MAPP v.
367
MR. JUSTICE CLARK delivered the
opinion of the Court.
Appellant stands
convicted of knowingly having had in her possession and under her control
certain lewd and lascivious books, pictures, and photographs in violation of
§ 2905.34 of
n1 The statute
provides in pertinent part that
"No person
shall knowingly . . . have in his possession or under his control an obscene,
lewd, or lascivious book [or] . . . picture . . . .
"Whoever
violates this section shall be fined not less than two hundred nor more than
two thousand dollars or imprisoned not less than one nor more than seven years,
or both."
[*644]
On May 23, 1957, three Cleveland police officers arrived at appellant's
residence in that city pursuant to information that "a person [was] hiding
out in the home, who was wanted for questioning in connection with a recent
bombing, and that there was a large amount of policy paraphernalia being hidden
in the home." Miss Mapp and her daughter by a former marriage lived on the
top floor of the two-family dwelling.
Upon their arrival at that house, the officers knocked on the door and
demanded entrance but appellant, after telephoning her attorney, refused to
admit them without a search warrant. They advised their headquarters [***1084]
of the situation and undertook a surveillance of the house.
The officers again
sought entrance some three hours later when four or more additional officers
arrived on the [**1686] scene.
When Miss Mapp did not come to the door immediately, at least one of the
several doors to the house was forcibly opened n2 and the policemen gained
admittance. Meanwhile Miss Mapp's
attorney arrived, but the officers, having secured their own entry, and
continuing in their defiance of the law, would permit him neither to see Miss
Mapp nor to enter the house. It appears
that Miss Mapp was halfway down the stairs from the upper floor to the front
door when the officers, in this highhanded manner, broke into the hall. She demanded to see the search warrant. A
paper, claimed to be a warrant, was held up by one of the officers. She grabbed the "warrant" and
placed it in her bosom. A struggle
ensued in which the officers recovered the piece of paper and as a result of
which they handcuffed appellant because she had been
"belligerent" [*645] in resisting their official rescue of the
"warrant" from her person.
Running roughshod over appellant, a policeman "grabbed" her,
"twisted [her] hand," and she "yelled [and] pleaded with
him" because "it was hurting." Appellant, in handcuffs, was then
forcibly taken upstairs to her bedroom where the officers searched a dresser, a
chest of drawers, a closet and some suitcases.
They also looked into a photo album and through personal papers
belonging to the appellant. The search
spread to the rest of the second floor including the child's bedroom, the
living room, the kitchen and a dinette.
The basement of the building and a trunk found therein were also
searched. The obscene materials for
possession of which she was ultimately convicted were discovered in the course
of that widespread search.
n2 A police officer
testified that "we did pry the screen door to gain entrance"; the
attorney on the scene testified that a policeman "tried . . . to kick in
the door" and then "broke the glass in the door and somebody reached
in and opened the door and let them in"; the appellant testified that
"The back door was broken."
At the trial no
search warrant was produced by the prosecution, nor was the failure to produce
one explained or accounted for. At best,
"There is, in the record, considerable doubt as to whether there ever was any
warrant for the search of defendant's home."
The State says that
even if the search were made without authority, or otherwise unreasonably, it
is not prevented from using the unconstitutionally seized evidence at trial,
citing Wolf v. Colorado, 338 U.S. 25 (1949), in which this Court
did indeed hold "that in a prosecution in a State court for a State crime
the Fourteenth Amendment [*646] does not forbid the admission of evidence
obtained by an unreasonable search and seizure." At p. 33. On
this appeal, of which we have noted probable jurisdiction, 364
n3 Other issues
have been raised on this appeal but, in the view we have taken of the case,
they need not be decided. Although
appellant chose to urge what may have appeared to be the surer ground for
favorable disposition and did not insist that Wolf be overruled, the amicus
curiae, who was also permitted to participate in the oral argument, did
urge the Court to overrule Wolf.
I.
Seventy-five years
ago, in Boyd v.
"apply to all invasions on the part of the government
and its employes of the sanctity of a man's home and the privacies of
life. It is not the breaking of his
doors, and the rummaging of his drawers,
[*647] that constitutes the
essence of the offence; but it is the invasion of his indefeasible right of
personal security, personal liberty and private property . . . . Breaking into a house and opening boxes and
drawers are circumstances of aggravation; but any forcible and compulsory
extortion of a man's own testimony or of his private papers to be used as
evidence to convict him of crime or to forfeit his goods, is within the
condemnation . . . [of those Amendments]."
The Court noted that
"constitutional provisions for the security of
person and property should be liberally construed. . . . It is the duty of courts to be watchful for
the constitutional rights of the citizen, and against any stealthy
encroachments thereon." At p. 635.
In this jealous regard for maintaining the integrity
of individual rights, the Court gave life to
n4 "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 upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."
n5 The close
connection between the concepts later embodied in these two Amendments had been
noted at least as early as 1765 by Lord Camden, on whose opinion in Entick
v. Carrington, 19 Howell's State Trials 1029, the Boyd court drew
heavily. Lord Camden had noted, at 1073:
"It is very certain, that the
law obligeth no man to accuse himself; because the necessary means of
compelling self-accusation, falling upon the innocent as well as the guilty,
would be both cruel and unjust; and it should seem, that search for evidence is
disallowed upon the same principle.
There too the innocent would be confounded with the guilty."
Less than 30 years
after Boyd, this Court, in Weeks v.
"the Fourth Amendment . . . put the courts of the
United States and Federal officials, in the exercise of their power and
authority, under limitations and restraints [and] . . . forever secure[d] the
people, their persons, houses, papers and effects against all unreasonable
searches and seizures under the guise of law . . . and the duty of giving to it
force and effect is obligatory upon all entrusted under our Federal system [***1086]
with the enforcement of the laws." At pp. 391-392.
[*648] Specifically dealing with the use of the
evidence unconstitutionally seized, the Court concluded:
"If letters and private documents can thus be
seized and held and used in evidence against a citizen accused of an offense,
the protection of the Fourth Amendment declaring his right to be secure against
such searches and seizures is of no value, and, so far as those thus placed are
concerned, might as well be stricken
[**1688] from the Constitution. The efforts of the courts and their officials
to bring the guilty to punishment, praiseworthy as they are, are not to be
aided by the sacrifice of those great principles established by years of
endeavor and suffering which have resulted in their embodiment in the
fundamental law of the land." At p. 393.
Finally, the Court
in that case clearly stated that use of the seized evidence involved "a
denial of the constitutional rights of the accused." At p. 398. Thus, in the year 1914, in the Weeks
case, this Court "for the first time" held that "in a federal
prosecution the Fourth Amendment barred the use of evidence secured through an
illegal search and seizure." Wolf v.
[*649]
There are in the cases of this Court some passing references to the Weeks
rule as being one of evidence. But the
plain and unequivocal language of Weeks -- and its later paraphrase in Wolf
-- to the effect that the Weeks rule is of constitutional origin,
remains entirely undisturbed. In Byars
v. United States, 273 U.S. 28 (1927), a unanimous Court declared that
"the doctrine [cannot] . . . be tolerated under our constitutional
system, that evidences of crime discovered by a federal officer in making a
search without lawful warrant may be used against the victim of the unlawful
search where a timely challenge has been interposed." At pp. 29-30
(emphasis added). The Court, in Olmstead
v.
"The striking
outcome of the Weeks case and those which followed it was the sweeping
declaration that the Fourth Amendment, although not referring to or limiting
the use of evidence in courts, really forbade its introduction if obtained by
government officers through a violation of the Amendment." At p. 462.
In McNabb v.
"[A] conviction in the federal courts, the
foundation of which is [***1087] evidence obtained in disregard of liberties
deemed fundamental by the Constitution, cannot stand. Boyd v.
Significantly, in McNabb, the Court did then
pass on to formulate a rule of evidence, saying, "in the view we take
of [**1689] the case, however, it becomes unnecessary to
reach the Constitutional issue [for] . . . the principles governing the
admissibility of evidence in federal criminal trials have not been restricted .
. . to those derived solely from the Constitution." At pp. 340-341.
II.
