WOLF v.
338
MR. JUSTICE FRANKFURTER delivered the opinion of the
Court.
The precise question for
consideration is this: Does a conviction by a State court for a State offense
deny the "due process of law" required by the Fourteenth Amendment,
solely because evidence that was admitted
[*26] at the trial was obtained
under circumstances which would have rendered it inadmissible in a prosecution
for violation of a federal law in a court of the United States because there
deemed to be an infraction of the Fourth Amendment as applied in Weeks
v. United States, 232 U.S. 383? The Supreme Court of Colorado has
sustained convictions in which such evidence was admitted, 117 Col. 279, 187 P.
2d 926; 117 Col. 321, 187 P. 2d 928, and we brought the cases here. 333
[***HR1] Unlike the specific requirements and
restrictions placed by the Bill of Rights (Amendments I to VIII) upon the
administration of criminal justice by federal authority, the Fourteenth
Amendment did not subject criminal
justice in the States to
[***1785] specific
limitations. The notion that the
"due process of law" guaranteed by the Fourteenth Amendment is
shorthand for the first eight amendments of the Constitution and thereby
incorporates them has been rejected by this Court again and again, after
impressive consideration. See, e. g., Hurtado
v.
For purposes of ascertaining the
restrictions which the Due Process Clause
[**1361] imposed upon the States
in the enforcement of their criminal law, we adhere to the views expressed in Palko
v.
[***HR2] Due process of law thus conveys neither
formal nor fixed nor narrow requirements.
It is the compendious expression for all those rights which the courts
must enforce because they are basic to our free society. But basic rights do not become petrified as
of any one time, even though, as a matter of human experience, some may not too
rhetorically be called eternal verities.
It is of the very nature of a free society to advance in its standards
of what is deemed reasonable and right.
Representing as it does a living principle, due process is not confined
within a permanent catalogue of what may at a given time be deemed the limits
or the essentials of fundamental rights.
To rely on a tidy formula for the
easy determination of what is a fundamental right for purposes of legal
enforcement may satisfy a longing for
certainty but ignores the movements of a free society. It belittles the scale of the conception of
due process. The real clue to the
problem confronting the judiciary in the application of the Due Process Clause
is not to ask where the line is once and for all to be drawn but to recognize
that it is for the Court to draw it by the gradual and empiric process of
"inclusion and exclusion." Davidson v.
[***HR3] The security of one's privacy against
arbitrary intrusion by the police -- which is at the core of the Fourth
Amendment -- is basic to a free society.
It is therefore implicit in "the concept of ordered liberty"
and as such enforceable against the States through the Due Process [*28]
Clause. The knock at the door,
whether by day or by night, as a prelude to a search, without authority of law
but solely on the authority of the police, did not need the commentary of
recent history to be condemned as inconsistent
with [***1786] the conception of human rights enshrined in
the history and the basic constitutional documents of English-speaking peoples.
Accordingly, 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.
But the ways of enforcing such a basic right raise questions of a different
order. How such arbitrary conduct should
be checked, what remedies against it should be afforded, the means by which the
right should be made effective, are all questions that are not to be so dogmatically
answered as to preclude the varying solutions which spring from an allowable
range of judgment on issues not susceptible of quantitative solution.
In Weeks v.
I. Before the Weeks decision 27 States had passed on the
admissibility of evidence obtained by unlawful search and seizure.
(a) Of these, 26 States opposed
the Weeks doctrine. (See
Appendix, Table A.)
(b) Of these, 1 State anticipated the Weeks
doctrine. (Table B.)
II. Since the Weeks decision 47 States all told have passed on
the Weeks doctrine. (Table C.)
(a) Of these, 20 passed on it for
the first time.
(1) Of the foregoing States, 6
followed the Weeks doctrine.
(Table D.)
(2) Of the foregoing States, 14
rejected the Weeks doctrine.
(Table E.)
(b) Of these, 26 States reviewed
prior decisions contrary to the Weeks doctrine.
(1) Of these, 10 States have
followed Weeks, overruling or distinguishing their prior decisions. (Table F.)
(2) Of these, 16 States adhered to
their prior decisions against Weeks.
(Table G.)
(c) Of these, 1 State repudiated
its prior formulation of the Weeks doctrine. (Table H.)
III. As of today 31 States reject the Weeks doctrine, 16 States
are in agreement with it. (Table I.)
