|Warden v. Hayden
[ Brennan ]
[ Fortas ]
[ Douglas ]
Warden v. Hayden
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
MR. JUSTICE DOUGLAS, dissenting.
We start with the Fourth Amendment, which provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. [p313]
This constitutional guarantee, now as applicable to the States (Mapp v. Ohio, 367 U.S. 643) as to the Federal Government, has been thought, until today, to have two faces of privacy:
(1) One creates a zone of privacy that may not be invaded by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.
(2) A second creates a zone of privacy that may be invaded either by the police in hot pursuit or by a search incident to arrest or by a warrant issued by a magistrate on a showing of probable cause.
The first has been recognized from early days in Anglo-American law. Search warrants, for seizure of stolen property, though having an ancient lineage, were criticized even by Coke. Institutes Bk. 4, pp. 176-177.
As stated by Lord Camden in Entick v. Carrington, 19 How.St.Tr. 1029, 1067, even warrants authorizing seizure of stolen goods were looked upon with disfavor but "crept into the law by imperceptible practice." By the time of Charles II, they had burst their original bounds and were used by the Star Chamber to find evidence among the files and papers of political suspects. Thus, in the trial of Algernon Sidney in 1683 for treason, "papers, which were said to be found in my [Sidney's] house, were produced as another witness" (9 How.St.Tr. 818, 901) and the defendant was executed. Id. at 906-907. From this use of papers as evidence, there grew up the practice of the Star Chamber empowering a person
to search in all places, where books were printing, in order to see if the printer had a licence, and if upon such search he found any books which he suspected to be libelous against the church or state, he was to seize them, and carry them before the proper magistrate.
Entick v. Carrington, supra, at 1069. Thus, the general warrant became a powerful instrument [p314] in proceedings for seditious libel against printers and authors. Ibid. John Wilkes led the campaign against the general warrant. Boyd v. United States, 116 U.S. 616, 625. Wilkes won (Entick v. Carrington, supra, decided in 1765), and Lord Camden's opinion not only outlawed the general warrant (id. at 1072), but went on to condemn searches "for evidence" with or without a general warrant:
There is no process against papers in civil causes. It has been often tried, but never prevailed. Nay, where the adversary has, by force or fraud, got possession of your own proper evidence, there is no way to get it back but by action.
In the criminal law, such a proceeding was never heard of, and yet there are some crimes, such for instance, as murder, rape, robbery, and housebreaking, to say nothing of forgery and perjury, that are more atrocious than libelling. But our law has provided no paper search in these cases to help forward the conviction.
Whether this procedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say.
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.
Id. at 1073.
Thus, Lord Camden decided two things: (1) that searches for evidence violated the principle against self-incrimination; (2) that general warrants were void. [p315]
This decision, in the very forefront when the Fourth Amendment was adopted, underlines the construction that it covers something other than the form of the warrant [n1] and creates a zone of privacy which no government official may enter.
The complaint of Bostonians, while including the general warrants, went to the point of police invasions of personal sanctuaries:
"A List of Infringements and Violations of Rights" drawn up by the Boston town meeting late in 1772 alluded to a number of personal rights which had allegedly been violated by agents of the crown. The list included complaints against the writs of assistance which had been employed by royal officers in their searches for contraband. The Bostonians complained that
our houses and even our bed chambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants.
Rutland, The Birth of the Bill of Rights 25 (1955).
The debates concerning the Bill of Rights did not focus on the precise point with which we here deal. There was much talk about the general warrants and the fear of them. But there was also some reference to the sanctity of one's home and his personal belongings, even [p316] including the clothes he wore. Thus, in Virginia, Patrick Henry said:
The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes, for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained within proper bounds.
3 Elliot's Debates 448-449.
This indicates that the Fourth Amendment has the dual aspect that I have mentioned. Certainly the debates nowhere suggest that it was concerned only with regulating the form of warrants.
This is borne out by what happened in the Congress. In the House, the original draft read as follows:
The right of the people to be secured in their persons, houses, papers, and effects, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and not particularly describing the place to be searched and the persons or things to be seized.