In 1949, 35 years
after Weeks was announced, this Court, in Wolf v. Colorado,
supra, again for the first time, n6 discussed the effect of the Fourth
Amendment upon the States through the operation of the Due Process Clause of
the Fourteenth Amendment. It said:
"We have no hesitation in saying that were a
State affirmatively to sanction such police incursion into privacy it would run
counter to the guaranty of the Fourteenth Amendment." At p. 28.
Nevertheless, after declaring that the "security
of one's privacy against arbitrary intrusion by the police" is
"implicit in 'the concept of ordered liberty' and as such enforceable
against the States through the Due Process Clause," cf. Palko v.
n6 See, however, National
Safe Deposit Co. v. Stead, 232 U.S. 58 (1914), and
While they are not
basically relevant to a decision that the exclusionary rule is an essential
ingredient of the Fourth Amendment as the right it embodies is vouchsafed
against the States by the Due Process Clause, we will consider the current
validity of the factual grounds upon which Wolf was based.
The Court in Wolf
first stated that "the contrariety of views of the States" on the
adoption of the exclusionary rule of Weeks was "particularly
impressive" (at p. 29); and, in this connection, that it could not
"brush aside the experience of States which deem the incidence of such
conduct by the police too slight to call for a deterrent remedy . . . by
overriding the [States'] relevant rules of evidence." At pp. 31-32. While in 1949, prior to the Wolf case,
almost two-thirds of the States
[***1088] were opposed to the use
of the exclusionary rule, now, despite the Wolf case, more than half of
those since passing upon it, by their own legislative or judicial decision,
have wholly or partly adopted or adhered to the Weeks rule. See Elkins v.
n7 Less than half
of the States have any criminal provisions relating directly to unreasonable
searches and seizures. The punitive sanctions of the 23 States attempting to
control such invasions of the right of privacy may be classified as follows:
Criminal
Liability of Affiant for Malicious Procurement of Search Warrant. --
Criminal
Liability of Magistrate Issuing Warrant Without Supporting Affidavit. -- N. C. Gen. Stat., 1953, § 15-27;
Criminal
Liability of Officer Willfully Exceeding Authority of Search Warrant. --
Criminal
Liability of Officer for Search with Invalid Warrant or no Warrant. --
[***HR1] [***HR2]
Likewise, time has set its face against what Wolf called the
"weighty testimony" of People v. Defore, 242 N. Y. 13,
150 N. E. 585 (1926). There Justice (then Judge) Cardozo, rejecting adoption of
the Weeks exclusionary rule in
It, therefore,
plainly appears that the factual considerations supporting the failure of the
[*654]
III.
Some five years
after Wolf, in answer to a plea made here Term after Term that we
overturn its doctrine on applicability of the Weeks exclusionary rule,
this Court indicated that such should not be done until the States had
"adequate opportunity to adopt or reject the [Weeks] rule."
"Never until June of 1949 did this Court hold the
basic search-and-seizure prohibition in any way applicable to the states under
the Fourteenth Amendment." Ibid.
[***HR3] And only last Term, after again carefully
re-examining the Wolf doctrine in Elkins v. United States,
supra, the Court pointed out that "the controlling principles" as
to search and seizure and the problem of admissibility "seemed clear"
(at p. 212) until the announcement in Wolf "that the Due Process
Clause of the Fourteenth Amendment does not itself require state courts to
adopt the exclusionary rule" of the Weeks case. At p. 213.
At the same time, the Court pointed out, "the underlying
constitutional doctrine which Wolf established . . . that the Federal
Constitution . . . prohibits unreasonable searches and seizures by state
officers" had undermined the "foundation upon which the admissibility
of stateseized evidence in a federal trial originally rested . . . ." Ibid. The Court concluded that it was therefore
obliged to hold, although it chose the narrower ground on which to do so, that
all evidence obtained by an unconstitutional search and seizure was
inadmissible in a federal court regardless of its source. Today we once again examine Wolf's
constitutional documentation of the right to privacy free from unreasonable
state intrusion, and, after its dozen years on our books, are led by it to
close the only [*655] courtroom door remaining [***1090]
open to evidence secured by official lawlessness in flagrant abuse of
that basic right, reserved to all persons as a specific guarantee against that
very same unlawful conduct. We hold that
all evidence obtained by searches and seizures in violation of the Constitution
is, by that same authority, inadmissible in a state court.
IV.
[***HR4] Since the Fourth Amendment's right of privacy
has been declared enforceable against the States through the Due Process Clause
of the Fourteenth, it is enforceable against them by the same sanction of
exclusion as is used against the Federal Government. Were it otherwise, then just as without the Weeks
rule the assurance against unreasonable federal searches and seizures would be
"a form of words," valueless and undeserving of mention in a
perpetual charter of inestimable human liberties, so too, without that rule the
freedom from state invasions of privacy would be so ephemeral and so neatly
severed from its conceptual nexus with the freedom from all brutish means of
coercing evidence as not to merit this Court's high regard as a freedom
"implicit in the concept of ordered liberty." At the time that the Court
held in Wolf that the Amendment was applicable to the States through the
Due Process Clause, the cases of this Court, as we have seen, had steadfastly
held that as to federal officers the Fourth Amendment included the exclusion of
the evidence seized in violation
[**1692] of its provisions. Even Wolf "stoutly adhered"
to that proposition. The right to
privacy, when conceded operatively enforceable against the States, was not
susceptible of destruction by avulsion of the sanction upon which its protection
and enjoyment had always been deemed dependent under the Boyd, Weeks and
Silverthorne cases. Therefore, in
extending the substantive protections of due process to all constitutionally
unreasonable searches -- state or federal -- it was [*656]
logically and constitutionally necessary that the exclusion doctrine --
an essential part of the right to privacy -- be also insisted upon as an
essential ingredient of the right newly recognized by the Wolf
case. In short, the admission of the new
constitutional right by Wolf could not consistently tolerate denial of
its most important constitutional privilege, namely, the exclusion of the
evidence which an accused had been forced to give by reason of the unlawful
seizure. To hold otherwise is to grant the right but in reality to withhold its
privilege and enjoyment. Only last year
the Court itself recognized that the purpose of the exclusionary rule "is
to deter -- to compel respect for the constitutional guaranty in the only
effectively available way -- by removing the incentive to disregard it." Elkins
v.
[***HR5] Indeed,
we are aware of no restraint, similar to that rejected today,
conditioning the enforcement of any other basic constitutional right. The right to privacy, no less important than
any other right carefully and particularly reserved to the people, would stand
in marked contrast to all other rights declared as "basic to a free
society." Wolf v. Colorado, supra, at 27. This Court has not
hesitated to enforce as strictly against the States as it does against the
Federal Government the rights of free speech and of a free press, the rights to
notice and to a fair, public trial, including,
[***1091] as it does, the right
not to be convicted by use of a coerced confession, however logically relevant
it be, and without regard to its reliability.
Rogers v. Richmond, 365 U.S. 534 (1961). And nothing could
be more certain than that when a coerced confession is involved, "the
relevant rules of evidence" are overridden without regard to "the
incidence of such conduct by the police," slight or frequent. Why should not the same rule apply to what is
tantamount to coerced testimony by way of unconstitutional seizure of goods,
papers, effects, documents, etc.? We find that,
[*657] as to the Federal
Government, the Fourth and Fifth Amendments and, as to the States, the freedom
from unconscionable invasions of privacy and the freedom from convictions based
upon coerced confessions do enjoy an "intimate relation" n8 in their
perpetuation of "principles of humanity and civil liberty [secured] . . .
only after years of struggle," Bram v. United States, 168
U.S. 532, 543-544 (1897). They express "supplementing phases of the same
constitutional purpose -- to maintain inviolate large areas of personal
privacy." Feldman v. United States, 322 U.S. 487, 489-490
(1944). The philosophy of each Amendment and of each freedom is complementary
to, although not dependent upon, that of the other in its sphere of influence
-- the very least that together they assure in either sphere is that no man is
to be convicted on unconstitutional evidence.