[*30] IV. Of 10 jurisdictions within the
The jurisdictions which have
rejected the Weeks doctrine have not left the right to privacy without
other [***1787] means
of protection. n1 Indeed, the exclusion of evidence [*31]
is a remedy which directly serves only to protect those upon whose
person or premises something incriminating has been found. We cannot, therefore, regard it as a
departure from basic standards to remand such persons, together with those who
emerge scatheless from a search, to the remedies of private action and such
protection as the internal discipline of the police, under the eyes of an alert
public opinion, may afford. Granting
that in practice the exclusion of evidence may be an effective way of deterring
unreasonable searches, it is not for this Court to condemn [**1363]
as falling below the minimal standards assured by the Due Process Clause
a State's reliance upon other methods which, if consistently enforced, would be
equally effective. Weighty testimony against such an insistence on our own view
is furnished by the opinion of Mr. Justice (then Judge) Cardozo in People
v. Defore, 242 N. Y. 13, 150 N. E. 585. n2 We cannot brush aside
the [***1788] experience of States which deem the incidence
of such [*32] conduct by the police too slight to call for
a deterrent remedy not by way [**1364] of disciplinary measures but by
overriding the relevant rules of
evidence. There are, moreover, reasons
for excluding evidence unreasonably obtained by the federal police which are
less compelling in the case of police under State or local authority. The public opinion of a community can far
more effectively be exerted against oppressive conduct on the part of police
directly responsible to the community itself than can local opinion,
sporadically aroused, be brought to bear upon
[*33] remote authority
pervasively exerted throughout the country.
n1 The common law provides actions for damages against
the searching officer, e. g., Entick v. Carrington, 2 Wils. 275,
19 How. St. Tr. 1029; Grumon v. Raymond, 1 Conn. 40; Sandford
v. Nichols, 13 Mass. 286; Halsted v. Brice, 13 Mo. 171; Hussey
v. Davis, 58 N. H. 317; Reed v. Lucas, 42 Texas 529;
against one who procures the issuance of a warrant maliciously and without
probable cause, e. g., Gulsby v. Louisville & N. R. Co., 167
Ala. 122, 52 So. 392; Whitson v. May, 71 Ind. 269; Krehbiel
v. Henkle, 152 Iowa 604, 129 N. W. 945; Olson v. Tvete, 46
Minn. 225, 48 N. W. 914; Boeger v. Langenberg, 97 Mo. 390, 11 S.
W. 223; Doane v. Anderson, 60 Hun 586, 15 N. Y. S. 459; Shall
v. Minneapolis, St. P. & S. S. M. R. Co., 156 Wis. 195, 145 N. W.
649; against a magistrate who has acted without jurisdiction in issuing a
warrant, e. g., Williams v. Kozak, 280 F. 373 (C. A. 4th Cir.); Grumon
v. Raymond, 1 Conn. 40; Kennedy v. Terrill, Hardin (Ky.)
490; Shaw v. Moon, 117 Ore. 558, 245 P. 318; and against persons
assisting in the execution of an illegal search, e. g., Hebrew v. Pulis,
73 N. J. L. 621, 625, 64 A. 121, 122; Cartwright v. Canode, 138
S. W. 792 (Tex. Civ. App.), aff'd, 106 Texas 502, 171 S. W. 696. One may also
without liability use force to resist an unlawful search. E. g., Commonwealth
v. Martin, 105
Statutory sanctions in the main provide for the
punishment of one maliciously procuring a search warrant or willfully exceeding
his authority in exercising it. E. g.,
18 U. S. C. (1946 ed.) § § 630, 631;
Ala. Code, Tit. 15, § 99 (1940); Ariz.
Code Ann. § 44-3513 (1939); Fla. Stat.
Ann. § § 933.16, 933.17 (1944); Iowa
Code § § 751.38, 751.39 (1946); Mont.
Rev. Code Ann. § § 10948, 10952 (1935);
Nev. Comp. Laws § § 10425, 10426 (1929);
N. Y. Crim. Code § § 811, 812, N. Y.
Penal Law § § 1786, 1847; N. D. Rev.
Code § § 12-1707, 12-1708 (1943); Okla.
Stat. Ann., Tit. 21, § § 536, 585, Tit.
22, § § 1239, 1240 (1937); Ore. Comp.
Laws Ann. § 26-1717 (1940); S. D. Code §
§ 13.1213, 13.1234, 34.9904, 34.9905
(1939); Tenn. Code Ann. § 11905 (1934). Some statutes more broadly penalize unlawful
searches. E. g., 18 U. S. C.
(1946 ed.) § 53a;
n2 "We hold, then, with the defendant that the
evidence against him was the outcome of a trespass. The officer might have been
resisted, or sued for damages, or even prosecuted for oppression (Penal Law, §
§ 1846, 1847). He was subject to removal or other discipline
at the hands of his superiors. These
consequences are undisputed. The
defendant would add another. We must
determine whether evidence of criminality, procured by an act of trespass, is
to be rejected as incompetent for the misconduct of the trespasser. . . .
"Those judgments [Weeks v.
"In so holding [i. e., that evidence
procured by unlawful search is not incompetent], we are not unmindful of the
argument that unless the evidence is excluded, the statute becomes a form and
its protection an illusion. This has a
strange sound when the immunity is viewed in the light of its origin and
history. The rule now embodied in the
statute was received into English law as the outcome of the prosecution of
Wilkes and Entick . . . . Wilkes sued
the messengers who had ransacked his papers, and recovered a verdict of # 4,000
against one and # 1,000 against the other.
