U.S. Supreme Court

Warden v. Hayden,387U.S. 294 (1967)Warden v. Hayden

No. 480

Argued April 12, 1967

Decided May 29, 1967

387U.S. 294

CERTIORARI TO THE UNITED STATESCOURT OF APPEALS

FOR THE FOURTHCIRCUIT

Syllabus

The police were informed that an armed robbery had occurred andthat the suspect, respondent, had thereafter entered a certainhouse. Minutes later, they arrived there and were told byrespondent's wife that she had no objection to their searching thehouse. Certain officers arrested respondent in an upstairs bedroomwhen it became clear he was the only man in the house. Otherssimultaneously searched the first floor and cellar. One foundweapons in a flush tank; another, looking "for a man or the money,"found in a washing machine clothing of the type the suspect wassaid to have worn. Ammunition was also found. These items wereadmitted into evidence without objection at respondent's trial,which resulted in his conviction. After unsuccessful state courtproceedings, respondent sought and was denied habeas corpus reliefin the District Court. The Court of Appeals found the searchlawful, but reversed on the ground that the clothing seized duringthe search was immune from seizure, being of "evidential valueonly."

Held:

1. "The exigencies of the situation," in which the officers werein pursuit of a suspected armed felon in the house which he hadentered only minutes before they arrived, permitted theirwarrantless entry and search.McDonald v. United States,335 U. S. 451,335 U. S. 456.Pp.387 U. S.298-300.

2. The distinction prohibiting seizure of items of onlyevidential value and allowing seizure of instrumentalities, fruits,or contraband is no longer accepted as being required by the FourthAmendment. Pp.387 U. S.300-310.

(a) There is no rational distinction between a search for "mereevidence" and one for an "instrumentality" in terms of the privacywhich is safeguarded by the Fourth Amendment; nor does the languageof the Amendment itself make such a distinction. Pp.387 U. S.301-302.

(b) The clothing items involved here are not "testimonial" or"communicative," and their introduction did not compel respondentto become a witness against himself in violation of the FifthAmendment.Schmerber v. California,384 U.S. 757. Pp.387 U. S.302-303.

Page 387 U. S. 295

(c) The premise that property interests control government'ssearch and seizure rights, on whichGouled v. UnitedStates,255 U. S. 298,partly rested, is no longer controlling as the Fourth Amendment'sprincipal object is the protection of privacy, not property. Pp.387 U. S.303-306.

(d) The related premise ofGouled that government maynot seize evidence for the purpose of proving crime has also beendiscredited. The Fourth Amendment does not bar a search for thatpurpose provided that there is probable cause, as there was here,for the belief that the evidence sought will aid in a particularapprehension or conviction. Pp.387 U. S.306-307.

(e) The remedy of suppression, with its limited functionalconsequence, has made possible the rejection of both the relatedGouled premises. P.387 U. S.307.

(f) Just as the suppression of evidence does not require thereturn of such items as contraband, the introduction of "mereevidence" does not entitle the State to its retention if it isbeing wrongfully withheld. Pp.387 U. S.307-308.

(g) The numerous and confusing exceptions to the "mere evidence"limitation make it questionable whether it affords any meaningfulprotection. P.387 U. S.309.

363 F.2d 647, reversed.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

We review in this case the validity of the proposition thatthere is under the Fourth Amendment a "distinction

Page 387 U. S. 296

between merely evidentiary materials, on the one hand, which maynot be seized either under the authority of a search warrant orduring the course of a search incident to arrest, and on the otherhand, those objects which may validly be seized including theinstrumentalities and means by which a crime is committed, thefruits of crime such as stolen property, weapons by which escape ofthe person arrested might be effected, and property the possessionof which is a crime." [Footnote1]

A Maryland court sitting without a jury convicted respondent ofarmed robbery. Items of his clothing, a cap, jacket, and trousers,among other things, were seized during a search of his home, andwere admitted in evidence without objection. After unsuccessfulstate court proceedings, he sought and was denied federal habeascorpus relief in the District Court for Maryland. [Footnote 2] A divided panel of the Court ofAppeals for the Fourth Circuit reversed. 363 F.2d 647. The Court ofAppeals believed thatHarris v. United States,331 U. S. 145,331 U. S. 154,sustained the validity of the search, but held that respondent wascorrect in his contention that the clothing seized was improperlyadmitted in evidence because the items had "evidential value only"and therefore were not

Page 387 U. S. 297

lawfully subject to seizure. We granted certiorari. 385 U.S.926. We reverse. [Footnote3]

IAbout 8 a.m. on March 17, 1962, an armed robber entered thebusiness premises of the Diamond Cab Company in Baltimore,Maryland. He took some $363 and ran. Two cab drivers in thevicinity, attracted by shouts of "Holdup," followed the man to 2111Cocoa Lane. One driver notified the company dispatcher by radiothat the man was a Negro about 5'8" tall, wearing a light cap anddark jacket, and that he had entered the house on Cocoa Lane. Thedispatcher relayed the information to police who were proceeding tothe scene of the robbery. Within minutes, police arrived at thehouse in a number of patrol cars. An officer knocked and announcedtheir presence. Mrs. Hayden answered, and the officers told herthey believed that a robber had entered the house, and asked tosearch the house. She offered no objection. [Footnote 4]

Page 387 U. S. 298

The officers spread out through the first and second floors andthe cellar in search of the robber. Hayden was found in an upstairsbedroom feigning sleep. He was arrested when the officers on thefirst floor and in the cellar reported that no other man was in thehouse. Meanwhile, an officer was attracted to an adjoining bathroomby the noise of running water, and discovered a shotgun and apistol in a flush tank; another officer who, according to theDistrict Court, "was searching the cellar for a man or the money"found in a washing machine a jacket and trousers of the type thefleeing man was said to have worn. A clip of ammunition for thepistol and a cap were found under the mattress of Hayden's bed, andammunition for the shotgun was found in a bureau drawer in Hayden'sroom. All these items of evidence were introduced againstrespondent at his trial.

IIWe agree with the Court of Appeals that neither the entrywithout warrant to search for the robber, nor the search for himwithout warrant was invalid. Under the circumstances of this case,"the exigencies of the situation made that course imperative."McDonald v. United States,335 U.S. 451,335 U. S. 456.The police were informed that an armed robbery had taken place, andthat the suspect had entered 2111 Cocoa Lane less than five minutesbefore they reached it. They acted reasonably when they entered thehouse and began to search for a man of the description they hadbeen given and for weapons which he had used in the robbery ormight use against them. The Fourth Amendment does not requirepolice officers to delay in the course of an investigation

Page 387 U. S. 299

if to do so would gravely endanger their lives or the lives ofothers. Speed here was essential, and only a thorough search of thehouse for persons and weapons could have insured that Hayden wasthe only man present and that the police had control of all weaponswhich could be used against them or to effect an escape.