Cf. Rochin v. California,
342 U.S. 165, 173 (1952).
n8 But compare Waley
v. Johnston, 316 U.S. 101, 104, and Chambers v. Florida,
309 U.S. 227, 236, with Weeks v. United States, 232 U.S. 383, and
Wolf v. Colorado, 338 U.S. 25.
[**1693]
V.
[***HR6] [***HR7]
Moreover, our holding that the exclusionary rule is an essential part of
both the Fourth and Fourteenth Amendments is not only the logical dictate of
prior cases, but it also makes very good sense.
There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no
use of evidence illegally seized, but a State's attorney across the street may,
although he supposedly is operating under the enforceable prohibitions of the
same Amendment. Thus the State, by
admitting evidence unlawfully seized, serves to encourage disobedience to the
Federal Constitution which it is bound to uphold. Moreover, as was said in Elkins,
"the very essence of a healthy federalism depends upon the avoidance of
needless conflict between [*658] state and federal courts." 364 U.S., at
221. Such a conflict, hereafter needless, arose this very Term, in Wilson
v. Schnettler, 365 U.S. 381 (1961), in which, and in spite of the
promise made by Rea, we gave full recognition to our practice in this
regard by refusing to restrain a federal officer from testifying in a state
court as to evidence unconstitutionally seized by him in the performance of his
duties. Yet the double standard
recognized until today hardly put such a thesis into practice. In nonexclusionary States, federal officers,
being human, were by it invited to and did, as our cases indicate, step
across [***1092] the street to the State's attorney with their
unconstitutionally seized evidence. Prosecution on the basis of that evidence
was then had in a state court in utter disregard of the enforceable Fourth
Amendment. If the fruits of an unconstitutional search had been inadmissible in
both state and federal courts, this inducement to evasion would have been
sooner eliminated. There would be no
need to reconcile such cases as Rea and Schnettler, each pointing
up the hazardous uncertainties of our heretofore ambivalent approach.
[***HR8] Federal-state cooperation in the solution of
crime under constitutional standards will be promoted, if only by recognition
of their now mutual obligation to respect the same fundamental criteria in
their approaches. "However much in
a particular case insistence upon such rules may appear as a technicality that
inures to the benefit of a guilty person, the history of the criminal law
proves that tolerance of shortcut methods in law enforcement impairs its
enduring effectiveness." Miller v. United States, 357 U.S.
301, 313 (1958). Denying shortcuts to only one of two cooperating law
enforcement agencies tends naturally to breed legitimate suspicion of
"working arrangements" whose results are equally tainted. Byars v. United States, 273
U.S. 28 (1927); Lustig v. United States, 338 U.S. 74 (1949).
[*659]
There are those who say, as did Justice (then Judge) Cardozo, that under
our constitutional exclusionary doctrine "the criminal is to go free
because the constable has blundered." People v. Defore, 242
N. Y., at 21, 150 N. E., at 587. In some cases this will undoubtedly be the
result. n9 But, as was [**1694] said in Elkins, "there is another
consideration -- the imperative of judicial integrity." 364 U.S., at 222.
The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly
than its failure to observe its own laws, or worse, its disregard of the
charter of its own existence. As Mr.
Justice Brandeis, dissenting, said in Olmstead v. United States,
277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches
the whole people by its example. . . .
If the Government becomes a lawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it invites anarchy." Nor can
it lightly be assumed that, as a practical matter, adoption of the exclusionary
rule fetters law enforcement. Only last year this Court expressly considered
that contention and found that "pragmatic evidence of a sort" to the
contrary was not wanting. Elkins
v. United States, supra, at 218. The Court noted that
"The federal courts themselves have operated
under the exclusionary rule of Weeks for almost half [***1093]
a century; [*660] yet it has not been suggested either that the
Federal Bureau of Investigation n10 has thereby been rendered ineffective, or that the administration of criminal
justice in the federal courts has thereby been disrupted. Moreover, the experience of the states is
impressive. . . . The movement towards
the rule of exclusion has been halting but seemingly inexorable." Id.,
at 218-219.
n9
[***HR9]
As is always the case, however, state procedural requirements governing
assertion and pursuance of direct and collateral constitutional challenges to
criminal prosecutions must be respected.
We note, moreover, that the class of state convictions possibly affected
by this decision is of relatively narrow compass when compared with Burns
v. Ohio, 360 U.S. 252, Griffin v. Illinois, 351 U.S. 12,
and Herman v. Claudy, 350 U.S. 116. In those cases the same
contention was urged and later proved unfounded. In any case, further delay in reaching the
present result could have no effect other than to compound the difficulties.
n10 See the remarks
of Mr. Hoover, Director of the Federal Bureau of Investigation, FBI Law
Enforcement Bulletin, September, 1952, pp. 1-2, quoted in Elkins v. United
States, 364 U.S. 206, 218-219, note 8.
The ignoble
shortcut to conviction left open to the State tends to destroy the entire
system of constitutional restraints on which the liberties of the people rest.
n11 Having once recognized that the right to privacy embodied in the Fourth
Amendment is enforceable against the States, and that the right to be secure
against rude invasions of privacy by state officers is, therefore,
constitutional in origin, we can no longer permit that right to remain an empty
promise. Because it is enforceable in
the same manner and to like effect as other basic rights secured by the Due
Process Clause, we can no longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement itself, chooses to suspend
its enjoyment. Our decision, founded on
reason and truth, gives to the individual no more than that which the
Constitution guarantees him, to the police officer no less than that to which
honest law enforcement is entitled, and, to the courts, that judicial integrity
so necessary in the true administration of justice.
n11 Cf. Marcus
v. Search Warrant, post, p. 717.
The judgment of the
Supreme Court of Ohio is reversed and the cause remanded for further
proceedings not inconsistent with this opinion.
Reversed and
remanded.
CONCURBY:
BLACK; DOUGLAS
CONCUR:
[*661]
MR. JUSTICE BLACK, concurring.
For nearly fifty
years, since the decision of this Court in Weeks v. United States,
n1 federal courts have refused to permit the introduction into evidence against
an accused of his papers and effects obtained by "unreasonable searches
and seizures" in violation of the Fourth Amendment. In Wolf v. Colorado,
decided in 1948, however, this Court held that "in [**1695]
a prosecution in a State court for a State crime the Fourteenth
Amendment does not forbid the admission of evidence obtained by an unreasonable
search and seizure." n2 I concurred in that holding on these grounds:
"For reasons stated in my dissenting opinion in Adamson
v. California, 332 U.S. 46, 68, I agree with the conclusion of the Court
that the Fourth Amendment's prohibition of 'unreasonable searches and seizures'
is enforceable against the states.
Consequently, I should be for reversal of this case if I thought the
Fourth Amendment not only prohibited 'unreasonable searches and seizures,' but
also, of itself, barred the use of evidence so unlawfully obtained. But I agree with what appears to [***1094]
be a plain implication of the Court's opinion that the federal
exclusionary rule is not a command of the Fourth Amendment but is a judicially
created rule of evidence which Congress might negate." n3
n1 232 U.S. 383,
decided in 1914.
n2 338 U.S. 25, 33.
n3 Id., at
39-40.
I am still not
persuaded that the Fourth Amendment, standing alone, would be enough to bar the
introduction into evidence against an accused of papers and effects seized from
him in violation of its commands. For the
Fourth Amendment does not itself contain any provision expressly precluding the
use of such evidence, and I am
[*662] extremely doubtful that
such a provision could properly be inferred from nothing more than the basic
command against unreasonable searches and seizures. Reflection on the
problem, however, in the light of cases
coming before the Court since Wolf, has led me to conclude that when the
Fourth Amendment's ban against unreasonable searches and seizures is considered
together with the Fifth Amendment's ban against compelled self-incrimination, a
constitutional basis emerges which not only justifies but actually requires the
exclusionary rule.
The close
interrelationship between the Fourth and Fifth Amendments, as they apply to
this problem, n4 has long been recognized and, indeed, was expressly made the
ground for this Court's holding in Boyd v. United States. n5
There the Court fully discussed this relationship and declared itself
"unable to perceive that the seizure of a man's private books and papers
to be used in evidence against him is substantially different from compelling
him to be a witness against himself." n6 It was upon this ground that Mr.