Entick, too, had a substantial verdict . . . . We do not know whether the public,
represented by its juries, is to-day more indifferent to its liberties than it
was when the immunity was born. If so,
the change of sentiment without more does not work a change of remedy. Other sanctions, penal and disciplinary,
supplementing the right to damages, have already been enumerated. No doubt the protection of the statute would
be greater from the point of view of the individual whose privacy had been
invaded if the government were required to ignore what it had learned through
the invasion. The question is whether protection for the individual would not
be gained at a disproportionate loss of protection for society. On the one side is the social need that crime
shall be repressed. On the other, the
social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the
[***HR4] We hold, therefore, that in 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. And
though we have interpreted the Fourth Amendment to forbid the admission of such
evidence, a different question would be presented if Congress under its
legislative powers were to pass a statute purporting to negate the Weeks
doctrine. We would then be faced with
the problem of the respect to be accorded the legislative judgment on an issue
as to which, in default of that judgment, we have been forced to depend upon
our own. Problems of a converse
character, also not before us, would be presented should Congress under § 5 of the Fourteenth Amendment undertake to
enforce the rights there guaranteed by attempting to make the Weeks
doctrine binding upon the States.
Affirmed.
APPENDIX *
* In the case of jurisdictions which have decided more
than one case in point, the following Tables cite only the leading case.
TABLE A. |
|
STATES WHICH OPPOSED THE Weeks DOCTRINE BEFORE |
|
THE Weeks CASE HAD BEEN DECIDED. |
|
ALA. |
Shields v. States, 104 |
ARK. |
Starchman v. State, 62 |
CONN. |
State v. Griswold, 67 |
GA. |
Williams v. State, 100 |
|
State v. Bond, 12 |
ILL. |
Siebert v. People, 143 |
KAN. |
State v. Miller, 63 |
ME. |
|
MD. |
Lawrence v. State, 103 |
[*34]
TABLE A -- Continued. |
|
STATES WHICH OPPOSED THE Weeks DOCTRINE BEFORE |
|
THE Weeks CASE HAD BEEN DECIDED. |
|
MASS. |
Commonwealth v. Dana, 2 Metc. 329. |
MICH. |
People v. Aldorfer, 164 Mich. 676, 130 N. W.
351. |
MINN. |
State v. Strait, 94 Minn. 384, 102 N. W.
913. |
MO. |
State v. Pomeroy, 130 Mo. 489, 32 S. W.
1002. |
MONT. |
See
State v. Fuller, 34 Mont. 12, 19, 85 P. 369, 373. |
NEB. |
Geiger v. State, 6 Neb. 545. |
N.H. |
State v. Flynn, 36 N.H. 64. |
N.
Y. |
People v. Adams, 176 N. Y. 351, 68 N. E.
636. |
N.
C. |
State v. Wallace, 162 N. C. 622, 78 S. E. 1. |
OKLA. |
Silva v. State, 6 Okla, Cr. 97, 116 P. 199. |
ORE. |
State v. McDaniel, 39 Ore. 161, 169-70, 65
P. 520, 523. |
S.
C. |
State v. Atkinson, 40 S. C. 363, 371, 18 S.
E. 1021, 1024. |
S.D. |
State v. Madison, 23 S.D. 584, 591, 122 N.
W. 647, 650. |
TENN. |
Cohn v. State, 120 Tenn. 61, 109 S. W. 1149. |
VT. |
State v. Mathers, 64 Vt. 101, 23 A. 590. |
WASH. |
State v. Royce, 38 Wash. 111, 80 P. 268. |
W.
VA. |
See
State v. Edwards, 51 W. Va. 220, 229, 41 S. E. 429, |
|
432-33. |
TABLE B. |
|
STATE WHICH HAD FORMULATED THE Weeks DOCTRINE |
|
BEFORE THE Weeks DECISION. |
|
IOWA |
State v. Sheridan, 121 Iowa 164, 96 N. W.
730. |
TABLE C.
STATES WHICH HAVE PASSED ON THE
Weeks DOCTRINE
SINCE THE Weeks CASE WAS DECIDED.
Every State except Rhode Island.
But see State v. Lorenzo, 72 R.I. 175, 48 A. 2d 407 (holding that
defendant had consented to the search, but that, even if he had not and even if
the federal rule applied, the evidence was admissible because no timely motion
to suppress had been made). [*35]
TABLE D. |
|
STATES WHICH PASSED ON THE Weeks DOCTRINE FOR THE FIRST TIME |
|
AFTER THE Weeks DECISION AND IN SO DOING FOLLOWED IT. |
|
FLA. |
Atz v. Andrews, 84 Fla. 43, 94 So. 329. |
IND. |
Flum v. State, 193 Ind. 585, 141 N. E. 353. |
KY. |
Youman v. Commonwealth, 189 Ky. 152, 224 S.
W. 860. |
MISS. |
Tucker v. State, 128 Miss. 211, 90 So. 845. |
WIS. |
Hoyer v. State, 180 Wis. 407, 193 N. W. 89. |
WYO. |
State v. George, 32 Wyo. 223, 231 P. 683. |
TABLE E. |
|
STATES WHICH PASSED ON THE Weeks DOCTRINE FOR THE FIRST TIME |
|
AFTER THE Weeks DECISION AND IN SO DOING REJECTED IT. |
|
ARIZ. |
Argetakis v. State, 24 Ariz. 599, 212 P.