We do not rely uponHarris v. United States, supra, insustaining the validity of the search. The principal issue inHarris was whether the search there could properly beregarded as incident to the lawful arrest, since Harris was incustody before the search was made and the evidence seized. Here,the seizures occurred prior to or immediately contemporaneous withHayden's arrest, as part of an effort to find a suspected felon,armed, within the house into which he had run only minutes beforethe police arrived. The permissible scope of search must,therefore, at the least, be as broad as may reasonably be necessaryto prevent the dangers that the suspect at large in the house mayresist or escape.

It is argued that, while the weapons, ammunition, and cap mayhave been seized in the course of a search for weapons, the officerwho seized the clothing was searching neither for the suspect norfor weapons when he looked into the washing machine in which hefound the clothing. But even if we assume, although we do notdecide, that the exigent circumstances in this case made lawful asearch without warrant only for the suspect or his weapons, itcannot be said on this record that the officer who found theclothes in the washing machine was not searching for weapons. Hetestified that he was searching for the man or the money, but hisfailure to state explicitly that he was searching for weapons, inthe absence of a specific question to that effect, can hardly beaccorded controlling weight. He knew that the robber was armed andhe did not know that some

Page 387 U. S. 300

weapons had been found at the time he opened the machine.[Footnote 5] In thesecircumstances, the inference that he was, in fact, also looking forweapons is fully justified.

IIIWe come, then, to the question whether, even though the searchwas lawful, the Court of Appeals was correct in holding that theseizure and introduction of the items of clothing violated theFourth Amendment because they are "mere evidence." The distinctionmade by some of our cases between seizure of items of evidentialvalue only and seizure of instrumentalities, fruits, or contrabandhas been criticized by courts [Footnote 6] and commentators. [Footnote 7] The Court of Appeals, however, felt "obligatedto adhere to it." 363 F.2d at 655. We today reject the distinctionas based on premises no longer

Page 387 U. S. 301

accepted as rules governing the application of the FourthAmendment. [Footnote 8]

We have examined on many occasions the history and purposes ofthe Amendment. [Footnote 9] Itwas a reaction to the evils of the use of the general warrant inEngland and the writs of assistance in the Colonies, and wasintended to protect against invasions of "the sanctity of a man'shome and the privacies of life,"Boyd v. United States,116 U. S. 616,116 U. S. 630,from searches under indiscriminate, general authority. Protectionof these interests was assured by prohibiting all "unreasonable"searches and seizures, and by requiring the use of warrants, whichparticularly describe "the place to be searched, and the persons orthings to be seized," thereby interposing "a magistrate between thecitizen and the police,"McDonald v. United States, supra,335 U.S. at335 U. S.455.

Nothing in the language of the Fourth Amendment supports thedistinction between "mere evidence" and instrumentalities, fruitsof crime, or contraband. On its face, the provision assures the"right of the people to be secure in their persons, houses, papers,and effects . . . ," without regard to the use to which any ofthese things are applied. This "right of the people" is certainlyunrelated to the "mere evidence" limitation. Privacy is disturbedno more by a search directed to a purely evidentiary object than itis by a search directed to an instrumentality,

Page 387 U. S. 302

fruit, or contraband. A magistrate can intervene in bothsituations, and the requirements of probable cause and specificitycan be preserved intact. Moreover, nothing in the nature ofproperty seized as evidence renders it more private than propertyseized, for example, as an instrumentality; quite the opposite maybe true. Indeed, the distinction is wholly irrational, since,depending on the circumstances, the same "papers and effects" maybe "mere evidence" in one case and "instrumentality" in another.See Comment, 20 U.Chi.L.Rev. 319, 320-322 (1953).

InGouled v. United States,255 U.S. 298,255 U. S. 309,the Court said that search warrants

"may not be used as a means of gaining access to a man's houseor office and papers solely for the purpose of making search tosecure evidence to be used against him in a criminal or penalproceeding. . . ."

The Court derived fromBoyd v. United States, supra,the proposition that warrants

"may be resorted to only when a primary right to such search andseizure may be found in the interest which the public or thecomplainant may have in the property to be seized, or in the rightto the possession of it, or when a valid exercise of the policepower renders possession of the property by the accused unlawfuland provides that it may be taken,"

255 U.S. at255 U. S. 309;that is, when the property is an instrumentality or fruit of crime,or contraband. Since it was "impossible to say, on the record . . .that the Government had any interest" in the papers involved "otherthan as evidence against the accused . . . ," "to permit them to beused in evidence would be, in effect, as ruled in theBoydCase, to compel the defendant to become a witness against himself."Id. at255 U. S.311.

The items of clothing involved in this case are not"testimonial" or "communicative" in nature, and their introductiontherefore did not compel respondent to become

Page 387 U. S. 303

a witness against himself in violation of the Fifth Amendment.Schmerber v. California,384 U. S. 757.This case thus does not require that we consider whether there areitems of evidential value whose very nature precludes them frombeing the object of a reasonable search and seizure.

The Fourth Amendment ruling inGouled was based uponthe dual, related premises that historically the right to searchfor and seize property depended upon the assertion by theGovernment of a valid claim of superior interest, and that it wasnot enough that the purpose of the search and seizure was to obtainevidence to use in apprehending and convicting criminals. Thecommon law of search and seizure afterEntick v.Carrington, 19 How.St.Tr. 1029, reflected Lord Camden's view,derived no doubt from the political thought of his time, that the"great end, for which men entered into society, was to secure theirproperty."Id. at 1066. Warrants were

"allowed only where the primary right to such a search andseizure is in the interest which the public or complainant may havein the property seized."

Lasson, The History and Development of the Fourth Amendment tothe United States Constitution 133-134. Thus, stolen property --the fruits of crime -- was always subject to seizure. And the powerto search for stolen property was gradually extended to cover "anyproperty which the private citizen was not permitted to possess,"which included instrumentalities of crime (because of the earlynotion that items used in crime were forfeited to the State) andcontraband. Kaplan, Search and Seizure: A No-Man's Land in theCriminal Law, 49 Calif.L.Rev. 474, 475. No separate governmentalinterest in seizing evidence to apprehend and convict criminals wasrecognized; it was required that some property interest beasserted. The remedial structure also reflected these dualpremises. Trespass, replevin, and the other means of

Page 387 U. S. 304

redress for persons aggrieved by searches and seizures, dependedupon proof of a superior property interest. And since a lawfulseizure presupposed a superior claim, it was inconceivable that aperson could recover property lawfully seized. As Lord Camdenpointed out inEntick v. Carrington, supra, at 1066, ageneral warrant enabled

"the party's own property [to be] seized before and withoutconviction, and he has no power to reclaim his goods, even afterhis innocence is cleared by acquittal."

