto an uncritical confusion of (1) the right to search the personarrested and articles in his immediate physical control and (2) theright to seize visible instruments or fruits of crime at the sceneof the arrest with (3) an alleged right to search the place ofarrest. It is necessary in this connection to distinguish clearlybetween prohibited searches and improper seizures. It isunconstitutional to make an improper search even for articles thatare appropriately subject to seizure when found by legal means.E.g., Amos v. United States,255 U.S. 313;Byars v. United States,273 U. S.28;Taylor v. United States,286 U. S.1. Thus, the seizure of items properly subject toseizure because in open view at the time of arrest does not carrywith it the right to search for such items.

Page 339 U. S. 76

The doctrine of the right to search the place of arrestannounced today rests on the precarious foundation of this passagein theWeeks case:

"What, then, is the present case? Before answering that inquiryspecifically, it may be well by a process of exclusion to statewhat it is not. It is not an assertion of the right on the part ofthe government always recognized under English and American law, tosearch the person of the accused when legally arrested, to discoverand seize the fruits or evidences of crime. This right has beenuniformly maintained in many cases. 1 Bishop, Crim. Proc., § 211;Wharton, Crim.Pl. & Pr., 8th ed., § 60;Dillon v.O'Brien, 16 Cox C.C. 245. . . . Nor is it the case ofburglar's tools or other proofs of guilt found upon his arrestwithin the control of the accused."

232 U. S. 232 U.S.383,232 U. S.392.

The statement does not even refer to a right to search the placeof arrest, and the authorities cited merely support the assertionof a right to search the person arrested and to seize visibleinstruments or fruits of crime. [Footnote 2/4]

The authority to search which flows from the right to arrest wasnext discussed by this Court inCarroll v. United States,267 U. S. 132,267 U. S.158:

"When a man is legally arrested for an offense, whatever isfound upon his person or in his control which it is unlawful forhim to have and which may be used to prove the offense may beseized and held as evidence in the prosecution. "

Page 339 U. S. 77

While broader than theWeeks statement, this is stillfar from claiming the right to search a place merely because of anarrest there. What was said in the earlier case about articles inthe control of the arrested person not being in issue is now statedpositively as a right to seize whatever is found in the control ofthe person arrested. ThisCarroll statement is based onwhat was said inWeeks, and on two State cases which didnot enunciate a right to search the place of arrest. [Footnote 2/5]

These limited statements in theWeeks andCarroll opinions were uncritically expanded inAgnellov. United States,269 U. S. 20,269 U. S.30:

"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 to effect anescape from custody is not to be doubted.See Carroll v. UnitedStates,267 U. S. 132,267 U. S.158;Weeks v. United States,232 U. S.383,232 U. S. 392."

If such a right was "not to be doubted" it certainly cannot besupported by the cases cited.Carroll andWeeksmay

Page 339 U. S. 78

have established a right to seize visible evidences of crime andto search the person arrested and even objects he physicallycontrols, but neither case so much as hints that there is a rightto search the entire place of arrest for "things connected with thecrime."

InMarron v. United States,275 U.S. 192, these carelessly phrased dicta were for thefirst time reflected in the result. The statement in the opinionthat officers

"had a right without a warrant contemporaneously to search theplace in order to find and seize the things used to carry on thecriminal enterprise,"

275 U.S. at275 U. S. 199, wasdrastically qualified byGo-Bart Co. v. United States,282 U. S. 344, andUnited States v. Lefkowitz,285 U.S. 452. The teaching of those cases is that the warrantof arrest carries with it authority to seize all that is on theperson, or in such immediate physical relation to the one arrestedas to be in a fair sense a projection of his person. TheLefkowitz decision emphasized that the things seized inMarron "being in plain view were picked up by the officersas an incident of the arrest. No search for them was made." 285U.S. at285 U. S. 465.Thus explained,Marron stands merely for the historicallyjustified right to seize visible instruments of crime at the sceneof the arrest.