372. |
CALIF. |
People v. Mayen, 188 Calif. 237, 205 P. 435
(adopting the |
|
general rule but distinguishing the cases
then decided by |
|
this Court on the ground that they apply
only when a |
|
timely motion for return of the property
seized had been |
|
made). |
COLO. |
Massantonio v. People, 77 Colo. 392, 236 P.
1019. |
DEL. |
State v. Chuchola, 32 Del. 133, 120 A. 212
(distinguishing |
|
this Court's decisions). |
LA. |
State v. Fleckinger, 152 La. 337, 93 So.
115. The consti- |
|
tutional convention of 1921 refused to
adopt an amend- |
|
ment incorporating the federal rule. See State v. Eddins, |
|
161 La. 240, 108 So. 468. |
NEV. |
State v. Chin Gim, 47 Nev. 431, 224 P. 798. |
N.
J. |
State v. Black, 5 N. J. Misc. 48, 135 A.
685. |
N.M. |
State v. Dillon, 34 N.M. 366, 281 P. 474. |
N.D. |
State v. Fahn, 53 N.D. 203, 205 N. W. 67. |
OHIO |
State v. Lindway, 131 Ohio St. 166, 2 N. E.
2d 490. |
PA. |
Commonwealth v. Dabbierio, 290 Pa. 174, 138
A. 679. |
TEX. |
Welchek v. State, 93 Tex. Cr. Rep. 271, 247
S. W. 524. In |
|
1925 a statute changed the rule by
providing that "No |
|
evidence obtained by an officer or other
person in violation |
|
of any provisions of the Constitution or
laws of the State |
[*36]
TABLE E -- Continued. |
|
STATES
WHICH PASSED ON THE Weeks DOCTRINE FOR THE FIRST TIME |
|
AFTER
THE Weeks DECISION AND IN DOING SO REJECTED IT. |
|
|
of Texas, or of the Constitution of the
United States of |
|
America, shall be admitted in evidence
against the accused |
|
on the trail of any criminal case."
Texas Laws 1925, |
|
c. 49, as amended, 2 Vernon's Tex. Stat.,
1948 (Code |
|
of Crim. Proc.), Art. 727a. |
|
|
TABLE F. |
|
STATES WHICH, AFTER THE Weeks DECISION, OVERRULED OR |
|
DISTINGUISHED PRIOR CONTRARY DECISIONS. |
|
IDAHO |
Idaho
expressly refused to follow the Weeks decision in State |
|
v. Myers, 36 Idaho 396, 211 P. 440, but
repudiated the |
|
Myers case and adopted the federal rule in
State v. |
|
Arregui, 44 Idaho 43, 254 P. 788 |
ILL. |
After
two cases following the former state rule, Illinois |
|
adopted the federal rule in People v.
Castree, 311 Ill. 392, |
|
143 N. E. 112. |
MICH. |
People v. Marxhausen, 204 Mich. 559, 171 N.
W. 557 (dis- |
|
tinguishing earlier cases on the ground
that in them no |
|
preliminary motion to suppress had been
made). |
MO. |
State v. Graham, 295 Mo. 695, 247 S. W. 194,
supported |
|
the old rule in a dictum, but the federal
rule was adopted |
|
in State v. Owens, 302 Mo. 348, 259 S. W.
100 (dis- |
|
tinguishing earlier cases on the ground
that in them no |
|
preliminary motion to dismiss had been
made). |
MONT. |
State ex re. King v. District Court, 70
Mont. 191, 224 P. |
|
862. |
OKLA. |
Gore v. State, 24 Okla. Cr. 394, 218 P. 545. |
S.D. |
State v. Gooder, 57 S.D. 619, 234 N. W. 610.
But cf. |
|
S.D. Laws 1935, c. 96, now S.D. Code § 34.1102 (1939), |
|
amending Rev. Code 1919, § 4606 (all evidence admis- |
[*37]
TABLE F -- Continued. |
|
STATES
WHICH, AFTER THE Weeks DECISION, OVERRULED OR |
|
DISTINGUISHED
FROM PRIOR CONTRARY DECISIONS. |
|
|
sible under a valid search warrant is
admissible notwith- |
|
standing defects in the issuance of the
warrant). |
TENN. |
Hughes v. State, 145 Tenn. 544, 238 S. W.
588 (distinguish- |
|
ing Cohn v. State, supra, Table A). |
WASH. |
State v. Gibbons, 118 Wash. 171, 203 P. 390. |
W.
VA. |
State v. Andrews, 91 W. Va. 720, 114 S. E.
257 ( distinguish- |
|
ing earlier cases). |
|
|
TABLE G. |
|
STATES WHICH, AFTER THE Weeks DECISION, REVIEWED PRIOR CON- |
|
TRARY DECISIONS AND IN SO DOING ADHERED TO THOSE DECISIONS. |
|
ALA. |
Banks v. State, 207 Ala. 179, 93 So. 293. |
ARK. |
Benson v. State, 149 Ark. 633, 233 S. W.
758. |
CONN. |
State v. Reynolds, 101 Conn. 224, 125 A.
636. |
GA. |
Jackson v. State, 156 Ga. 647, 119 S. E.