The premise that property interests control the right of theGovernment to search and seize has been discredited. Searches andseizures may be "unreasonable" within the Fourth Amendment eventhough the Government asserts a superior property interest atcommon law. We have recognized that the principal object of theFourth Amendment is the protection of privacy, rather thanproperty, and have increasingly discarded fictional and proceduralbarriers rested on property concepts.See Jones v. UnitedStates,362 U. S. 257,362 U. S. 266;Silverman v. United States,365 U.S. 505,365 U. S. 511.This shift in emphasis from property to privacy has come aboutthrough a subtle interplay of substantive and procedural reform.The remedial structure at the time even ofWeeks v. UnitedStates,232 U. S. 383, wasarguably explainable in property terms. The Court held inWeeks that a defendant could petition before trial for thereturn of his illegally seized property, a proposition notnecessarily inconsistent withAdams v. New York,192 U. S. 585,which held in effect that the property issues involved in searchand seizure are collateral to a criminal proceeding. [Footnote 10] The remedial structurefinally escaped the bounds of common law property limitations inSilverthorne

Page 387 U. S. 305

Lumber Co. v. United States,251 U.S. 385, andGouled v. United States, supra,when it became established that suppression might be sought duringa criminal trial, and under circumstances which would not sustainan action in trespass or replevin. Recognition that the role of theFourth Amendment was to protect against invasions of privacydemanded a remedy to condemn the seizure inSilverthorne,although no possible common law claim existed for the return of thecopies made by the Government of the papers it had seized. Theremedy of suppression, necessarily involving only the limited,functional consequence of excluding the evidence from trial,satisfied that demand.

The development of search and seizure law sinceSilverthorne andGouled is replete with examplesof the transformation in substantive law brought about through theinteraction of the felt need to protect privacy from unreasonableinvasions and the flexibility in rulemaking made possible by theremedy of exclusion. We have held, for example, that intangible aswell as tangible evidence may be suppressed,Wong Sun v. UnitedStates,371 U. S. 471,371 U. S.485-486, and that an actual trespass under localproperty law is unnecessary to support a remediable violation ofthe Fourth Amendment,Silverman v. United States, supra.In determining whether someone is a "person aggrieved by anunlawful search and seizure," we have refused

"to import into the law . . . subtle distinctions, developed andrefined by the common law in evolving the body of private propertylaw which, more than almost any other branch of law, has beenshaped by distinctions whose validity is largely historical."

Jones v. United States, supra, 362 U.S. at362 U. S. 266.And, with particular relevance here, we have given recognition tothe interest in privacy despite the complete absence of a propertyclaim by suppressing the very items which, at

Page 387 U. S. 306

common law, could be seized with impunity: stolen goods,Henry v. United States,361 U. S. 98;instrumentalities,Beck v. Ohio,379 U. S.89;McDonald v.United States, supra, andcontraband,Trupiano v. United States,334 U.S. 699;Aguilar v. Texas,378 U.S. 108.

The premise inGouled that government may not seizeevidence simply for the purpose of proving crime has likewise beendiscredited. The requirement that the Government assert in additionsome property interest in material it seizes has long been afiction, [Footnote 11]obscuring the reality that government has an interest in solvingcrime.Schmerber settled the proposition that it isreasonable, within the terms of the Fourth Amendment, to conductotherwise permissible searches for the purpose of obtainingevidence which would aid in apprehending and convicting criminals.The requirements of the Fourth Amendment can secure the sameprotection of privacy

Page 387 U. S. 307

whether the search is for "mere evidence" or for fruits,instrumentalities or contraband. There must, of course, be a nexus-- automatically provided in the case of fruits, instrumentalitiesor contraband -- between the item to be seized and criminalbehavior. Thus, in the case of "mere evidence," probable cause mustbe examined in terms of cause to believe that the evidence soughtwill aid in a particular apprehension or conviction. In so doing,consideration of police purposes will be required.Cf. Kremenv. United States,353 U. S. 346. Butno such problem is presented in this case. The clothes found in thewashing machine matched the description of those worn by the robberand the police therefore could reasonably believe that the itemswould aid in the identification of the culprit.

The remedy of suppression, moreover, which made possibleprotection of privacy from unreasonable searches without regard toproof of a superior property interest, likewise provides theprocedural device necessary for allowing otherwise permissiblesearches and seizures conducted solely to obtain evidence of crime.For just as the suppression of evidence does not entail adeclaration of superior property interest in the person aggrieved,thereby enabling him to suppress evidence unlawfully seized despitehis inability to demonstrate such an interest (as with fruits,instrumentalities, contraband), the refusal to suppress evidencecarries no declaration of superior property interest in the State,and should thereby enable the State to introduce evidence lawfullyseized despite its inability to demonstrate such an interest. And,unlike the situation at common law, the owner of property would notbe rendered remediless if "mere evidence" could lawfully be seizedto prove crime. For just as the suppression of evidence does not,in itself, necessarily entitle the aggrieved person to its return(as, for example, contraband), the introduction of "mere evidence"does not, in

Page 387 U. S. 308

itself, entitle the State to its retention. Where publicofficials "unlawfully seize orhold a citizen's realty orchattels, recoverable by appropriate action at law or in equity . .. ," the true owner may "bring his possessory action to reclaimthat which is wrongfully withheld."Land v. Dollar,330 U. S. 731,330 U. S. 738.(Emphasis added.)See Burdeau v. McDowell,256 U.S. 465,256 U. S.474.

The survival of theGouled distinction is attributablemore to chance than considered judgment. Legislation has helpedperpetuate it. Thus, Congress has never authorized the issuance ofsearch warrants for the seizure of mere evidence of crime.SeeDavis v. United States,328 U. S. 582,328 U. S. 606(dissenting opinion of Mr. Justice Frankfurter). Even in theEspionage Act of 1917, where Congress for the first time grantedgeneral authority for the issuance of search warrants, theauthority was limited to fruits of crime, instrumentalities, andcertain contraband. 40 Stat. 228.Gouled concluded,needlessly, it appears, that the Constitution virtually limitedsearches and seizures to these categories. [Footnote 12] AfterGouled, pressure

Page 387 U. S. 309

to test this conclusion was slow to mount. Rule 41(b) of theFederal Rules of Criminal Procedure incorporated theGouled categories as limitations on federal authorities toissue warrants, andMapp v. Ohio,367 U.S. 643, only recently made the "mere evidence" rule aproblem in the state courts. Pressure against the rule in thefederal courts has taken the form, rather, of broadening thecategories of evidence subject to seizure, thereby creatingconsiderable confusion in the law.See, e.g., Note, 54Geo.L.J. 593, 607-621 (1966).