Justice Rutledge largely relied in his dissenting opinion in the Wolf
case. n7 And, although I rejected the argument at that time, its force has, for
me at least, become compelling with the more thorough understanding of the
problem brought on by recent cases. In
the final analysis, it seems to me that the Boyd doctrine, though
perhaps not required by the express language of the Constitution strictly
construed, is amply justified from an historical standpoint, soundly based
in [**1696] reason,
[*663] and entirely consistent
with what I regard to be the proper approach to interpretation of our Bill of
Rights -- an approach well set out by Mr. Justice Bradley in the Boyd
case:
"Constitutional provisions for the security of
person and property should be liberally construed. A close and literal construction deprives
them of half their efficacy, and leads to gradual depreciation of the right, as
if it consisted more in sound than in substance. It is the duty of the courts to be watchful
for the constitutional rights of the citizen, and against any stealthy encroachments
thereon." n8
n4 The interrelationship
between the Fourth and the Fifth Amendments in this area does not, of course,
justify a narrowing in the interpretation of either of these Amendments with
respect to areas in which they operate separately. See Feldman v. United States,
322 U.S. 487, 502-503 (dissenting opinion); Frank v. Maryland,
359 U.S. 360, 374-384 (dissenting opinion).
n5 116 U.S. 616.
n6 Id., at
633.
n7 338 U.S., at
47-48.
n8 116 U.S., at
635. As the Court points out, Mr. Justice Bradley's approach to interpretation
of the Bill of Rights stemmed directly from the spirit in which that great
charter of liberty was offered for adoption on the floor of the House of
Representatives by its framer, James Madison: "If they [the first ten
Amendments] are incorporated into the Constitution, independent tribunals of
justice will consider themselves in a peculiar manner the guardians of those
rights; they will be an impenetrable bulwark against every assumption of power
in the Legislative or Executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights." I Annals of Congress 439 (1789).
The [***1095]
case of Rochin v. California, n9 which we decided three
years after the Wolf case, authenticated, I think, the soundness of Mr.
Justice Bradley's and Mr. Justice Rutledge's reliance upon the
interrelationship between the Fourth and Fifth Amendments as requiring the
exclusion of unconstitutionally seized evidence. In the Rochin case,
three police officers, acting with neither a judicial warrant nor probable
cause, entered Rochin's home for the purpose of conducting a search and broke
down the door to a bedroom occupied by Rochin and his wife. Upon their entry into the room, the officers
saw Rochin pick up and swallow two small capsules. They immediately seized him and took him in
handcuffs to a hospital where the capsules
[*664] were recovered by use of a
stomach pump. Investigation showed that
the capsules contained morphine and evidence of that fact was made the basis of
his conviction of a crime in a state court.
n9 342 U.S. 165.
When the question
of the validity of that conviction was brought here, we were presented with an
almost perfect example of the interrelationship between the Fourth and Fifth
Amendments. Indeed, every member of this Court who participated in the decision
of that case recognized this interrelationship and relied on it, to some extent
at least, as justifying reversal of Rochin's conviction. The majority, though careful not to mention
the Fifth Amendment's provision that "no person . . . shall be compelled
in any criminal case to be a witness against himself," showed at least
that it was not unaware that such a provision exists, stating: "Coerced
confessions offend the community's sense of fair play and decency. . . . It would be a stultification of the
responsibility which the course of constitutional history has cast upon this
Court to hold that in order to convict a man the police cannot extract by force
what is in his mind but can extract what is in his stomach." n10 The
methods used by the police thus were, according to the majority, "too
close to the rack and the screw to permit of constitutional
differentiation," n11 and the case was reversed on the ground that these
methods had violated the Due Process Clause of the Fourteenth Amendment in that
the [**1697] treatment accorded Rochin was of a kind that
"shocks the conscience," "offend[s] 'a sense of justice'"
and fails to "respect certain decencies of civilized conduct." n12
n10 Id., at
173.
n11 Id., at
172.
n12 Id., at
172, 173.
I concurred in the
reversal of the Rochin case, but on the ground that the Fourteenth
Amendment made the Fifth Amendment's provision against self-incrimination [*665]
applicable to the States and that, given a broad rather than a narrow
construction, that provision barred the introduction of this
"capsule" evidence just as much as it would have forbidden the use of
words Rochin might have been coerced to speak. n13 In reaching this conclusion
I cited and relied on the Boyd case, the constitutional doctrine of
which was, of course, necessary to my disposition of the case. At that time, however, these views were very
definitely in [***1096] the minority for only MR. JUSTICE DOUGLAS and
I rejected the flexible and uncertain standards of the "shock-the-conscience
test" used in the majority opinion. n14
n13 Id., at
174-177.
n14 For the concurring
opinion of MR. JUSTICE DOUGLAS see id., at 177-179.
Two years after Rochin,
in Irvine v. California, n15 we were again called upon to
consider the validity of a conviction based on evidence which had been obtained
in a manner clearly unconstitutional and arguably shocking to the
conscience. The five opinions written by
this Court in that case demonstrate the utter confusion and uncertainty that
had been brought about by the Wolf and Rochin decisions. In concurring, MR. JUSTICE CLARK emphasized
the unsatisfactory nature of the Court's "shock-the-conscience test,"
saying that this "test" "makes for such uncertainty and
unpredictability that it would be impossible to foretell -- other than by
guesswork -- just how brazen the invasion of the intimate privacies of one's
home must be in order to shock itself into the protective arms of the
Constitution. In truth, the practical
result of this ad hoc approach is simply that when five Justices are
sufficiently revolted by local police action, a conviction is overturned and a
guilty man may go free." n16
n15 347 U.S. 128.
n16 Id., at
138.
[*666]
Only one thing emerged with complete clarity from the Irvine case
-- that is that seven Justices rejected the "shock-the-conscience"
constitutional standard enunciated in the Wolf and Rochin
cases. But even this did not lessen the
confusion in this area of the law because the continued existence of mutually
inconsistent precedents together with the Court's inability to settle upon a
majority opinion in the Irvine case left the situation at least as
uncertain as it had been before. n17 Finally, today, we clear up that
uncertainty. As I understand the Court's
opinion in this case, we again reject the confusing
"shock-the-conscience" standard of the Wolf and Rochin
cases and, instead, set aside this state conviction in reliance upon the
precise, intelligible and more predictable constitutional doctrine enunciated
in the Boyd case. I fully agree
with Mr. Justice Bradley's opinion that the two Amendments upon which the Boyd
doctrine rests are of vital importance in our constitutional scheme of liberty
and that both are entitled to a liberal rather than a niggardly interpretation. The courts of the country are entitled to
know with as much certainty as possible what scope they cover. The Court's opinion, in my judgment,
dissipates the doubt and uncertainty in this field of constitutional law and I
am persuaded, for this and other reasons stated, to depart from my prior views,
to accept the Boyd doctrine
[**1698] as controlling in this
state case and to join the Court's judgment and opinion which are in accordance
with that constitutional doctrine.
n17 See also United
States v. Rabinowitz, 339 U.S. 56, 66-68 (dissenting opinion).
MR. JUSTICE
DOUGLAS, concurring.
Though I have
joined the opinion of the Court, I add a few words. This criminal proceeding started with a
lawless search and seizure. The police entered a home [*667]
forcefully, and seized documents that were later used to convict the
occupant of a crime.
She lived alone
with her fifteen-year-old daughter in the second-floor flat of a duplex in
Cleveland. At about 1:30 in the
afternoon of May 23, 1957, three policemen arrived at this house. They rang the bell, and [***1097]
the appellant, appearing at her window, asked them what they wanted. According to their later testimony, the
policemen had come to the house on information from "a confidential source
that there was a person hiding out in the home, who was wanted for questioning
in connection with a recent bombing." n1 To the appellant's question,
however, they replied only that they wanted to question her and would not state
the subject about which they wanted to talk.
n1 This
"confidential source" told the police, in the same breath, that
"there was a large amount of policy paraphernalia being hidden in the
home."