525. |
KAN. |
State v. Johnson, 116 Kan. 58, 226 P. 245. |
ME. |
State v. Schoppe, 113 Me. 10, 16, 92 A. 867,
869 (alterna- |
|
tive holding, not noticing Weeks). |
MD. |
Meisinger v. State, 155 Md. 195, 141 A. 536,
142 A. 190. |
|
But cf. Md. Laws 1929, c. 194, as amended,
Md. Code |
|
Ann., Art. 35, § 5 (1947) Supp.) (in trial of misdemeanors, |
|
evidence obtained by illegal search and
seizure is inad- |
|
missible. |
MASS. |
Commonwealth v. Wilkins, 243 Mass. 356, 138
N. E. 11. |
MINN. |
State v. Pluth, 157 Minn. 145, 195 N. W.
789. |
NEB. |
Billings v. State, 109 Neb. 596, 191 N. W.
721. |
N.H. |
State v. Agalos, 79 N.H. 241, 242, 107 A.
314, 315 (not |
|
noticing Weeks). |
N.
Y. |
People v. Dfore, 242 N. Y. 13, 150 N. E.
585, People v. |
|
Richter's Jewelers, 291 N. Y. 161, 169, 51
N. E. 2d 690, |
|
693 (holding that adoption of Amendment to
State Con- |
|
|
TABLE
G -- Continued |
|
STATES
WHICH, AFTER THE Weeks DECISION, REVIEWED PRIOR CON- |
|
TRARY
DECISION AND IN SO DOING ADHERED TO THOSE DECISIONS. |
|
|
stitution in same language as Civil Rights
Law construed |
|
in the Defore case is not occasion for
changing interpre- |
|
tation, especially since proceedings of the
convention |
|
which framed the amendment show that no
change was |
|
intended). |
N.
C. |
State v. Simmons, 183 N. C. 684, 110 S. E.
591 (distinguish- |
|
ing between evidentiary article and corpus
delicti). |
ORE. |
See
State v. Folkes, 174 Ore. 568, 588-89, 150 P. 2d 17, 25. |
|
But see State v. Laundy, 103 Ore. 443,
493-95, 204 P. |
|
958, 974-75. |
S.
C. |
After
granting a motion to return illegally seized property |
|
in Blacksburg v. Beam, 104 S. C. 146, 88 S.
E. 441, South |
|
Carolina reaffirmed its agreement with the
general rule in |
|
State v. Green, 121 S. C. 230, 114 S. E.
317. |
VT. |
State v. Stacy, 104 Vt. 379, 401, 160 A.
257, 266. |
[*38]
TABLE H. |
|
STATE WHICH HAS REPUDIATED ITS PRIOR FORMULATION |
|
OF THE Weeks DOCTRINE. |
|
IOWA |
State v. Rowley, 197 Iowa 977, 195 N. W. 881
(withdrawing |
|
earlier opinion in 187 N. W. 7). |
TABLE I.
SUMMARY OF PRESENT POSITION OF
STATES WHICH HAVE
PASSED ON THE Weeks DOCTRINE.
(a) State that reject Weeks:
Ala., Ariz., Ark., Calif., Colo., Conn., Del., Ga., Iowa, Kan., La.,
Me., Md., Mass., Minn., Neb., Nev., N.H., N. J., N.M., N. Y.,
N. C., N.D., Ohio, Ore., Pa., S. C., Texas, Utah, Vt., Va.
(b) States that are in agreement with Weeks:
Fla., Idaho, Ill., Ind., Ky., Mich., Miss., Mo., Mont., Okla., S.D.,
Tenn., Wash., W. Va., Wis., Wyo.
[*39]
TABLE J. |
|
JURISDICTIONS OF THE UNITED KINGDOM AND THE BRITISH COM- |
|
MONWEALTH OF NATIONS WHICH HAVE HELD ADMISSIBLE |
|
EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE. |
|
AUSTRALIA |
Miller
v. Noblet, [1927] S.A.S.R. 385. |
|
|
CANADA |
|
ALTA. |
Rex v. Nelson, [1922] 2 W.W.R. 381, 69
D.L.R. 180. |
MAN. |
Rex
v. Duroussel, 41 Man. 15, [1933] 2 D.L.R. 446. |
ONT. |
Regina v. Doyle, 12 Ont. 347. |
SASK. |
Rex
v. Kostachuk, 24 Sask. 485, 54 Can. C.C. 189. |
|
|
ENGLAND |
See
Elias v. Pasmore, [1934] 2 K.B. 164. |
|
|
INDIA |
|
ALL. |
Ali
Ahmad Khan v. Emperor, 81 I.C. 615 (1). |
CAL. |
Baldeo
Bin v. Emperor, 142 I.C. 639. |
RANG. |
Chwa
Hum Htive v. Emperor, 143 I.C. 824. |
|
|
SCOTLAND |
See
Hodgson v. Macpherson, [1913] S. C. (J.) 68, 73. |
CONCURBY:
BLACK
CONCUR:
[**1367]
[***1792] MR. JUSTICE BLACK,
concurring.