The rationale most frequently suggested for the rule preventingthe seizure of evidence is that "limitations upon the fruit to begathered tend to limit the quest itself."United States v.Poller, 43 F.2d 911, 914 (C.A.2d Cir.1930). But privacy

"would be just as well served by a restriction on search to theeven-numbered days of the month. . . . And it would have the extraadvantage of avoiding hair-splitting questions. . . ."

Kaplan,op. cit. at 479. The "mere evidence" limitationhas spawned exceptions so numerous and confusion so great, in fact,that it is questionable whether it affords meaningful protection.But if its rejection does enlarge the area of permissible searches,the intrusions are nevertheless made after fulfilling the probablecause and particularity requirements of the Fourth Amendment andafter the intervention of "a neutral and detached magistrate. . .."

Page 387 U. S. 310

Johnson v. United States,333 U. S.10,333 U. S. 14.The Fourth Amendment allows intrusions upon privacy under thesecircumstances, and there is no viable reason to distinguishintrusions to secure "mere evidence" from intrusions to securefruits, instrumentalities, or contraband.

The judgment of the Court of Appeals is

Reversed.

MR. JUSTICE BLACK concurs in the result.

[Footnote 1]

Harris v. United States,331 U.S. 145,331 U. S. 154;see also Gouled v. United States,255 U.S. 298;United States v. Lefkowitz,285 U. S. 452,285 U. S.465-466;United States v. Rabinowitz,339 U. S. 56,339 U. S. 64, n.6;Abel v. United States,362 U.S. 217,362 U. S.234-235.

[Footnote 2]

Hayden did not appeal from his conviction. He first soughtrelief by an application under the Maryland Post ConvictionProcedure Act which was denied without hearing. The Maryland Courtof Appeals reversed and remanded for a hearing. 233 Md. 613, 195A.2d 692. The trial court denied relief after hearing, concluding"that the search of his home and the seizure of the articles inquestion were proper." His application for federal habeas corpusrelief resulted, after hearing in the District Court, in the sameconclusion.

[Footnote 3]

The State claims that, since Hayden failed to raise the searchand seizure question at trial, he deliberately bypassed stateremedies and should be denied an opportunity to assert his claim infederal court.See Henry v. Mississippi,379 U.S. 443;Fay v. Noia,372 U.S. 391. Whether or not the Maryland Court of Appealsactually intended, when it reversed the state trial court's denialof post-conviction relief, that Hayden be afforded a hearing on themerits of his claim, it is clear that the trial court so understoodthe order of the Court of Appeals. A hearing was held in the statecourts, and the claim denied on the merits. In this circumstance,the Fourth Circuit was correct in rejecting the State's deliberatebypassing claim. The deliberate bypass rule is applicable only "toan applicant who has deliberately bypassed the orderly procedure ofthe state courtsand in so doing, has forfeited his state courtremedies."Fay v. Noia, supra, 372 U.S. at372 U. S. 438.(Emphasis added.)But see Nelson v. California, 346 F.2d73, 82 (C.A. 9th Cir.1965).

[Footnote 4]

The state post-conviction court found that Mrs. Hayden "gave thepoliceman permission to enter the home." The federal habeas corpuscourt stated it "would be justified in accepting the findings ofhistorical fact made by Judge Sodaro on that issue . . . ," butconcluded that resolution of the issue would be unnecessary,because the officers were "justified in entering and searching thehouse for the felon, for his weapons and for the fruits of therobbery."

[Footnote 5]

The officer was asked in the District Court whether he found themoney. He answered that he did not, and stated: "By the time I hadgotten down into the basement, I heard someone say upstairs,There's a man up here.'" He was asked: "What did you do then?"and answered: "By this time I had already discovered some clothingwhich fit the description of the clothing worn by the subject thatwe were looking for. . . ." It is clear from the record and fromthe findings that the weapons were found after or at the same timethe police found Hayden.

[Footnote 6]

People v. Thaver, 63 Cal. 2d635, 408 P.2d 108,cert. denied, 384 U.S. 908;State v. Bisaccia, 45 N.J. 504,213A.2d 185.Compare United States v. Poller, 43 F.2d911, 914 (C.A.2d Cir.1930).

[Footnote 7]

E.g., Chafee, The Progress of the Law, 1919-1922, 35Harv.L.Rev. 673 (1922); Kamisar, The Wiretapping-EavesdroppingProblem: A Professor's View, 44 Minn.L.Rev. 891, 914-918 (1960);Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49Calif.L.Rev. 474, 478 (1961); Comment, 45 N.C.L.Rev. 512 (1967);Comment, 66 Col.L.Rev. 355 (1966); Comment, 20 U.Chi.L.Rev. 319(1953); Comment, 31 Yale L.J. 518 (1922).Compare, e.g.,Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361(1921); Note, 54 Geo.L.J. 593 (1966).

[Footnote 8]

This Court has approved the seizure and introduction of itemshaving only evidential value without, however, considering thevalidity of the distinction rejected today.See Schmerber v.California,384 U. S. 757;Cooper v. California,386 U. S. 58.

[Footnote 9]

E.g., Stanford v. Texas,379 U.S. 476,379 U. S.481-485;Marcus v. Search Warrant,367 U.S. 717,367 U. S.724-729;Frank v. Maryland,359 U.S. 360,359 U. S.363-365.See generally Lasson, The History andDevelopment of the Fourth Amendment to the United StatesConstitution (1937); Landynski, Search and Seizure and the SupremeCourt (1966).

[Footnote 10]

BothWeeks andAdams were written by JusticeDay, and joined by several of the same Justices, including JusticeHolmes.

[Footnote 11]

At common law, the Government did assert a superior propertyinterest when it searched lawfully for stolen property, since theprocedure then followed made it necessary that the true owner swearthat his goods had been taken. But no such procedure need befollowed today; the Government may demonstrate probable cause andlawfully search for stolen property even though the true owner isunknown or unavailable to request and authorize the Government toassert his interest. As to instrumentalities, the Court inGouled allowed their seizure not because the Governmenthad some property interest in them (under the ancient, fictitiousforfeiture theory), but because they could be used to perpetratefurther crime. 255 U.S. at255 U. S. 309. The same holds true, of course, for "mereevidence"; the prevention of crime is served at least as much byallowing the Government to identify and capture the criminal as itis by allowing the seizure of his instrumentalities. Finally,contraband is indeed property in which the Government holds asuperior interest, but only because the Government decides to vestsuch an interest in itself. And while there may be limits to whatmay be declared contraband, the concept is hardly more than a formthrough which the Government seeks to prevent and deter crime.