In reliance on the prior dicta and on theMarrondecision, it was asserted inHarris v. United States,331 U. S. 145,331 U. S. 150,that "Search and seizure incident to lawful arrest is a practice ofancient origin." Literally, this is true: the right to search theperson arrested and to seize visible instruments of crime has agood legal title. But judicial history cannot be avouched if thisstatement is meant to cover the right to search the place ofarrest. Such a claim can only be made by sliding from a search ofthe person to a search for things in his "possession" or "in hisimmediate control," without regard to the treacherous ambiguity ofthese terms, and then using

Page 339 U. S. 79

these phrases, taken out of their original context, so as toinclude the entire premises.

The short of it is that the right to search the place of arrestis an innovation based on confusion, without historic foundation,and made in the teeth of a historic protection against it.

9. If the exception of search without a warrant incidental to alegal arrest is extended beyond the person and his physicalextension, search throughout the house necessarily follows. I amaware that most differences in the law depend on differences ofdegree. But differences though of degree must not be capricious;the differences must permit rational classification. If upon arrestyou may search beyond the immediate person and the very restrictedarea that may fairly be deemed part of the person, what rationalline can be drawn short of searching as many rooms as arrestingofficers may deem appropriate for finding "the fruits of thecrime"? Is search to be restricted to the room in which the personis arrested, but not to another open room into which it leads? Or,take a house or an apartment consisting largely of one big roomserving as dining room, living room and bedroom. May search be madein a small room, but not in such a large room? If you may searchthe bedroom part of a large room, why not a bedroom separated fromthe dining room by a partition? These are not silly hard cases.They put the principle to a test. The right to search an arrestedperson and to take the stuff on top of the desk at which he sitshas a justification of necessity which does not eat away the greatprinciple of the Fourth Amendment. But to assume that thisexception of a search incidental to arrest permits a free-handedsearch without warrant is to subvert the purpose of the FourthAmendment by making the exception displace the principle. Historyand the policy which it represents alike admonish against it.

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10. To tear "unreasonable" from the context and history andpurpose of the Fourth Amendment in applying the narrow exception ofsearch as an incident to an arrest is to disregard the reason towhich reference must be made when a question arises under theFourth Amendment. It is to make the arrest an incident to anunwarranted search, instead of a warrantless search an incident toan arrest. The test by which searches and seizures must be judgedis whether conduct is consonant with the main aim of the FourthAmendment. The main aim of the Fourth Amendment is against invasionof the right of privacy as to one's effects and papers, withoutregard to the result of such invasion. The purpose of the FourthAmendment was to assure that the existence of probable cause as thelegal basis for making a search was to be determined by a judicialofficer before arrest and not after, subject only to what isnecessarily to be excepted from such requirement. The exceptionscannot be enthroned into the rule. The justification for intrusioninto a man's privacy was to be determined by a magistrateuninfluenced by what may turn out to be a successful search forpapers, the desire to search for which might be the very reason forthe Fourth Amendment's prohibition. The framers did not regardjudicial authorization as a formal requirement for a piece ofpaper. They deemed a man's belongings part of his personality andhis life. In dealing with the question, this Court inUnitedStates v. Lefkowitz,285 U. S. 452,285 U. S. 464,approvingly cited what was said by Judge Learned Hand inUnitedStates v. Kirschenblatt, 16 F.2d 202, 203:

"Whatever the casuistry of border cases, it is broadly a totallydifferent thing to search a man's pockets and use against him whatthey contain, from ransacking his house for everything which mayincriminate him, once you have gained lawful entry, either

Page 339 U. S. 81

by means of a search warrant or by his consent. The second is apractice which English-speaking peoples have thought intolerablefor over a century and a half. It was against general warrants ofsearch, whose origin was, or was thought to be, derived from StarChamber, and which had been a powerful weapon for suppressingpolitical agitation, that the decisions were directed, of whichEntick v. Carrington, 19 How.St.Trials, 1029, is mostoften cited. These cases were decided just after the colonists hadbeen hotly aroused by the attempt to enforce customs duties bywrits of assistance, and when, within 30 years, they framed theFourth Amendment, it was general warrants that they especially hadin mind.Boyd v. United States,116 U. S.616. . . ."