[***HR5A] In this case petitioner was convicted of a
crime in a state court on evidence obtained by a search and seizure conducted
in a manner that this Court has held "unreasonable" and therefore in
violation of the Fourth Amendment. And under a rule of evidence adopted by this
Court evidence so obtained by federal officers cannot be used against
defendants in federal courts. 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 be a plain
implication of the Court's opinion that the federal exclusionary rule is [*40]
not a command of the Fourth Amendment but is a judicially created rule
of evidence which Congress might negate.
See McNabb v. United States, 318 U.S. 332. This leads me
to concur in the Court's judgment of
affirmance.
It is not amiss to repeat my
belief that the Fourteenth Amendment was intended to make the Fourth Amendment
in its entirety applicable to the states.
The Fourth Amendment was designed to protect people against unrestrained
searches and seizures by sheriffs, policemen and other law enforcement
officers. Such protection is an
essential in a free society. And I am
unable to agree that the protection of people from over-zealous or ruthless
state officers is any less essential in a country of "ordered
liberty" than is the protection of people from over-zealous or ruthless
federal officers. Certainly there are
far more state than federal enforcement officers and their activities, up to
now, have more frequently and closely touched the intimate daily lives of
people than have the activities of federal
[**1368] officers. A state officer's "knock at the door . .
. as a prelude to a search, without authority of law," may be, as our
experience shows, just as ominous to "ordered liberty" as though the
knock were made by a federal officer.
DISSENTBY:
DOUGLAS; MURPHY; RUTLEDGE
DISSENT:
[**1372contd]
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MR. JUSTICE DOUGLAS, dissenting.
[***HR5B] I believe for the reasons stated by MR.
JUSTICE BLACK in his dissent in Adamson
v. California, 332 U.S. 46, 68, that the Fourth Amendment is applicable
to the States. I agree with MR. JUSTICE
MURPHY that the evidence obtained in violation of it must be excluded in
state prosecutions as well as in federal prosecutions, since in absence of that
rule of evidence the Amendment would have no effective sanction. I also agree with him that under that [*41]
test this evidence was improperly admitted and that the judgments of
conviction must be reversed.
[**1369contd]
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MR. JUSTICE MURPHY, with whom MR.
JUSTICE RUTLEDGE joins, dissenting.
It is disheartening to find so
much that is right in an opinion which seems to me so fundamentally wrong. Of course I agree with the Court that the
Fourteenth Amendment prohibits activities which are proscribed by the search
and seizure clause of the Fourth Amendment. See my dissenting views, and those
of MR. JUSTICE BLACK, in Adamson v. California, 332 U.S. 46, 68,
123. Quite apart from the blanket application of the Bill of Rights to the
States, a devotee of [***1793] democracy would ill suit his name were he to
suggest that his home's protection against unlicensed governmental invasion was
not "of the very essence of a
scheme of ordered liberty." Palko v. Connecticut, 302 U.S.
319, 325. It is difficult for me to understand how the Court can go this far
and yet be unwilling to make the step which can give some meaning to the
pronouncements it utters.
Imagination and zeal may invent a
dozen methods to give content to the commands of the Fourth Amendment. But this
Court is limited to the remedies currently available. It cannot legislate the ideal system. If we would attempt the enforcement of the
search and seizure clause in the ordinary case today, we are limited to three
devices: judicial exclusion of the illegally obtained evidence; criminal
prosecution of violators; and civil action against violators in the action of
trespass.
Alternatives are deceptive. Their very statement conveys the impression
that one possibility is as effective as the next. In this case their statement is
blinding. For there is but one
alternative to the rule of exclusion.
That is no sanction at all.
[*42]
This has been perfectly clear since 1914, when a unanimous Court decided
Weeks v. United States, 232 U.S. 383, 393. "If letters and
private documents can thus be seized and held and used in evidence against a citizen accused of
an offense," we said, "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 from the Constitution." "It reduces the Fourth Amendment to
a form of words." Holmes, J., for the Court, in Silverthorne Lumber Co.
v. United States, 251 U.S. 385, 392.
Today the Court wipes those statements
from the books with its bland citation of "other remedies." Little
need be said concerning the possibilities of criminal prosecution. 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 violations of the search and seizure
clause during a raid the District Attorney or his associates have ordered. n1
But there is an appealing ring in another alternative. A trespass action for damages is a venerable
means of securing reparation
[**1370] for unauthorized
invasion of the home. Why not put the
old writ to a new use? When the Court
cites cases permitting the action, the remedy seems complete.
n1 See Pound, Criminal Justice in America (New York, 1930):
"Under our legal system the way of the prosecutor is hard, and the need of
'getting results' puts pressure upon prosecutors to . . . indulge in that
lawless enforcement of law which produces a vicious circle of disrespect for
law." P. 186.
And note the statement of the Wickersham Commission,
with reference to arrests: ". . . in case of persons of no influence or
little or no means the legal restrictions are not likely to give an officer
serious trouble." II National Commission on Law Observance and Enforcement,
Report on Criminal Procedure (1931), p. 19.