[Footnote 12]

Gouled was decided on certified questions. The onlyquestion which referred to the Espionage Act of 1917 stated:

"Are papers of . . . evidential value . . when taken undersearch warrants issued pursuant to Act of June 15, 1917, from thehouse or office of the person so suspected -- seized and taken inviolation of the 4th amendment?"

Gouled v. United States, No. 250, Oct. Term, 1920,Certificate, p. 4. Thus, the form in which the case was certifiedmade it difficult if not impossible,

"to limit the decision to the sensible proposition of statutoryconstruction, that Congress had not as yet authorized the seizureof purely evidentiary material."

Chafee,op. cit. supra at 699. The Government assumedthe validity of petitioner's argument thatEntick v.Carrington, Boyd v. United States, and other authoritiesestablished the constitutional illegality of seizures of privatepapers for use as evidence.Gouled v. United States,supra, Brief for the United States, p. 50. It argued,complaining of the absence of a record, that the papers introducedin evidence were instrumentalities of crime. The Court ruled thatthe record before it revealed no government interest in the papersother than as evidence against the accused. 255 U.S. at255 U. S.311.

Significantly,Entick v. Carrington itself has not beenread by the English courts as making unlawful the seizure of allpapers for use as evidence.See Dillon v. O'Brien, 20L.R.Ir. 300;Elias v. Pasmore, [1934] 2 K.B. 164. AlthoughDillon, decided in 1887, involved instrumentalities, thecourt did not rely on this fact, but rather on "the interest whichthe State has in a person guilty (or reasonably believed to beguilty) of a crime being brought to justice. . . ." 20 L.R.Ir. at317.

MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE joins,concurring.

While I agree that the Fourth Amendment should not be held torequire exclusion from evidence of the clothing as well as theweapons and ammunition found by the officers during the search, Icannot join in the majority's broad -- and, in my judgment, totallyunnecessary -- repudiation of the so-called "mere evidence"rule.

Our Constitution envisions that searches will ordinarily followprocurement by police of a valid search warrant. Such warrants areto issue only on probable cause, and must describe withparticularity the persons or things to be seized. There areexceptions to this rule. Searches may be made incident to a lawfularrest, and -- as today's decision indicates -- in the course of"hot pursuit." But searches under each of these exceptions have,until today, been confined to those essential to fulfill thepurpose of the exception: that is, we have refused to permit use ofarticles the seizure of which could not be strictly tied to andjustified by the exigencies which excused the warrantless search.The use in evidence of weapons seized in a "hot pursuit" search orsearch incident to arrest satisfies this criterion because of theneed to protect the arresting officers from weapons to which thesuspect might resort. The search for and seizure of fruits are, ofcourse, justifiable on independent grounds: the fruits

Page 387 U. S. 311

are an object of the pursuit or arrest of the suspect, andshould be restored to their true owner. The seizure of contrabandhas been justified on the ground that the suspect has not even abare possessory right to contraband.See, e.g., Boyd v. UnitedStates,116 U. S. 616,116 U. S.623-624 (1886);United States v. Kirschenblatt,16 F.2d 202, 203 (C.A.2d Cir.1926) (L. Hand, J.).

Similarly, we have forbidden the use of articles seized in sucha search unless obtained from the person of the suspect or from theimmediate vicinity. Since a warrantless search is justified only asincident to an arrest or "hot pursuit," this Court and others haveheld that its scope does not include permission to search theentire building in which the arrest occurs, or to rummage throughlocked drawers and closets, or to search at another time or place.James v. Louisiana,382 U. S. 36(1965);Stoner v. California,376 U.S. 483,376 U. S.486-487 (1964);Preston v. United States,376 U. S. 364,376 U. S. 367(1964);United States v. Lefkowitz,285 U.S. 452 (1932);Go-Bart Co. v. United States,282 U. S. 344,282 U. S. 358(1931);Agnello v. United States,269 U. S.20,269 U. S. 331(1925);United States v. Kirschenblatt, supra. [Footnote 2/1]

In the present case, the articles of clothing admitted intoevidence are not within any of the traditional categories whichdescribe what materials may be seized, either with or without awarrant. The restrictiveness of these categories has been subjectedto telling criticism, [Footnote2/2] and

Page 387 U. S. 312

although I believe that we should approach expansion of thesecategories with the diffidence which their imposing provenancecommands, I agree that the use of identifying clothing worn in thecommission of a crime and seized during "hot pursuit" is within thespirit and intendment of the "hot pursuit" exception to the searchwarrant requirement. That is because the clothing is pertinent toidentification of the person hotly pursued as being, in fact, theperson whose pursuit was justified by connection with the crime. Iwould frankly place the ruling on that basis. I would not drive anenormous and dangerous hole in the Fourth Amendment to accommodatea specific and, I think, reasonable exception.

As my Brother DOUGLAS notes,post, opposition togeneral searches is a fundamental of our heritage and of thehistory of Anglo-Saxon legal principles. Such searches, pursuant to"writs of assistance," were one of the matters over which theAmerican Revolution was fought. The very purpose of the FourthAmendment was to outlaw such searches, which the Court todaysanctions. I fear that, in gratuitously striking down the "mereevidence" rule, which distinguished members of this Court haveacknowledged as essential to enforce the Fourth Amendment'sprohibition against general searches, the Court today needlesslydestroys, root and branch, a basic part of liberty's heritage.

[Footnote 2/1]

It is true that this Court has not always been as vigilant as itshould to enforce these traditional and extremely importantrestrictions upon the scope of such searches.See United Statesv. Rabinowitz,339 U. S. 56,339 U. S. 68-86(1950) (Frankfurter, J., dissenting);Harris v. UnitedStates,331 U. S. 145,331 U. S.155-198 (1947) (dissenting opinions).

[Footnote 2/2]

See, e.g., People v. Thayer, 63 Cal. 2d635, 408 P.2d 108 (1965) (Traynor, C.J.),cert.denied, 384 U.S. 908 (1966); Kaplan, Search and Seizure: ANo-Man's Land in the Criminal Law, 49 Calif.L.Rev. 474, 478(1961).

MR. JUSTICE DOUGLAS, dissenting.