The appellant, who
had retained an attorney in connection with a pending civil matter, told the
police she would call him to ask if she should let them in. On her attorney's advice, she told them she
would let them in only when they produced a valid search warrant. For the next
two and a half hours, the police laid siege to the house. At four o'clock, their number was increased
to at least seven. Appellant's lawyer
appeared on the scene; and one of the policemen told him that they now had a
search warrant, but the officer refused to show it. Instead, going to the back door, the officer
first tried to kick it in and, when that proved unsuccessful, he broke the
glass in the door and opened it from the inside.
The appellant, who
was on the steps going up to her flat, demanded to see the search warrant; but
the officer refused to let her see it although he waved a paper in front of her
face. She grabbed it and thrust it down
the front of her dress. The policemen
seized her, took the paper [*668] from her, and had her handcuffed to another
officer. She was taken upstairs, thus
bound, and into the larger of the two bedrooms in the apartment; there she was
forced to sit on the bed. Meanwhile, the
officers entered the house and made a complete search of the four rooms of her
flat and of the basement of the house.
The testimony
concerning the search is largely nonconflicting. The approach of the officers; their long wait
outside the home, watching all its doors; the arrival of reinforcements armed
with a paper; n2 breaking into the house; putting their hands on appellant and
handcuffing her; numerous officers ransacking through every room and piece of
furniture, while the appellant sat, a prisoner in her own bedroom. There is direct conflict in the testimony,
however, as to where the evidence which is the basis of this case was
found. To understand the meaning of that
conflict, one must understand that this case is based [**1699]
on the knowing possession n3 of four little pamphlets, a couple of
photographs and a little pencil doodle -- all
[***1098] of which are alleged to
be pornographic.
n2 The purported
warrant has disappeared from the case.
The State made no attempt to prove its existence, issuance or contents,
either at the trial or on the hearing of a preliminary motion to suppress. The Supreme Court of Ohio said: "There
is, in the record, considerable doubt as to whether there ever was any
warrant for the search of defendant's home. . . . Admittedly . . . there was no warrant
authorizing a search . . . for any 'lewd, or lascivious book . . . print, [or]
picture.'" 170 Ohio St. 427, 430, 166 N. E. 2d 387, 389. (Emphasis added.)
n3 Ohio Rev. Code,
§ 2905.34: "No person shall
knowingly . . . have in his possession or under his control an obscene, lewd,
or lascivious book, magazine, pamphlet, paper, writing, advertisement, circular,
print, picture . . . or drawing . . . of an indecent or immoral nature . . .
. Whoever violates this section shall be
fined not less than two hundred nor more than two thousand dollars or
imprisoned not less than one nor more than seven years, or both."
According to the
police officers who participated in the search, these articles were found, some
in appellant's [*669] dressers and some in a suitcase found by her
bed. According to appellant, most of the
articles were found in a cardboard box in the basement; one in the suitcase
beside her bed. All of this material,
appellant -- and a friend of hers -- said were odds and ends belonging to a
recent boarder, a man who had left suddenly for New York and had been detained
there. As the Supreme Court of Ohio read
the statute under which appellant is charged, she is guilty of the crime
whichever story is true.
The Ohio Supreme
Court sustained the conviction even though it was based on the documents
obtained in the lawless search. For in
Ohio evidence obtained by an unlawful search and seizure is admissible in a
criminal prosecution at least where it was not taken from the "defendant's
person by the use of brutal or offensive force against defendant." State
v. Mapp, 170 Ohio St. 427, 166 N. E. 2d, at 388, syllabus 2; State
v. Lindway, 131 Ohio St. 166, 2 N. E. 2d 490. This evidence would have
been inadmissible in a federal prosecution.
Weeks v. United States, 232 U.S. 383; Elkins v. United
States, 364 U.S. 206. For, as stated in the former decision, "The
effect of the Fourth Amendment is to put the courts of the United States and
Federal officials, in the exercise of their power and authority, under
limitations and restraints . . . ." Id., 391-392. It was therefore held that evidence obtained
(which in that case was documents and correspondence) from a home without any
warrant was not admissible in a federal prosecution.
We held in Wolf
v. Colorado, 338 U.S. 25, that the Fourth Amendment was applicable to
the States by reason of the Due Process Clause of the Fourteenth Amendment. But
a majority held that the exclusionary rule of the Weeks case was not
required of the States, that they could apply such sanctions as they
chose. That position had the necessary
votes to carry the day. But with all
respect it was not the voice of reason or principle.
[*670]
As stated in the Weeks case, if evidence seized in violation of
the Fourth Amendment can be used against an accused, "his right to be
secure against such searches and seizures is of no value, and . . . might as
well be stricken from the Constitution." 232 U.S., at 393.
When we allowed
States to give constitutional sanction to the "shabby business" of
unlawful entry into a home (to use an expression of Mr. Justice Murphy, Wolf
v. Colorado, at 46), we did indeed rob the Fourth Amendment of much
meaningful force. There are, of course,
other theoretical remedies. One is
disciplinary action within the hierarchy of the police system, including
prosecution of the police officer for a crime.
Yet as Mr. Justice Murphy said in Wolf v. Colorado, at 42,
"Self-scrutiny is a lofty ideal, but its exaltation reaches new heights if
we expect a District Attorney to prosecute himself or his associates for
well-meaning [**1700] violations of the search and seizure clause
during a raid the District Attorney or his associates have ordered."
The only remaining
remedy, if exclusion [***1099] of the evidence is not required, is an action
of trespass by the homeowner against the offending officer. Mr. Justice Murphy showed how onerous and
difficult it would be for the citizen to maintain that action and how meagre
the relief even if the citizen prevails.
338 U.S. 42-44. The truth is that trespass actions against officers who
make unlawful searches and seizures are mainly illusory remedies.
Without judicial
action making the exclusionary rule applicable to the States, Wolf v. Colorado
in practical effect reduced the guarantee against unreasonable searches and
seizures to "a dead letter," as Mr. Justice Rutledge said in his
dissent. See 338 U.S., at 47.
Wolf v. Colorado, supra, was
decided in 1949. The immediate result
was a storm of constitutional controversy which only today finds its end. I believe that this is an appropriate case in
which to put an end to the asymmetry which Wolf imported into the
law. See
[*671] Stefanelli v. Minard,
342 U.S. 117; Rea v. United States, 350 U.S. 214; Elkins
v. United States, supra; Monroe v. Pape, 365 U.S. 167. It is an
appropriate case because the facts it presents show -- as would few other cases
-- the casual arrogance of those who have the untrammelled power to invade
one's home and to seize one's person.
It is also an
appropriate case in the narrower and more technical sense. The issues of the illegality of the search
and the admissibility of the evidence have been presented to the state court
and were duly raised here in accordance with the applicable Rule of Practice.
n4 The question was raised in the notice of appeal, the jurisdictional
statement and in appellant's brief on the merits. n5 It is true that argument
was mostly directed to another issue in the case, but that is often the
fact. See Rogers v. Richmond,
365 U.S. 534, 535-540. Of course, an earnest advocate of a position always
believes that, had he only an additional opportunity for argument, his side
would win. But, subject to the sound
discretion of a court, all argument must at last come to a halt. This is especially so as to an issue about
which this Court said last year that "The arguments of its antagonists and
of its proponents have been so many times marshalled as to require no lengthy
elaboration here." Elkins v. United States, supra, 216.
n4 "The notice
of appeal . . . shall set forth the questions presented by the appeal . . .
. Only the questions set forth in the
notice of appeal or fairly comprised therein will be considered by the
court." Rule 10 (2)(c), Rules of the Supreme Court of the United States.
n5 "Did the
conduct of the police in procuring the books, papers and pictures placed in
evidence by the Prosecution violate Amendment IV, Amendment V, and Amendment
XIV Section 1 of the United States Constitution . . . ?"
Moreover,
continuance of Wolf v. Colorado in its full vigor breeds the
unseemly shopping around of the kind revealed in Wilson v. Schnettler,
365 U.S. 381. Once evidence, inadmissible in a federal court, is admissible
in [*672] a state court a "double standard"
exists which, as the Court points out, leads to "working
arrangements" that undercut federal policy and reduce some aspects of law
enforcement to shabby business. The rule
that supports that practice does
[***1100] not have the force of
reason behind it.