But what an illusory remedy this
is, if by "remedy" we mean a positive deterrent to police and
prosecutors [*43] tempted to violate the Fourth Amendment. The
appealing ring softens when we recall that in a trespass action the measure of
damages is simply the extent of the injury to physical property. If the officer searches with care, he can
avoid all but nominal damages -- a penny, or a dollar. Are punitive damages possible? Perhaps.
But a few states permit none, whatever the circumstances. n2 In those
that do, the plaintiff must show the real ill will or [***1794]
malice of the defendant, n3 and surely it is not unreasonable to assume
that one in honest pursuit of crime bears no malice toward the search
victim. If that burden is carried,
recovery may yet be defeated by the rule that there must be physical damages
before punitive damages may be awarded. n4 In addition, some states limit
punitive damages to the actual expenses of litigation. See 61 Harv. L. Rev. 113, 119-120. Others
demand some arbitrary ratio between actual and punitive damages before a
verdict may stand. See Morris, Punitive
Damages in Tort Cases, 44 Harv. L. Rev. 1173, 1180-1181. Even assuming the
ill will of the officer, his reasonable
grounds for belief that the home he searched harbored evidence of crime is
admissible in mitigation of punitive damages. Gamble v. Keyes, 35
S. D. 644, 153 N. W. 888; Simpson v. McCaffrey, 13 Ohio 508. The
bad reputation of the plaintiff is likewise admissible. Banfill v. Byrd,
122 Miss. 288, 84 So. 227. If the evidence seized was actually used at a trial,
that fact has been [*44] held a complete justification of the search,
and a defense against the trespass action.
Elias v. Pasmore [1934] 2 K. B. 164. And even if the
plaintiff hurdles all these obstacles, and gains a substantial verdict, the
individual officer's finances may well make the judgment useless -- for the
municipality, of course, is not liable without its consent. Is it surprising that there is so little in
the books concerning trespass actions for violation of the search and seizure
clause?
n2 See McCormick, Damages, § 78. See Willis, Measure of Damages When
Property is Wrongfully Taken by a Private Individual, 22 Harv. L. Rev. 419.
n3 Id., §
79. See Fennemore v. Armstrong, 29 Del. 35, 96 A. 204.
n4 "It is a well settled and almost universally
accepted rule in the law of damages that a finding of exemplary damages must be
predicated upon a finding of actual damages." 17 Iowa L. Rev. 413, 414.
This appears to be an overstatement. See
McCormick, supra, § 83;
Restatement IV, Torts, § 908, comment c.
The conclusion is inescapable that
but one remedy exists to deter violations of the search and seizure
clause. That is the rule which excludes
illegally obtained evidence. Only by exclusion can we impress upon the zealous prosecutor
that violation of the Constitution will do him no good. And only when that point is driven home can
the prosecutor be expected to emphasize the importance of observing
constitutional demands in his instructions to the police.
If proof of the efficacy of the
federal rule were needed, there is testimony in abundance in the recruit
training programs and in-service courses provided the police in states which
follow the federal rule. n5 St. Louis, for example, demands extensive training
in the rules of search and seizure, with emphasis upon the ease with which a case may collapse if it depends
upon [**1371] evidence obtained [*45]
unlawfully. Current court
decisions are digested and read at roll calls.
The same general pattern prevails in Washington, D. C. n6 In Dallas,
officers are thoroughly briefed and instructed that "the courts will
follow the rules very closely and will detect any frauds." n7 In
Milwaukee, a stout volume on the law of arrest and search and seizure is made
the [***1795] basis of extended instruction. n8 Officer
preparation in the applicable rules in Jackson, Mississippi, has included the
lectures of an Associate Justice of the Mississippi Supreme Court. The instructions on evidence and search and
seizure given to trainees in San Antonio carefully note the rule of exclusion
in Texas, and close with this statement: "Every police officer should know
the laws and the rules of evidence. Upon
knowledge of these facts determines whether the . . . defendant will be
convicted or acquitted. . . . When you
investigate a case . . . remember throughout your investigation that only
admissible evidence can be used."
n5 The material which follows is gleaned from letters
and other material from Commissioners of Police and Chiefs of Police in
twenty-six cities. Thirty-eight large
cities in the United States were selected at random, and inquiries directed
concerning the instructions provided police on the rules of search and seizure.
Twenty-six replies have been received to date.
Those of any significance are mentioned in the text of this
opinion. The sample is believed to be
representative, but it cannot, of course, substitute for a thoroughgoing
comparison of present-day police procedures by a completely objective observer. A study of this kind would be of inestimable
value.
n6 E. g., Assistant Superintendent Truscott's
letter to the Washington Police Force of January 3, 1949, concerning McDonald
v. United States, 335 U.S. 451.
n7 Recently lectures have included two pages of
discussion of the opinions in Harris v. United States, 331 U.S.
145.
n8 Chief of Police John W. Polcyn notes, in a Foreword
to the book, that officers were often not properly informed with respect to
searches and seizures before thoroughgoing instruction was undertaken. One of their fears was that of "losing
their cases in court, only because they neglected to do what they might have
done with full legal sanction at the time of the arrest, or did what they had
no legal right to do at such time."