1 Annals of Cong. 754.
That was amended to read "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches," etc. Ibid. Mr. Benson, Chairman of a Committee of Three to arrange the amendments, objected to the words "by warrants issuing" and proposed to alter the amendment so as to read "and no warrant shall issue." Ibid. But Benson's amendment was defeated. Ibid. And if the [p317] story had ended there, it would be clear that the Fourth Amendment touched only the form of the warrants and the manner of their issuance. But when the Benson Committee later reported the Fourth Amendment to the House, it was in the form he had earlier proposed, and was then accepted. 1 Annals of Cong. 779. The Senate agreed. Senate Journal August 25, 1789.
Thus, it is clear that the Fourth Amendment has two faces of privacy, a conclusion emphasized by Lasson, The History and Development of the Fourth Amendment to the United States Constitution 103 (1937):
As reported by the Committee of Eleven and corrected by Gerry, the Amendment was a one-barrelled affair, directed apparently only to the essentials of a valid warrant. The general principle of freedom from unreasonable search and seizure seems to have been stated only by way of premise, and the positive inhibition upon action by the Federal Government limited consequently to the issuance of warrants without probable cause, etc. That Benson interpreted it in this light is shown by his argument that, although the clause was good as far as it went, it was not sufficient, and by the change which he advocated to obviate this objection. The provision as he proposed it contained two clauses. The general right of security from unreasonable search and seizure was given a sanction of its own, and the amendment thus intentionally given a broader scope. That the prohibition against unreasonable searches' was intended, accordingly, to cover something other than the form of the warrant is a question no longer left to implication to be derived from the phraseology of the Amendment. [p318]
Lord Camden's two-fold classification of zones of privacy was said by Cooley to be reflected in the Fourth Amendment:
The warrant is not allowed for the purpose of obtaining evidence of an intended crime, but only after lawful evidence of an offence actually committed. Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him, except in a few special cases where that which is the subject of the crime is supposed to be concealed and the public or the complainant has an interest in it or in its destruction.
Constitutional Limitations 431-432 (7th ed.1903). And that was the holding of the Court in Boyd v. United States, 116 U.S. 616, decided in 1886. Mr. Justice Bradley reviewed British history, including Entick v. Carrington, supra, and American history under the Bill of Rights, and said:
The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other, it is not.
Id. at 623.
What Mr. Justice Bradley said about stolen or forfeited goods or contraband is, of course, not accurate if read to mean that they may be seized at any time even without a warrant or not incident to an arrest that is lawful. The right to seize contraband is not absolute. If the search leading to discovery of an illicit article is [p319] not incidental to a lawful arrest or not authorized by a search warrant, the fact that contraband is discovered does not make the seizure constitutional. Trupiano v. United States, 334 U.S. 699, 705; McDonald v. United States, 335 U.S. 451; Henry v. United States, 361 U.S. 98, 103; Beck v. Ohio, 379 U.S. 89; Aguilar v. Texas, 378 U.S. 108.
That is not our question. Our question is whether the Government, though armed with a proper search warrant or though making a search incident to an arrest, may seize, and use at the trial, testimonial evidence, whether it would otherwise be barred by the Fifth Amendment or would be free from such strictures. The teaching of Boyd is that such evidence, though seized pursuant to a lawful search, is inadmissible.
That doctrine had its full flowering in Gouled v. United States, 255 U.S. 298, where an opinion was written by Mr. Justice Clarke for a unanimous Court that included both Mr. Justice Holmes and Mr. Justice Brandeis. The prosecution was for defrauding the Government under procurement contracts. Documents were taken from defendant's business office under a search warrant and used at the trial as evidence against him. Stolen or forged papers could be so seized, the Court said; so could lottery tickets; so could contraband; so could property in which the public had an interest, for reasons tracing back to warrants allowing the seizure of stolen property. But the papers or documents fell in none of those categories and the Court therefore held that, even though they had been taken under a warrant, they were inadmissible at the trial as not even a warrant, though otherwise proper and regular, could be used "for the purpose of making search to secure evidence" of a crime. Id. at 309. The use of those documents against the accused might, of course, violate the Fifth Amendment. Id. at 311. But whatever may be the intrinsic nature of the evidence, [p320] the owner is then "the unwilling source of the evidence" (id. at 306), there being no difference so far as the Fifth Amendment is concerned
whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers.