Memorandum of MR.
JUSTICE STEWART.
[***HR10] Agreeing fully with Part I of MR. JUSTICE
HARLAN's dissenting opinion,
[**1701] I express no view as to
the merits of the constitutional issue which the Court today decides. I would, however, reverse the judgment in
this case, because I am persuaded that the provision of § 2905.34 of the Ohio Revised Code, upon which
the petitioner's conviction was based, is, in the words of MR. JUSTICE HARLAN,
not "consistent with the rights of free thought and expression assured
against state action by the Fourteenth Amendment."
DISSENTBY:
HARLAN
DISSENT:
MR. JUSTICE HARLAN,
whom MR. JUSTICE FRANKFURTER and MR. JUSTICE WHITTAKER join, dissenting.
In overruling the Wolf
case the Court, in my opinion, has forgotten the sense of judicial restraint
which, with due regard for stare decisis, is one element that should
enter into deciding whether a past decision of this Court should be
overruled. Apart from that I also believe
that the Wolf rule represents sounder Constitutional doctrine than the
new rule which now replaces it.
I.
From the Court's
statement of the case one would gather that the central, if not controlling,
issue on this appeal is whether illegally state-seized evidence is
Constitutionally admissible in a state prosecution, an issue which would of
course face us with the need for re-examining Wolf. However, such is not the situation. For, although that question was indeed raised
here and below among appellant's subordinate points, the new and [*673]
pivotal issue brought to the Court by this appeal is whether § 2905.34 of the Ohio Revised Code making
criminal the mere knowing possession or control of obscene material, n1
and under which appellant has been convicted, is consistent with the rights of
free thought and expression assured against state action by the Fourteenth
Amendment. n2 That was the principal issue which was decided by the Ohio
Supreme Court, n3 which was tendered by appellant's Jurisdictional Statement,
n4 and which was [***1101] briefed n5 and argued n6 in this Court.
n1 The material
parts of that law are quoted in note 1 of the Court's opinion. Ante, p. 643.
n2 In its note 3, ante,
p. 646, the Court, it seems to me, has turned upside down the relative
importance of appellant's reliance on the various points made by him on this
appeal.
n3 See 170 Ohio St.
427, 166 N. E. 2d 387. Because of the unusual provision of the Ohio Constitution
requiring "the concurrence of at least all but one of the judges" of
the Ohio Supreme Court before a state law is held unconstitutional (except in
the case of affirmance of a holding of unconstitutionality by the Ohio Court of
Appeals), Ohio Const., Art. IV, § 2, the
State Supreme Court was compelled to uphold the constitutionality of § 2905.34, despite the fact that four of its
seven judges thought the statute offensive to the Fourteenth Amendment.
n4 Respecting the
"substantiality" of the federal questions tendered by this appeal,
appellant's Jurisdictional Statement contained the following:
"The Federal
questions raised by this appeal are substantial for the following reasons:
"The Ohio
Statute under which the defendant was convicted violates one's sacred right to
own and hold property, which has been held inviolate by the Federal
Constitution. The right of the
individual 'to read, to believe or disbelieve, and to think without
governmental supervision is one of our basic liberties, but to dictate to the
mature adult what books he may have in his own private library seems to be a
clear infringement of the constitutional rights of the individual' (Justice
Herbert's dissenting Opinion, Appendix 'A').
Many convictions have followed that of the defendant in the State Courts
of Ohio based upon this very same statute.
Unless this Honorable Court hears this matter and determines once and
for all that the Statute is unconstitutional as defendant contends, there will
be many such appeals. When Sections
2905.34, 2905.37 and 3767.01 of the Ohio Revised Code [the latter two Sections
providing exceptions to the coverage of §
2905.34 and related provisions of Ohio's obscenity statutes] are read
together, . . . they obviously contravene the Federal and State constitutional
provisions; by being convicted under the Statute involved herein, and in the
manner in which she was convicted, Defendant-Appellant has been denied due
process of law; a sentence of from one (1) to seven (7) years in a penal
institution for alleged violation of this unconstitutional section of the Ohio
Revised Code deprives the defendant of her right to liberty and the pursuit of
happiness, contrary to the Federal and State constitutional provisions, for
circumstances which she herself did not put in motion, and is a cruel and
unusual punishment inflicted upon her contrary to the State and Federal
Constitutions."
n5 The appellant's
brief did not urge the overruling of Wolf. Indeed it did not even cite the case. The brief of the appellee merely relied on Wolf
in support of the State's contention that appellant's conviction was not
vitiated by the admission in evidence of the fruits of the alleged unlawful
search and seizure by the police. The
brief of the American and Ohio Civil Liberties Unions, as amici, did in
one short concluding paragraph of its argument "request" the Court to
re-examine and overrule Wolf, but without argumentation. I quote in full this part of their brief:
"This case
presents the issue of whether evidence obtained in an illegal search and
seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has
taken on this issue in Wolf v. Colorado, 338 U.S. 25. It is our
purpose by this paragraph to respectfully request that this Court re-examine
this issue and conclude that the ordered liberty concept guaranteed to persons
by the due process clause of the Fourteenth Amendment necessarily requires that
evidence illegally obtained in violation thereof, not be admissible in state criminal
proceedings."
n6 Counsel for
appellant on oral argument, as in his brief, did not urge that Wolf be
overruled. Indeed, when pressed by
questioning from the bench whether he was not in fact urging us to overrule Wolf,
counsel expressly disavowed any such purpose.
[*674]
[**1702] In this posture of
things, I think it fair to say that five members of this Court have simply
"reached out" to overrule Wolf. With all respect for the views of the
majority, and recognizing that stare decisis carries different [*675]
weight in Constitutional adjudication than it does in nonconstitutional
decision, I can perceive no justification for regarding this case as an appropriate
occasion for re-examining Wolf.
The action of the
Court finds no support in the rule that decision of Constitutional issues
should be avoided wherever possible. For
in overruling Wolf the Court, instead of passing upon the validity of
Ohio's § 2905.34, has simply chosen
between two Constitutional questions.
Moreover, I submit that it has chosen the more difficult and less
appropriate of the two questions. The
Ohio statute which, as construed by the State Supreme Court, punishes knowing
possession or control of obscene material, irrespective of the purposes of such
possession or control (with exceptions not here applicable) n7 and irrespective
of whether the accused had any reasonable
[**1703] opportunity to rid
himself of the material after discovering that it was obscene, n8 surely
presents [***1102] a Constitutional [*676]
question which is both simpler and less far-reaching than the question
which the Court decides today. It seems
to me that justice might well have been done in this case without overturning a
decision on which the administration of criminal law in many of the States has
long justifiably relied.
n7 "2905.37
LEGITIMATE PUBLICATIONS NOT OBSCENE.
"Sections
2905.33 to 2905.36, inclusive, of the Revised Code do not affect teaching in
regularly chartered medical colleges, the publication of standard medical
books, or regular practitioners of medicine or druggists in their legitimate
business, nor do they affect the publication and distribution of bona fide
works of art. No articles specified in
sections 2905.33, 2905.34, and 2905.36 of the Revised Code shall be considered
a work of art unless such article is made, published, and distributed by a bona
fide association of artists or an association for the advancement of art whose
demonstrated purpose does not contravene sections 2905.06 to 2905.44, inclusive,
of the Revised Code, and which is not organized for profit."
§ 3767.01 (C)
'This section and sections
2905.34, . . . 2905.37 . . . of the Revised Code shall not affect . . . any
newspaper, magazine, or other publication entered as second class matter by the
post-office department."
n8 The Ohio Supreme
Court, in its construction of § 2905.34,
controlling upon us here, refused to import into it any other exceptions than
those expressly provided by the statute.
See note 7, supra. Instead
it held that "If anyone looks at a book and finds it lewd, he is
forthwith, under this legislation, guilty . . . ."