We start with the Fourth Amendment, which provides:

"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. "

Page 387 U. S. 313

This constitutional guarantee, now as applicable to the States(Mapp v. Ohio,367 U. S. 643) asto the Federal Government, has been thought, until today, to havetwo faces of privacy:

(1) One creates a zone of privacy that may not be invaded by thepolice through raids, by the legislators through laws, or bymagistrates through the issuance of warrants.

(2) A second creates a zone of privacy that may be invadedeither by the police in hot pursuit or by a search incident toarrest or by a warrant issued by a magistrate on a showing ofprobable cause.

Thefirst has been recognized from early days inAnglo-American law. Search warrants, for seizure of stolenproperty, though having an ancient lineage, were criticized even byCoke. Institutes Bk. 4, pp. 176-177.

As stated by Lord Camden inEntick v. Carrington, 19How.St.Tr. 1029, 1067, even warrants authorizing seizure of stolengoods were looked upon with disfavor but "crept into the law byimperceptible practice." By the time of Charles II, they had bursttheir original bounds and were used by the Star Chamber to findevidence among the files and papers of political suspects. Thus, inthe trial of Algernon Sidney in 1683 for treason, "papers, whichwere said to be found in my [Sidney's] house, were produced asanother witness" (9 How.St.Tr. 818, 901) and the defendant wasexecuted.Id. at 906-907. From this use of papers asevidence, there grew up the practice of the Star Chamber empoweringa person

"to search in all places, where books were printing, in order tosee if the printer had a licence, and if upon such search he foundany books which he suspected to be libelous against the church orstate, he was to seize them, and carry them before the propermagistrate."

Entick v. Carrington, supra, at 1069. Thus, the generalwarrant became a powerful instrument

Page 387 U. S. 314

in proceedings for seditious libel against printers and authors.Ibid. John Wilkes led the campaign against the generalwarrant.Boyd v. United States,116 U.S. 616,116 U. S. 625.Wilkes won (Entick v. Carrington, supra, decided in 1765),and Lord Camden's opinion not only outlawed the general warrant(id. at 1072), but went on to condemn searches "forevidence" with or without a general warrant:

"There is no process against papers in civil causes. It has beenoften tried, but never prevailed. Nay, where the adversary has, byforce or fraud, got possession of your own proper evidence, thereis no way to get it back but by action."

"In the criminal law, such a proceeding was never heard of, andyet there are some crimes, such for instance, as murder, rape,robbery, and housebreaking, to say nothing of forgery and perjury,that are more atrocious than libelling. But our law has provided nopaper search in these cases to help forward the conviction."

"Whether this procedeth from the gentleness of the law towardscriminals, or from a consideration that such a power would be morepernicious to the innocent than useful to the public, I will notsay."

"It is very certain that the law obligeth no man to accusehimself; because the necessary means of compelling self-accusation,falling upon the innocent as well as the guilty, would be bothcruel and unjust, and it should seem, that search for evidence isdisallowed upon the same principle. There too the innocent would beconfounded with the guilty."

Id. at 1073.

Thus, Lord Camden decided two things: (1) that searches forevidence violated the principle against self-incrimination; (2)that general warrants were void.

Page 387 U. S. 315

This decision, in the very forefront when the Fourth Amendmentwas adopted, underlines the construction that it covers somethingother than the form of the warrant [Footnote 3/1] and creates a zone of privacy which nogovernment official may enter.

The complaint of Bostonians, while including the generalwarrants, went to the point of police invasions of personalsanctuaries:

"'A List of Infringements and Violations of Rights' drawn up bythe Boston town meeting late in 1772 alluded to a number ofpersonal rights which had allegedly been violated by agents of thecrown. The list included complaints against the writs of assistancewhich had been employed by royal officers in their searches forcontraband. The Bostonians complained that"

"our houses and even our bed chambers are exposed to beransacked, our boxes, chests, and trunks broke open, ravaged andplundered by wretches, whom no prudent man would venture to employeven as menial servants."

Rutland, The Birth of the Bill of Rights 25 (1955).

The debates concerning the Bill of Rights did not focus on theprecise point with which we here deal. There was much talk aboutthe general warrants and the fear of them. But there was also somereference to the sanctity of one's home and his personalbelongings, even

Page 387 U. S. 316

including the clothes he wore. Thus, in Virginia, Patrick Henrysaid:

"The officers of Congress may come upon you now, fortified withall the terrors of paramount federal authority. Excisemen may comein multitudes, for the limitation of their numbers no man knows.They may, unless the general government be restrained by a bill ofrights or some similar restriction, go into your cellars and rooms,and search, ransack, and measure, every thing you eat, drink, andwear. They ought to be restrained within proper bounds."

3 Elliot's Debates 448-449.

This indicates that the Fourth Amendment has the dual aspectthat I have mentioned. Certainly the debates nowhere suggest thatit was concerned only with regulating the form of warrants.

This is borne out by what happened in the Congress. In theHouse, the original draft read as follows:

"The right of the people to be secured in their persons, houses,papers, and effects, shall not be violated by warrants issuingwithout probable cause, supported by oath or affirmation, and notparticularly describing the place to be searched and the persons orthings to be seized."

1 Annals of Cong. 754.

That was amended to read "The right of the people to be securein their persons, houses, papers, and effects, against unreasonableseizures and searches," etc.Ibid. Mr. Benson, Chairman ofa Committee of Three to arrange the amendments, objected to thewords "by warrants issuing" and proposed to alter the amendment soas to read "and no warrant shall issue."Ibid. ButBenson's amendment was defeated.Ibid. And if the

Page 387 U. S. 317

story had ended there, it would be clear that the FourthAmendment touched only the form of the warrants and the manner oftheir issuance. But when the Benson Committee later reported theFourth Amendment to the House, it was in the form he had earlierproposed, and was then accepted. 1 Annals of Cong. 779. The Senateagreed. Senate Journal August 25, 1789.

Thus, it is clear that the Fourth Amendment has two faces ofprivacy, a conclusion emphasized by Lasson, The History andDevelopment of the Fourth Amendment to the United StatesConstitution 103 (1937):

"As reported by the Committee of Eleven and corrected by Gerry,the Amendment was a one-barrelled affair, directed apparently onlyto the essentials of a valid warrant. The general principle offreedom from unreasonable search and seizure seems to have beenstated only by way of premise, and the positive inhibition uponaction by the Federal Government limited consequently to theissuance of warrants without probable cause, etc. That Bensoninterpreted it in this light is shown by his argument that,although the clause was good as far as it went, it was notsufficient, and by the change which he advocated to obviate thisobjection. The provision as he proposed it contained two clauses.The general right of security from unreasonable search and seizurewas given a sanction of its own, and the amendment thusintentionally given a broader scope. That the prohibition againstunreasonable searches' was intended, accordingly, to coversomething other than the form of the warrant is a question nolonger left to implication to be derived from the phraseology ofthe Amendment. "

Page 387 U. S. 318

Lord Camden's two-fold classification of zones of privacy wassaid by Cooley to be reflected in the Fourth Amendment:

"The warrant is not allowed for the purpose of obtainingevidence of an intended crime, but only after lawful evidence of anoffence actually committed. Nor even then is it allowable to invadeone's privacy for the sole purpose of obtaining evidence againsthim, except in a few special cases where that which is the subjectof the crime is supposed to be concealed and the public or thecomplainant has an interest in it or in its destruction."