We have, to be sure, breached that barrier, Schmerber v. California, 384 U.S. 757, being a conspicuous example. But I dissented then, and renew my opposing view at this time. That which is taken from a person without his consent and used as testimonial evidence violates the Fifth Amendment.
That was the holding in Gouled, and that was the line of authority followed by Judge Simon Sobeloff, writing for the Court of Appeals for reversal in this case. 363 F.2d 647. As he said, even if we assume that the search was lawful, the articles of clothing seized were of evidential value only and under Gouled could not be used at the trial against petitioner. As he said, the Fourth Amendment guarantees the right of the people to be secure "in their persons, houses, papers, and effects, against unreasonable searches and seizures." Articles of clothing are covered as well as papers. Articles of clothing may be of evidential value as much as documents or papers.
Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in United States v. Poller, 43 F.2d 911, 914:
[I]t is only fair to observe that the real evil aimed at by the Fourth Amendment is the search itself, that invasion of a man's privacy which consists in rummaging about among his effects to secure evidence against him. If the search is permitted at all, perhaps it does not make so much difference what is taken away, since the officers will ordinarily [p321] not be interested in what does not incriminate, and there can be no sound policy in protecting what does. Nevertheless, limitations upon the fruit to be gathered tend to limit the quest itself. . . .
The right of privacy protected by the Fourth Amendment relates in part, of course, to the precincts of the home or the office. But it does not make them sanctuaries where the law can never reach. There are such places in the world. A mosque in Fez, Morocco, that I have visited, is, by custom, a sanctuary where any refugee may hide, safe from police intrusion. We have no such sanctuaries here. A policeman in "hot pursuit" or an officer with a search warrant can enter any house, any room, any building, any office. The privacy of those places is, of course, protected against invasion except in limited situations. The full privacy protected by the Fourth Amendment is, however, reached when we come to books, pamphlets, papers, letters, documents, and other personal effects. Unless they are contraband or instruments of the crime, they may not be reached by any warrant, nor may they be lawfully seized by the police who are in "hot pursuit." By reason of the Fourth Amendment, the police may not rummage around among these personal effects, no matter how formally perfect their authority may appear to be. They may not seize them. If they do, those articles may not be used in evidence. Any invasion whatsoever of those personal effects is "unreasonable" within the meaning of the Fourth Amendment. That is the teaching of Entick v. Carrington, Boyd v. United States, and Gouled v. United States.
Some seek to explain Entick v. Carrington on the ground that it dealt with seditious libel and that any search for political tracts or letters under our Bill of Rights would be unlawful per se because of the First [p322] Amendment and therefore "unreasonable" under the Fourth. That argument misses the main point. A prosecution for seditious libel would, of course, be unconstitutional under the First Amendment, because it bars laws "abridging the freedom of speech, or of the press." The First Amendment also has a penumbra, for, while it protects only "speech" and "press," it also protects related rights such as the right of association. See NAACP v. Alabama, 357 U.S. 449, 460, 462; Bates v. Little Rock, 361 U.S. 516, 523; Shelton v. Tucker, 364 U.S. 479, 486; Louisiana v. NAACP, 366 U.S. 293, 296, and NAACP v. Button, 371 U.S. 415, 430-431. So it could be held, quite apart from the Fourth Amendment, that any probing into the area of opinions and beliefs would be barred by the First Amendment. That is the essence of what we said in Watkins v. United States, 354 U.S. 178, 197:
Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.
But the privacy protected by the Fourth Amendment is much wider than the one protected by the First. Boyd v. United States was a forfeiture proceeding under the customs revenue law, and the paper held to be beyond the reach of the Fourth Amendment was an invoice covering the imported goods. 116 U.S. at 617-619, 638. And as noted, Gouled v. United States involved a prosecution for defrauding the Government under procurement contracts and the papers held protected against [p323] seizure, even under a technically proper warrant, were (1) an unexecuted form of contract between defendant and another person; (2) a written contract signed by defendant and another person, and (3) a bill for disbursement and professional services rendered by the attorney to the defendant. 255 U.S. at 306-307.