But in New York City, we are
informed simply that "copies of the State Penal Law and Code of Criminal
Procedure" are given to officers, and that they are "kept
advised" that illegally obtained evidence may be admitted in New York
courts. In Baltimore, a "Digest of
Laws" is distributed, and it is made clear that the [*46]
statutory section excluding evidence "is limited in its application to the trial of
misdemeanors. . . . It would appear . .
. that . . . evidence illegally obtained may still be admissible in the trial
of felonies." In Cleveland, recruits and other officers are told of the
rules of search and seizure, but "instructed that it is admissible in the
courts of Ohio. The Ohio Supreme Court
has indicated very definitely and clearly that Ohio belongs to the
'admissionist' group of states when evidence obtained by an illegal search is
presented to the court." A similar pattern emerges in Birmingham, Alabama.
The contrast between states with
the federal rule and those without it is thus a positive demonstration of its
efficacy. There are apparent exceptions
to the contrast -- Denver, for example, appears to provide as comprehensive a
series of instructions as that in Chicago, although Colorado permits
introduction of the evidence and Illinois does not. And, so far as we can determine from letters,
a fairly uniform standard of officer instruction appears in other cities,
irrespective of the local rule of evidence.
But the examples cited above serve to ground an assumption that has
motivated this Court since the Weeks case: that this is an area in which judicial action has
positive effect upon the breach of law; and that, without judicial action,
there are simply no effective sanctions presently available.
I cannot believe that we should
decide due process questions by simply taking a poll of the rules in various
jurisdictions, even if we follow the Palko "test." Today's
decision will do inestimable harm to the cause of fair police methods in our
cities and states. Even more important,
perhaps, it must have tragic effect upon public respect for our judiciary. For the Court now allows what is indeed
shabby business: lawlessness by officers of the law.
[*47]
Since the evidence admitted was secured in violation of the Fourth
Amendment, the judgment should be reversed.
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MR. JUSTICE RUTLEDGE, dissenting.
"Wisdom too often never
comes, and so one ought not to reject it merely because it comes late."
Similarly, one should not reject a piecemeal wisdom, merely because it hobbles
toward the truth with backward glances.
Accordingly, although I think that all "the specific guarantees of
the Bill of Rights should be carried over intact into the first section of the
Fourteenth Amendment," Adamson v.
California, 332 U.S. 46,
[***1796] dissenting opinion at
124, I welcome the fact that the Court, in its slower progress toward this
goal, today finds the substance of the Fourth Amendment "to be implicit in
the concept of ordered liberty, and thus, through the Fourteenth Amendment, . .
. valid as against the states." Palko v. Connecticut, 302
U.S. 319, 325.
But I reject the Court's
simultaneous conclusion that the mandate embodied in the Fourth Amendment,
although binding on the states, does not carry with it the one sanction --
exclusion of evidence taken in violation of the Amendment's terms -- failure to
observe which means that "the protection of the Fourth Amendment . . .
might as well be stricken from the Constitution." Weeks v. United
States, 232 U.S. 383, 393. For I agree with my brother MURPHY's
demonstration that the Amendment without the sanction is a dead letter. Twenty-nine years ago this Court, speaking
through Justice Holmes, refused to permit the Government to subpoena
documentary evidence which it had stolen, copied and then returned, for the
reason that such a procedure "reduces the Fourth Amendment to a form of
words." Silverthorne Lumber Co. v.
United States, 251 U.S. 385, 392. But the version of the Fourth
Amendment today held [*48] applicable to the states hardly rises to the
dignity of a form of words; at best it is a pale and frayed carbon copy of the
original, bearing little resemblance to the Amendment the fulfillment of whose
command I had heretofore thought to be "an indispensable need for a
democratic society." Harris v. United States, 331 U.S. 145,
dissenting opinion at 161.
[***HR5C] I also reject any intimation that Congress
could validly enact legislation permitting the introduction in federal courts
of evidence seized in violation of the Fourth Amendment. I had thought that
issue settled by this Court's invalidation on dual grounds, in Boyd v. United
States, 116 U.S. 616, of a federal statute which in effect required the
production of evidence thought probative by Government counsel -- the Court
there holding the statute to be "obnoxious to the prohibition of the
Fourth Amendment of the Constitution, as well as of the Fifth." Id.
at 632. See Adams v. New York, 192 U.S. 585, 597, 598. The view
that the Fourth Amendment itself forbids the introduction of evidence illegally
obtained in federal prosecutions is one
of long standing and firmly established.
See Olmstead v. United States, 277 U.S. 438, 462. It is
too late in my judgment to question it now.
We apply it today in Lustig v. United States, post, p. 74.
As Congress and this Court are, in
my judgment, powerless to permit the admission in federal courts of evidence
seized in defiance of the Fourth Amendment, so I think state legislators and
judges -- if subject to the Amendment, as I believe them to be -- may not lend
their offices to the admission in state courts of evidence thus seized. Compliance with the Bill of Rights betokens
more than lip service.
[**1369]
The Court makes the illegality of this search and seizure its
inarticulate premise of decision. I
acquiesce in that premise and think the convictions should be reversed.
MR. JUSTICE MURPHY joins in this
opinion.