Since the demands
of the case before us do not require us to reach the question of the validity
of Wolf, I think this case furnishes a singularly inappropriate occasion
for reconsideration of that decision, if reconsideration is indeed
warranted. Even the most cursory
examination will reveal that the doctrine of the Wolf case has been of
continuing importance in the administration of state criminal law. Indeed,
certainly as regards its "nonexclusionary" aspect, Wolf did no
more than articulate the then existing assumption among the States that the
federal cases enforcing the exclusionary rule "do not bind [the States],
for they construe provisions of the Federal Constitution, the Fourth and Fifth
Amendments, not applicable to the States." People v. Defore,
242 N. Y. 13, 20, 150 N. E. 585, 587. Though, of course, not reflecting the
full measure of this continuing reliance, I find that during the last three
Terms, for instance, the issue of the inadmissibility of illegally
state-obtained evidence appears on an average of about fifteen times per Term
just in the in forma pauperis cases summarily disposed of by us. This would indicate both that the issue which
is now being decided may well have untoward practical ramifications respecting
state cases long since disposed of in reliance on Wolf, and that were we
determined to re-examine that doctrine we would not lack future opportunity.
The occasion which
the Court has taken here is in the context of a case where the question was
briefed not at all and argued only extremely tangentially. The unwisdom of overruling Wolf
without full-dress argument [*677] is aggravated by the circumstance that that
decision is a comparatively recent one (1949) to which three members of the
present majority have at one time or other expressly subscribed, one to be sure
with explicit misgivings. n9 I would think that our obligation to the States,
on whom we impose this new rule, as well as the obligation of orderly adherence
to our own processes would demand that we seek that aid which adequate briefing
and argument lends to the determination of an important issue. It certainly has never been a postulate of judicial
power that mere altered disposition, or subsequent membership on the Court, is
sufficient warrant for overturning a deliberately decided rule of
Constitutional law.
n9 See Wolf
v. Colorado, 338 U.S., at 39-40; Irvine v. California, 347
U.S. 128, 133-134, and at 138-139. In the latter case, decided in 1954, Mr.
Justice Jackson, writing for the majority, said (at p. 134): "We think
that the Wolf decision should not be overruled, for the reasons so
persuasively stated therein." Compare Schwartz v. Texas, 344
U.S. 199, and Stefanelli v. Minard, 342 U.S. 117, in which the Wolf
case was discussed and in no way disapproved.
And see Pugach v. Dollinger, 365 U.S. 458, which relied on
Schwartz.
[**1704]
Thus, if the Court were bent on reconsidering Wolf, I think that
there would soon have presented itself an appropriate opportunity in which we
could have had the benefit of full briefing and argument. In any event, at the very least, the present
case should have been set [***1103] down for reargument, in view of the
inadequate briefing and argument we have received on the Wolf
point. To all intents and purposes the
Court's present action amounts to a summary reversal of Wolf, without
argument.
I am bound to say
that what has been done is not likely to promote respect either for the Court's
adjudicatory process or for the stability of its decisions. Having been unable, however, to persuade any
of the majority to a different procedural course, I now turn to the merits of
the present decision.
[*678]
II.
Essential to the
majority's argument against Wolf is the proposition that the rule of Weeks
v. United States, 232 U.S. 383, excluding in federal criminal trials the
use of evidence obtained in violation of the Fourth Amendment, derives not from
the "supervisory power" of this Court over the federal judicial
system, but from Constitutional requirement.
This is so because no one, I suppose, would suggest that this Court
possesses any general supervisory power over the state courts. Although I entertain considerable doubt as to
the soundness of this foundational proposition of the majority, cf. Wolf v. Colorado, 338 U.S., at
39-40 (concurring opinion), I shall assume, for present purposes, that the Weeks
rule "is of constitutional origin."
At the heart of the
majority's opinion in this case is the following syllogism: (1) the rule
excluding in federal criminal trials evidence which is the product of an
illegal search and seizure is "part and parcel" of the Fourth
Amendment; (2) Wolf held that the "privacy" assured against
federal action by the Fourth Amendment is also protected against state action
by the Fourteenth Amendment; and (3) it is therefore "logically and
constitutionally necessary" that the Weeks exclusionary rule should
also be enforced against the States. n10
n10 Actually, only
four members of the majority support this reasoning. See pp. 685-686, infra.
This reasoning
ultimately rests on the unsound premise that because Wolf carried into
the States, as part of "the concept of ordered liberty" embodied in
the Fourteenth Amendment, the principle of "privacy" underlying the
Fourth Amendment (338 U.S., at 27), it must follow that whatever configurations
of the Fourth Amendment have been developed in the particularizing federal precedents
are likewise to be deemed a part of "ordered liberty," [*679]
and as such are enforceable against the States. For me, this does not follow at all.
It cannot be too
much emphasized that what was recognized in Wolf was not that the Fourth
Amendment as such is enforceable against the States as a facet of due
process, a view of the Fourteenth Amendment which, as Wolf itself
pointed out (338 U.S., at 26), has long since been discredited, but the
principle of privacy "which is at the core of the Fourth Amendment."
( Id., at 27.) It would not be proper to expect or impose any precise
equivalence, either as regards the scope of the right or the means of its
implementation, between the requirements of the Fourth and Fourteenth
Amendments. For the Fourth, unlike what
was said in Wolf of the Fourteenth, does not state a general principle
only; it is a particular command, having its setting in a pre-existing legal
context on which both [***1104] interpreting decisions and enabling statutes
must at least build.
[**1705]
Thus, even in a case which presented simply the question of whether a
particular search and seizure was constitutionally "unreasonable" --
say in a tort action against state officers -- we would not be true to the
Fourteenth Amendment were we merely to stretch the general principle of
individual privacy on a Procrustean bed of federal precedents under the Fourth
Amendment. But in this instance more than that is involved, for here we are
reviewing not a determination that what the state police did was Constitutionally
permissible (since the state court quite evidently assumed that it was not),
but a determination that appellant was properly found guilty of conduct which,
for present purposes, it is to be assumed the State could Constitutionally
punish. Since there is not the slightest
suggestion that Ohio's policy is "affirmatively to sanction . . . police
incursion into privacy" (338 U.S., at 28), compare Marcus v. Search
Warrants, post, p. 717, what the Court is now doing is to impose [*680]
upon the States not only federal substantive standards of "search
and seizure" but also the basic federal remedy for violation of those
standards. For I think it entirely clear
that the Weeks exclusionary rule is but a remedy which, by penalizing
past official misconduct, is aimed at deterring such conduct in the future.
I would not impose
upon the States this federal exclusionary remedy. The reasons given by the majority for now
suddenly turning its back on Wolf seem to me notably unconvincing.
First, it is said
that "the factual grounds upon which Wolf was based" have
since changed, in that more States now follow the Weeks exclusionary
rule than was so at the time Wolf was decided. While that is true, a recent survey indicates
that at present one-half of the States still adhere to the common-law
non-exclusionary rule, and one, Maryland, retains the rule as to felonies. Berman and Oberst, Admissibility of Evidence
Obtained by an Unconstitutional Search and Seizure, 55 N. W. L. Rev. 525,
532-533. But in any case surely all this is beside the point, as the majority
itself indeed seems to recognize. Our
concern here, as it was in Wolf, is not with the desirability of that
rule but only with the question whether the States are Constitutionally free to
follow it or not as they may themselves determine, and the relevance of the
disparity of views among the States on this point lies simply in the fact that
the judgment involved is a debatable one.
Moreover, the very fact on which the majority relies, instead of lending
support to what is now being done, points away from the need of replacing
voluntary state action with federal compulsion.