"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 beforget 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. "

Page 339 U. S. 82

11. By the Bill of Rights, the founders of this countrysubordinated police action to legal restraints not in order toconvenience the guilty, but to protect the innocent. Nor did theyprovide that only the innocent may appeal to these safeguards. Theyknew too well that the successful prosecution of the guilty doesnot require jeopardy to the innocent. The knock at the door underthe guise of a warrant of arrest for a venial or spurious offensewas not unknown to them.Compare the statement inWeeks v. United States,232 U. S. 383,232 U. S. 390,that searches and seizures had been made under general warrants inEngland "in support of charges, real or imaginary." We have hadgrim reminders in our day of their experience. Arrest under awarrant for a minor or a trumped-up charge has been familiarpractice in the past, is a commonplace in the police state oftoday, and too well known in this country.See Lanzetta v. NewJersey,306 U. S. 451. Theprogress is too easy from police action unscrutinized by judicialauthorization to the police state. The founders wrote into theConstitution their conviction that law enforcement does not requirethe easy but dangerous way of letting the police determine whensearch is called for without prior authorization by a magistrate.They have been vindicated in that conviction. It may safely beasserted that crime is most effectively brought to book when theprinciples underlying the constitutional restraints upon policeaction are most scrupulously observed.

The highly experienced Commission on Law Observance andEnforcement appointed by President Hoover spoke of "the highstandards of conduct exacted by Englishmen of the police." Vol. IVReports of the National Commission on Law Observance andEnforcement ("Lawlessness in Law Enforcement") p. 259. It issuggested that we cannot afford the luxury of such

Page 339 U. S. 83

theoretically desirable subordination of the police to lawbecause greater obedience to law is part of English life generally.I do not think that acceptance of lower standards than thoseprevailing in England should be written by us into law. That onlyserves to encourage low standards, not to elevate them. It isunfair to our people to suggest that they cannot attain as highstandards as do the British in guarding against police excesseswithout impairing effective means for combatting crime. Experienceproves that it is a counsel of despair to assume that the policecannot be kept within the bounds of the principles which the Fourthand Fifth Amendments embody except at the cost of impotence inpreventing crime and dealing sternly with its commission.

12. To say that the search must be reasonable is to require somecriterion of reason. It is no guide at all either for a jury or fordistrict judges or the police to say that an "unreasonable search"is forbidden -- that the search must be reasonable. What is thetest of reason which makes a search reasonable? The test is thereason underlying and expressed by the Fourth Amendment: thehistory and the experience which it embodies and the safeguardsafforded by it against the evils to which it was a response. Theremust be a warrant to permit search, barring only inherentlimitations upon that requirement when there is a good excuse fornot getting a search warrant,i.e., the justificationsthat dispense with search warrants when searching the person in hisextension, which is his body and that which his body canimmediately control, and moving vehicles. It is for this Court tolay down criteria that the district judges can apply. It is nocriterion of reason to say that the district court must find itreasonable.

13. Even if the test of reasonableness is to be taken out of thecontext of the history and purpose of the

Page 339 U. S. 84

Fourth Amendment, the test should not be limited to examinationof arresting officers' conduct in making the arrest. Their conductprior to arrest is no less relevant. In any event, therefore, thepresence or absence of an ample opportunity for getting a searchwarrant becomes very important. It is not a rule of thumb. It is arule of the Fourth Amendment, and of the reasons for its adoption.It is not a rule invented inTrupiano v. United States,334 U. S. 699. Itis not a rule of those who came on this Court in recent years. Thedecision inTaylor v. United States,286 U. S.1, turned on it. It was not a sentimental Court thatstated inTaylor:

"Although, over a considerable period, numerous complaintsconcerning the use of these premises had been received, the agentshad made no effort to obtain a warrant for making a search. Theyhad abundant opportunity so to do and to proceed in an orderly wayeven after the odor had emphasized their suspicions; there was noprobability of material change in the situation during the timenecessary to secure such warrant. Moreover, a short period ofwatching would have prevented any such possibility."

286 U.S. at286 U. S. 6.

That the arrest in that case was made after the search was begundoes not affect its importance. Opportunity to obtain a searchwarrant is either relevant or irrelevant in determining theapplication of the Fourth Amendment. As the Court conceives thetest of unreasonableness, different factors may be given varyingweight. But opportunity to obtain a warrant cannot be relevant inone situation and totally irrelevant in another. That is thesignificance of theTaylor case.