Constitutional Limitations 431-432 (7th ed.1903). And that wasthe holding of the Court inBoyd v. United States,116 U. S. 616,decided in 1886. Mr. Justice Bradley reviewed British history,includingEntick v. Carrington, supra, and Americanhistory under the Bill of Rights, and said:

"The search for and seizure of stolen or forfeited goods, orgoods liable to duties and concealed to avoid the payment thereof,are totally different things from a search for and seizure of aman's private books and papers for the purpose of obtaininginformation therein contained, or of using them as evidence againsthim. The two things differtoto coelo. In the one case,the government is entitled to the possession of the property; inthe other, it is not."

Id. at116 U. S.623.

What Mr. Justice Bradley said about stolen or forfeited goods orcontraband is, of course, not accurate if read to mean that theymay be seized at any time even without a warrant or not incident toan arrest that is lawful. The right to seize contraband is notabsolute. If the search leading to discovery of an illicit articleis

Page 387 U. S. 319

not incidental to a lawful arrest or not authorized by a searchwarrant, the fact that contraband is discovered does not make theseizure constitutional.Trupiano v. United States,334 U. S. 699,334 U. S. 705;McDonald v. United States,335 U.S. 451;Henry v. United States,361 U. S.98,361 U. S. 103;Beck v. Ohio,379 U. S. 89;Aguilar v. Texas,378 U. S. 108.

That is not our question. Our question is whether theGovernment, though armed with a proper search warrant or thoughmaking a search incident to an arrest, may seize, and use at thetrial, testimonial evidence, whether it would otherwise be barredby the Fifth Amendment or would be free from such strictures. Theteaching ofBoyd is that such evidence, though seizedpursuant to a lawful search, is inadmissible.

That doctrine had its full flowering inGouled v. UnitedStates,255 U. S. 298,where an opinion was written by Mr. Justice Clarke for a unanimousCourt that included both Mr. Justice Holmes and Mr. JusticeBrandeis. The prosecution was for defrauding the Government underprocurement contracts. Documents were taken from defendant'sbusiness office under a search warrant and used at the trial asevidence against him. Stolen or forged papers could be so seized,the Court said; so could lottery tickets; so could contraband; socould property in which the public had an interest, for reasonstracing back to warrants allowing the seizure of stolen property.But the papers or documents fell in none of those categories andthe Court therefore held that, even though they had been takenunder a warrant, they were inadmissible at the trial as not even awarrant, though otherwise proper and regular, could be used "forthe purpose of making search to secure evidence" of a crime.Id. at255 U. S. 309.The use of those documents against the accused might, of course,violate the Fifth Amendment.Id. at255 U. S. 311.But whatever may be the intrinsic nature of the evidence,

Page 387 U. S. 320

the owner is then "the unwilling source of the evidence"(id. at255 U. S.306), there being no difference so far as the FifthAmendment is concerned

"whether he be obliged to supply evidence against himself orwhether such evidence be obtained by an illegal search of hispremises and seizure of his private papers."

Ibid.

We have, to be sure, breached that barrier,Schmerber v.California,384 U. S. 757,being a conspicuous example. But I dissented then, and renew myopposing view at this time. That which is taken from a personwithout his consent and used as testimonial evidence violates theFifth Amendment.

That was the holding inGouled, and that was the lineof authority followed by Judge Simon Sobeloff, writing for theCourt of Appeals for reversal in this case. 363 F.2d 647. As hesaid, even if we assume that the search was lawful, the articles ofclothing seized were of evidential value only and underGouled could not be used at the trial against petitioner.As he said, the Fourth Amendment guarantees the right of the peopleto be secure "in their persons, houses, papers, and effects,against unreasonable searches and seizures." Articles of clothingare covered as well as papers. Articles of clothing may be ofevidential value as much as documents or papers.

Judge Learned Hand stated a part of the philosophy of the FourthAmendment inUnited States v. Poller, 43 F.2d 911,914:

"[I]t is only fair to observe that the real evil aimed at by theFourth Amendment is the search itself, that invasion of a man'sprivacy which consists in rummaging about among his effects tosecure evidence against him. If the search is permitted at all,perhaps it does not make so much difference what is taken away,since the officers will ordinarily

Page 387 U. S. 321

not be interested in what does not incriminate, and there can beno sound policy in protecting what does. Nevertheless, limitationsupon the fruit to be gathered tend to limit the quest itself. . .."

The right of privacy protected by the Fourth Amendment relatesin part, of course, to the precincts of the home or the office. Butit does not make them sanctuaries where the law can never reach.There are such places in the world. A mosque in Fez, Morocco, thatI have visited, is, by custom, a sanctuary where any refugee mayhide, safe from police intrusion. We have no such sanctuaries here.A policeman in "hot pursuit" or an officer with a search warrantcan enter any house, any room, any building, any office. Theprivacy of those places is, of course, protected against invasionexcept in limited situations. The full privacy protected by theFourth Amendment is, however, reached when we come to books,pamphlets, papers, letters, documents, and other personal effects.Unless they are contraband or instruments of the crime, they maynot be reached by any warrant, nor may they be lawfully seized bythe police who are in "hot pursuit." By reason of the FourthAmendment, the police may not rummage around among these personaleffects, no matter how formally perfect their authority may appearto be. They may not seize them. If they do, those articles may notbe used in evidence. Any invasion whatsoever of those personaleffects is "unreasonable" within the meaning of the FourthAmendment. That is the teaching ofEntick v. Carrington, Boydv. United States, andGouled v. United States.