The preservation of
a proper balance between state and federal responsibility in the administration
of criminal justice demands patience on the part of those who might like to see
things move faster among the States in this respect. Problems of criminal law enforcement
vary [*681] widely from State to State. One State, in considering the totality of its
legal picture, may conclude that the need for embracing the Weeks rule
is pressing because other remedies are unavailable or inadequate to secure
compliance with the substantive Constitutional principle involved. Another,
though equally solicitous of Constitutional rights, may choose to pursue
one purpose at a [***1105] time, allowing all evidence relevant to guilt
to be brought into a criminal trial, and dealing with Constitutional infractions
by other means. Still another may
consider the exclusionary rule too rough-and-ready a remedy, in that it reaches
only unconstitutional intrusions which eventuate in criminal prosecution of the
victims. Further, a State after
experimenting with the Weeks rule for a time may, because of
unsatisfactory experience with it, decide to revert to a non-exclusionary
rule. And so on. From the standpoint of Constitutional
permissibility in pointing a State in one direction or another, I do not see at
all why "time has set its
[**1706] face against" the
considerations which led Mr. Justice Cardozo, then chief judge of the New York
Court of Appeals, to reject for New York in People v. Defore, 242
N. Y. 13, 150 N. E. 585, the Weeks exclusionary rule. For us the
question remains, as it has always been, one of state power, not one of passing
judgment on the wisdom of one state course or another. In my view this Court should continue to
forbear from fettering the States with an adamant rule which may embarrass them
in coping with their own peculiar problems in criminal law enforcement.
Further, we are
told that imposition of the Weeks rule on the States makes "very
good sense," in that it will promote recognition by state and federal
officials of their "mutual obligation to respect the same fundamental
criteria" in their approach to law enforcement, and will avoid
"'needless conflict between state and federal courts.'" Indeed the
majority now finds an incongruity
[*682] in Wolf's
discriminating perception between the demands of "ordered liberty" as
respects the basic right of "privacy" and the means of securing it
among the States. That perception,
resting both on a sensitive regard for our federal system and a sound
recognition of this Court's remoteness from particular state problems, is for
me the strength of that decision.
An approach which
regards the issue as one of achieving procedural symmetry or of serving
administrative convenience surely disfigures the boundaries of this Court's
functions in relation to the state and federal courts. Our role in promulgating the Weeks
rule and its extensions in such cases as Rea, Elkins, and Rios
n11 was quite a different one than it is here.
There, in implementing the Fourth Amendment, we occupied the position of
a tribunal having the ultimate responsibility for developing the standards and
procedures of judicial administration within the judicial system over which it
presides. Here we review state
procedures whose measure is to be taken not against the specific substantive
commands of the Fourth Amendment but under the flexible contours of the Due
Process Clause. I do not believe that
the Fourteenth Amendment empowers this Court to mould state remedies
effectuating the right to freedom from "arbitrary intrusion by the
police" to suit its own notions of how things should be done, as, for
instance, the California Supreme Court did in People v. Cahan, 44
Cal. 2d 434, 282 P. 2d 905, with reference to procedures in the California
courts or as this Court did in Weeks for the lower federal courts.
n11 Rea v. United
States, 350 U.S. 214; Elkins v. United States, 364 U.S. 206; Rios
v. United States, 364 U.S. 253.
A [***1106]
state conviction comes to us as the complete product of a sovereign judicial
system. Typically a case will have been
tried in a trial court, tested in some final appellate [*683]
court, and will go no further. In
the comparatively rare instance when a conviction is reviewed by us on due
process grounds we deal then with a finished product in the creation of which
we are allowed no hand, and our task, far from being one of over-all
supervision, is, speaking generally, restricted to a determination of whether
the prosecution was Constitutionally fair.
The specifics of trial procedure, which in every mature legal system
will vary greatly in detail, are within the sole competence of the States. I do not see how it can be said that a trial
becomes unfair simply because a State determines that evidence may be
considered by the trier of fact, regardless of how it was obtained, if it is
relevant to the one issue with which the trial is concerned, the guilt or
innocence of the accused. Of course, a
court may use its procedures as an incidental means of pursuing other ends than
the correct resolution of the controversies before it. Such indeed is [**1707]
the Weeks rule, but if a State does not choose to use its courts
in this way, I do not believe that this Court is empowered to impose this
much-debated procedure on local courts, however efficacious we may consider the
Weeks rule to be as a means of securing Constitutional rights.
Finally, it is said
that the overruling of Wolf is supported by the established doctrine
that the admission in evidence of an involuntary confession renders a state
conviction Constitutionally invalid.
Since such a confession may often be entirely reliable, and therefore of
the greatest relevance to the issue of the trial, the argument continues, this
doctrine is ample warrant in precedent that the way evidence was obtained, and
not just its relevance, is Constitutionally significant to the fairness of a
trial. I believe this analogy is not a
true one. The "coerced confession"
rule is certainly not a rule that any illegally obtained statements may not be
used in evidence. I would suppose that a
statement which is procured during
[*684] a period of illegal
detention, McNabb v. United States, 318 U.S. 332, is, as much as
unlawfully seized evidence, illegally obtained,
but this Court has consistently refused to reverse state convictions
resting on the use of such statements.
Indeed it would seem the Court laid at rest the very argument now made
by the majority when in Lisenba v. California, 314 U.S. 219, a
state-coerced confession case, it said (at 235):
"It may be assumed [that the] treatment of the
petitioner [by the police] . . . deprived him of his liberty without due
process and that the petitioner would have been afforded preventive relief if
he could have gained access to a court to seek it.
"But illegal
acts, as such, committed in the course of obtaining a confession . . . do not
furnish an answer to the constitutional question we must decide. . . . The gravamen of his complaint is the
unfairness of the use of his confessions, and what occurred in their
procurement is relevant only as it bears on that issue." (Emphasis
supplied.)
The point, then,
must be that in requiring exclusion of an involuntary [***1107]
statement of an accused, we are concerned not with an appropriate remedy
for what the police have done, but with something which is regarded as going to
the heart of our concepts of fairness in judicial procedure. The operative assumption of our procedural
system is that "Ours is the accusatorial as opposed to the inquisitorial
system. Such has been the characteristic
of Anglo-American criminal justice since it freed itself from practices
borrowed by the Star Chamber from the Continent whereby the accused was
interrogated in secret for hours on end." Watts v. Indiana,
338 U.S. 49, 54. See Rogers v. Richmond, 365 U.S. 534, 541. The
pressures brought to bear against an accused leading to a confession, unlike an
unconstitutional violation of privacy, do not, apart [*685]
from the use of the confession at trial, necessarily involve independent
Constitutional violations. What is
crucial is that the trial defense to which an accused is entitled should not be
rendered an empty formality by reason of statements wrung from him, for then
"a prisoner . . . [has been] made the deluded instrument of his own
conviction." 2 Hawkins, Pleas of the Crown (8th ed., 1824), c. 46, § 34.
That this is a procedural right, and that its violation occurs at
the time his improperly obtained statement is admitted at trial, is
manifest. For without this right all the
careful safeguards erected around the giving of testimony, whether by an
accused or any other witness, would become empty formalities in [**1708]
a procedure where the most compelling possible evidence of guilt, a
confession, would have already been obtained at the unsupervised pleasure of
the police.
This, and not the
disciplining of the police, as with illegally seized evidence, is surely the
true basis for excluding a statement of the accused which was
unconstitutionally obtained. In sum, I
think the coerced confession analogy works strongly against what the
Court does today.
In conclusion, it
should be noted that the majority opinion in this case is in fact an opinion
only for the judgment overruling Wolf, and not for the basic
rationale by which four members of the majority have reached that result. For my Brother BLACK is unwilling to
subscribe to their view that the Weeks exclusionary rule derives from
the Fourth Amendment itself (see ante, p. 661), but joins the majority
opinion on the premise that its end result can be achieved by bringing the
Fifth Amendment to the aid of the Fourth (see ante, pp. 662-665). n12 On
that score I need only say that whatever the validity of [*686]
the "Fourth-Fifth Amendment" correlation which the Boyd
case (116 U.S. 616) found, see 8 Wigmore, Evidence (3d ed. 1940), § 2184, we have only very recently again
reiterated the long-established doctrine of this Court that the Fifth Amendment
privilege against self-incrimination is not applicable to the States. See Cohen v. Hurley, 366 U.S.
117.
n12 My Brother
STEWART concurs in the Court's judgment on grounds which have nothing to do
with Wolf.
I regret that I
find so unwise in principle and so inexpedient in policy a decision motivated
by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court
can increase respect for the Constitution only if it rigidly respects the
limitations which the Constitution
[***1108] places upon it, and
respects as well the principles inherent in its own processes. In the present case I think we exceed both,
and that our voice becomes only a voice of power, not of reason.