In the case before us, there is not the slightest suggestionthat the arresting officers had not the time to

Page 339 U. S. 85

secure a search warrant. The arrest and search were made onFebruary 16, 1943. On February 1, there was strong evidence thatrespondent had in his possession large numbers of stamps bearingforged overprints, in violation of 18 U.S.C. § 265. On February 6,a postal employee purchased from respondent four stamps bearingoverprints and, on February 9, reports were received showing theoverprints to be forgeries. Thus, the Government had at leastseven, and more accurately fifteen, days in which to procure asearch warrant. Nor was this a case in which the need for a searchbecame apparent at the time of arrest. The arresting officers wereaccompanied by two stamp experts, whose sole function was toexamine the fruits of the search which they knew would be made.This is hardly a natural description of a "search incidental to anarrest."

It is most relevant that the officers had "no excuse for notgetting a search warrant," 176 F.2d 732, 735, for that is preciselywhat the Fourth Amendment was directed against -- that somemagistrate, and not the police officer, should determine, if suchdetermination is not precluded by necessity, who shall be rummagingaround in my room, whether it be a small room or a very large room,whether it be one room, or two rooms, or three rooms, or fourrooms.

14. It is not as though we are asked to extend a mischievousdoctrine that has been shown to hamper law enforces. We are askedto overrule decisions based on a long course of prior unanimousdecisions, drawn from history and legislative experience. InoverrulingTrupiano, we overrule the underlying principleof a whole series of recent cases:United States v. Di Re,332 U. S. 581;Johnson v. United States,333 U. S.10;McDonald v. United States,335 U.S. 451, based on the earlier cases. For these casesought not to be allowed to remain as

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derelicts on the stream of the law if we overruleTrupiano. These are not outmoded decisions eroded by time.Even under normal circumstances, the Court ought not to overrulesuch a series of decisions where no mischief flowing from them hasbeen made manifest. Respect for continuity in law, where reasonsfor change are wanting, alone requires adherence toTrupiano and the other decisions. Especially ought theCourt not reenforce needlessly the instabilities of our day bygiving fair ground for the belief that Law is the expression ofchance -- for instance, of unexpected changes in the Court'scomposition and the contingencies in the choice of successors.

[Footnote 2/1]

For a more detailed summary of the English and American historyunderlying the Fourth Amendment,see the dissentingopinions inDavis v. United States,328 U.S. 582,328 U. S.603-605, andHarris v. United States,331 U. S. 145,331 U. S.157-162. The impact of this history was such that everyState of the Union now affords constitutional safeguards againstgovernmental search and seizure. Its contemporary vitality isemphasized by New York's adoption of such a provision as recentlyas 1938. N.Y.Const. of 1938, Art. 1, § 12.

[Footnote 2/2]

See Title XI of the Act of June 15, 1917, 40 Stat. 217,228, now Rule 41 of the Federal Rules of Criminal Procedure. For atable of congressional legislation, indicating its scope,see the Appendix to the dissenting opinion inDavis v.United States,328 U. S. 582,328 U. S.616.

[Footnote 2/3]

See also an analysis of the cases in the Appendix tothe dissenting opinion inHarris v. United States,331 U. S. 145,331 U. S.175.

[Footnote 2/4]

A fair sample is § 60 of Wharton, Crim.Plead. and Practice, 8thed.: "Right to Take Money from the Person of the Defendant," whichdiscusses only the right to search the person arrested. Again, inDillon v. O'Brien and Davis, 16 Cox C.C. 245, the issuewas the right of arresting officers to seize apparent evidences ofcrime, not their right to rifle files in an effort to turn up theevidence.

[Footnote 2/5]

Getchell v. Page, 103 Me. 387, 69 A. 624, was an actionfor trespass for the seizure of accoutrements of liquor-makingunder a warrant which authorized the search and seizure ofintoxicating liquor. The decision that the officer was not liablefor the seizure under those circumstances does not support anindependent right to search the place of arrest. InKneeland v.Connally, 70 Ga. 424, 425, the other case cited, the courtactually held that the trial court had no jurisdiction of the case.It went on to say that

"just as a warrant to arrest a man charged with murder wouldcarry with it authority to seize the bloody knife or smoking pistolwhich killed,"

the instruments of the crime of gaming could be seized inarresting a proprietor of a gambling house. But once again noauthority to search for these instruments was suggested.