The constitutional philosophy is, I think, clear. The personal effects and possessions of the individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the long arm of the law, from any rummaging by police. Privacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses. The article may be a nondescript work of art, a manuscript of a book, a personal account book, a diary, invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill of Rights believed that every individual needs both to communicate with others and to keep his affairs to himself. That dual aspect of privacy means that the individual should have the freedom to select for himself the time and circumstances when he will share his secrets with others and decide the extent of that sharing. [n2] This is his prerogative [p324] not the States'. The Framers, who were as knowledgeable as we, knew what police surveillance meant and how the practice of rummaging through one's personal effects could destroy freedom.
It was in that tradition that we held in Griswold v. Connecticut, 381 U.S. 479, that lawmakers could not, as respects husband and wife at least, make the use of contraceptives a crime. We spoke of the pronouncement in Boyd v. United States that the Fourth and Fifth Amendments protected the person against all governmental invasions "of the sanctity of a man's home and the privacies of life." 116 U.S. at 630. We spoke of the "right to privacy" of the Fourth Amendment upheld by Mapp v. Ohio, 367 U.S. 643, 656, and of the many other controversies "over these penumbral rights of ‘privacy and repose.'" 381 U.S. at 485. And we added:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral [p325] loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
Id. at 485-486.
This right of privacy, sustained in Griswold, is kin to the right of privacy created by the Fourth Amendment. That there is a zone that no police can enter -- whether, in "hot pursuit" or armed with a meticulously proper warrant -- has been emphasized by Boyd and by Gouled. They have been consistently and continuously approved. [n3] I would adhere to them, and leave with the individual the choice of opening his private effects (apart from contraband and the like) to the police or keeping their contents a secret and their integrity inviolate. The existence of that choice is the very essence of the right of privacy. Without it, the Fourth Amendment and the Fifth are ready instruments for the police state that the Framer sought to avoid.
1. The Virginia Declaration of Rights, June 12, 1776, in its Article 10, proclaimed only against "general warrants." See Rutland, The Birth of the Bill of Rights 232 (1955). And the definition of the general warrant included not only a license to search for everything in a named place, but to search all and any places in the discretion of the officers. Frisbie v. Butler, 1 Kirby 213 (Conn.). See generally Quincy's Mass. Rep. 1761-1772 Appendix I for the forms of these writs.
2. This concept of the right of privacy protected by the Fourth Amendment is mirrored in the cases involving collateral aspects of the problem presented in this case:
It has, similarly, been held that a defendant cannot complain of the seizure of books and papers neither his own, nor in his possession. It is also the well settled rule that, where the papers are public records, the defendant's custody will not avail him against their seizure. Where papers are taken out of the custody of one not their owner, it seems that such person can object if there has been no warrant, or if the warrant was directed to him, but not if the warrant is directed to the owner. If the defendant's property is lawfully out of his possession, it makes no difference by what means it comes into the Government's hands, as there has been no compulsion exercised upon him. But the privilege extends to letters in the mails. The privilege extends to the office, as well as the home.
On the other hand, to enable a person to claim the privilege, it is not necessary that he be a party to any pending criminal proceeding. He can object to the illegal seizure of his own property and resist a forcible production of it even if he is only called as a witness.
Nor must a person be a citizen to be entitled to the protection of the Fourth Amendment. . . .
Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361, 375-376.
3. See, e.g., Carroll v. United States, 267 U.S. 132, 149-150; United States v. Lefkowitz, 285 U.S. 452, 464-466; Davis v. United States, 328 U.S. 582, 590, n. 11; Harris v. United States, 331 U.S. 145, 154; United States v. Rabinowitz, 339 U.S. 56, 64, n. 6; Abel v. United States, 362 U.S. 217, 234-235.