Some seek to explainEntick v. Carrington on the groundthat it dealt with seditious libel and that any search forpolitical tracts or letters under our Bill of Rights would beunlawfulper se because of the First

Page 387 U. S. 322

Amendment and therefore "unreasonable" under the Fourth. Thatargument misses the main point. A prosecution for seditious libelwould, of course, be unconstitutional under the First Amendment,because it bars laws "abridging the freedom of speech, or of thepress." The First Amendment also has a penumbra, for, while itprotects only "speech" and "press," it also protects related rightssuch as the right of association.See NAACP v. Alabama,357 U. S. 449,357 U. S. 460,357 U. S. 462;Bates v. Little Rock,361 U. S. 516,361 U. S. 523;Shelton v. Tucker,364 U. S. 479,364 U. S. 486;Louisiana v. NAACP,366 U. S. 293,366 U. S. 296,andNAACP v. Button,371 U. S. 415,371 U. S.430-431. So it could be held, quite apart from theFourth Amendment, that any probing into the area of opinions andbeliefs would be barred by the First Amendment. That is the essenceof what we said inWatkins v. United States,354 U.S. 178,354 U. S.197:

"Clearly, an investigation is subject to the command that theCongress shall make no law abridging freedom of speech or press orassembly. While it is true that there is no statute to be reviewed,and that an investigation is not a law, nevertheless aninvestigation is part of lawmaking. It is justified solely as anadjunct to the legislative process. The First Amendment may beinvoked against infringement of the protected freedoms by law or bylawmaking."

But the privacy protected by the Fourth Amendment is much widerthan the one protected by the First.Boyd v. United Stateswas a forfeiture proceeding under the customs revenue law, and thepaper held to be beyond the reach of the Fourth Amendment was aninvoice covering the imported goods. 116 U.S. at116 U. S.617-619,116 U. S. 638.And as noted,Gouled v. United States involved aprosecution for defrauding the Government under procurementcontracts and the papers held protected against

Page 387 U. S. 323

seizure, even under a technically proper warrant, were (1) anunexecuted form of contract between defendant and another person;(2) a written contract signed by defendant and another person, and(3) a bill for disbursement and professional services rendered bythe attorney to the defendant. 255 U.S. at255 U. S.306-307.

The constitutional philosophy is, I think, clear. The personaleffects and possessions of the individual (all contraband and thelike excepted) are sacrosanct from prying eyes, from the long armof the law, from any rummaging by police. Privacy involves thechoice of the individual to disclose or to reveal what he believes,what he thinks, what he possesses. The article may be a nondescriptwork of art, a manuscript of a book, a personal account book, adiary, invoices, personal clothing, jewelry, or whatnot. Those whowrote the Bill of Rights believed that every individual needs bothto communicate with others and to keep his affairs to himself. Thatdual aspect of privacy means that the individual should have thefreedom to select for himself the time and circumstances when hewill share his secrets with others and decide the extent of thatsharing. [Footnote 3/2] This is hisprerogative

Page 387 U. S. 324

not the States'. The Framers, who were as knowledgeable as we,knew what police surveillance meant and how the practice ofrummaging through one's personal effects could destroy freedom.

It was in that tradition that we held inGriswold v.Connecticut,381 U. S. 479,that lawmakers could not, as respects husband and wife at least,make the use of contraceptives a crime. We spoke of thepronouncement inBoyd v. United States that the Fourth andFifth Amendments protected the person against all governmentalinvasions "of the sanctity of a man's home and the privacies oflife." 116 U.S. at116 U. S. 630.We spoke of the "right to privacy" of the Fourth Amendment upheldbyMapp v. Ohio,367 U. S. 643,367 U. S. 656,and of the many other controversies "over these penumbral rights ofprivacy and repose.'" 381 U.S. at381 U. S. 485.And we added:

"Would we allow the police to search the sacred precincts ofmarital bedrooms for telltale signs of the use of contraceptives?The very idea is repulsive to the notions of privacy surroundingthe marriage relationship."

"We deal with a right of privacy older than the Bill of Rights-- older than our political parties, older than our school system.Marriage is a coming together for better or for worse, hopefullyenduring, and intimate to the degree of being sacred. It is anassociation that promotes a way of life, not causes; a harmony inliving, not political faiths; a bilateral

Page 387 U. S. 325

loyalty, not commercial or social projects. Yet it is anassociation for as noble a purpose as any involved in our priordecisions."

Id. at381 U. S.485-486.

This right of privacy, sustained inGriswold, is kin tothe right of privacy created by the Fourth Amendment. That there isa zone that no police can enter -- whether, in "hot pursuit" orarmed with a meticulously proper warrant -- has been emphasized byBoyd and byGouled. They have been consistentlyand continuously approved. [Footnote3/3] I would adhere to them, and leave with the individual thechoice of opening his private effects (apart from contraband andthe like) to the police or keeping their contents a secret andtheir integrity inviolate. The existence of that choice is the veryessence of the right of privacy. Without it, the Fourth Amendmentand the Fifth are ready instruments for the police state that theFramer sought to avoid.

[Footnote 3/1]

The Virginia Declaration of Rights, June 12, 1776, in itsArticle 10, proclaimed only against "general warrants."See Rutland, The Birth of the Bill of Rights 232 (1955).And the definition of the general warrant included not only alicense to search for everything in a named place, but to searchall and any places in the discretion of the officers.Frisbiev. Butler, 1 Kirby 213 (Conn.).See generallyQuincy's Mass. Rep. 1761-1772 Appendix I for the forms of thesewrits.

[Footnote 3/2]

This concept of the right of privacy protected by the FourthAmendment is mirrored in the cases involving collateral aspects ofthe problem presented in this case:

"It has, similarly, been held that a defendant cannot complainof the seizure of books and papers neither his own, nor in hispossession. It is also the well settled rule that, where the papersare public records, the defendant's custody will not avail himagainst their seizure. Where papers are taken out of the custody ofone not their owner, it seems that such person can object if therehas been no warrant, or if the warrant was directed to him, but notif the warrant is directed to the owner. If the defendant'sproperty is lawfully out of his possession, it makes no differenceby what means it comes into the Government's hands, as there hasbeen no compulsion exercised upon him. But the privilege extends toletters in the mails. The privilege extends to the office, as wellas the home."

"On the other hand, to enable a person to claim the privilege,it is not necessary that he be a party to any pending criminalproceeding. He can object to the illegal seizure of his ownproperty and resist a forcible production of it even if he is onlycalled as a witness."

"Nor must a person be a citizen to be entitled to the protectionof the Fourth Amendment. . . ."

Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361,375-376.

[Footnote 3/3]

See, e.g., Carroll v. United States,267 U.S. 132,267 U. S.149-150;United States v. Lefkowitz,285 U. S. 452,285 U. S.464-466;Davis v. United States,328 U.S. 582,328 U. S. 590,n. 11;Harris v. United States,331 U.S. 145,331 U. S. 154;United States v. Rabinowitz,339 U. S.56,339 U. S. 64, n.6;Abel v. United States,362 U.S. 217,362 U. S.234-235.