|Zurcher v. Stanford Daily
[ White ]
[ Powell ]
[ Stewart ]
[ Stevens ]
Zurcher v. Stanford Daily
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MR. JUSTICE STEVENS, dissenting.
The novel problem presented by this case is an outgrowth of the profound change in Fourth Amendment law that occurred in 1967, when Warden v. Hayden, 387 U.S. 294, was decided. The question is what kind of "probable cause" must be established in order to obtain a warrant to conduct an unannounced search for documentary evidence in the private files of a person not suspected of involvement in any criminal activity. The Court holds that a reasonable belief that the files contain relevant evidence is a sufficient justification. This holding rests on a misconstruction of history and of the Fourth Amendment's purposely broad language.
The Amendment contains two Clauses, one protecting "persons, houses, papers, and effects, against unreasonable searches and seizures," the other regulating the issuance of warrants:
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.
When these words were written, the procedures of the Warrant Clause were not the primary protection against oppressive searches. It is unlikely that the authors expected private papers ever to be among the "things" that could be seized with a warrant, for, only a few years earlier, in 1765, Lord Camden had delivered his famous opinion denying that any magistrate had power to authorize the seizure of private papers. [n1] Because all such [p578] seizures were considered unreasonable, the Warrant Clause was not framed to protect against them.
Nonetheless, the authors of the Clause used words that were adequate for situations not expressly contemplated at the time. As Mr. Justice Black noted, the Amendment does not "attempt to describe with precision what was meant by its words ‘probable cause;'" the words of the Amendment are deliberately "imprecise and flexible." [n2] And MR. JUSTICE STEWART, when confronted with the problem of applying the probable cause standard in an unprecedented situation, observed that "[t]he standard of reasonableness embodied in the Fourth Amendment demands that the showing of justification match the degree of intrusion." [n3] Today, for the first time, the Court has an opportunity to consider the kind of showing that is necessary to justify the vastly expanded "degree of intrusion" upon privacy that is authorized by the opinion in Warden v. Hayden, supra.
In the pre-Hayden era, warrants were used to search for contraband, [n4] weapons, and plunder, but not for "mere evidence." [n5] [p579] The practical effect of the rule prohibiting the issuance of warrants to search for mere evidence was to narrowly limit not only the category of objects, but also the category of persons and the character of the privacy interests that might be affected by an unannounced police search.
Just as the witnesses who participate in an investigation or a trial far outnumber the defendants, the persons who possess evidence that may help to identify an offender, or explain an aspect of a criminal transaction, far outnumber those who have custody of weapons or plunder. Countless law-abiding citizens -- doctors, lawyers, merchants, customers, bystanders -- may have documents in their possession that relate to an ongoing criminal investigation. The consequences of subjecting this large category of persons to unannounced police searches are extremely serious. The ex parte warrant procedure enables the prosecutor to obtain access to privileged documents that could not be examined if advance notice gave the custodian an opportunity to object. [n6] The search for the documents described in a warrant may involve the inspection [p580] of files containing other private matter. [n7] The dramatic character of a sudden search may cause an entirely unjustified injury to the reputation of the persons searched. [n8] [p581]
Of greatest importance, however, is the question whether the offensive intrusion on the privacy of the ordinary citizen is justified by the law enforcement interest it is intended to vindicate. Possession of contraband or the proceeds or tools of crime gives rise to two inferences: that the custodian is involved in the criminal activity, and that, if given notice of an intended search, he will conceal or destroy what is being sought. The probability of criminal culpability justifies the invasion of his privacy; the need to accomplish the law enforcement purpose of the search justifies acting without advance notice and by force, if necessary. By satisfying the probable cause standard appropriate for weapons or plunder, the police effectively demonstrate that no less intrusive method of investigation will succeed.
Mere possession of documentary evidence, however, is much less likely to demonstrate that the custodian is guilty of any wrongdoing or that he will not honor a subpoena or informal request to produce it. In the pre-Hayden era, evidence of that kind was routinely obtained by procedures that presumed that the custodian would respect his obligation to obey subpoenas and to cooperate in the investigation of crime. These procedures had a constitutional dimension. For the innocent citizen's interest in the privacy of his papers and possessions is an aspect of liberty protected by the Due Process Clause of the Fourteenth Amendment. Notice and an opportunity to object to the deprivation of the citizen's liberty are, therefore, the constitutionally mandated general rule. [n9] An [p582] exception to that rule can only be justified by strict compliance with the Fourth Amendment. That Amendment flatly prohibits the issuance of any warrant unless justified by probable cause.
A showing of probable cause that was adequate to justify the issuance of a warrant to search for stolen goods in the 18th century does not automatically satisfy the new dimensions of the Fourth Amendment in the post-Hayden era. [n10] In Hayden itself, the Court recognized that the meaning of probable cause should be reconsidered in the light of the new authority it conferred on the police. [n11] The only conceivable justification for an unannounced search of an innocent citizen is the fear that, if notice were given, he would conceal or destroy the object of the search. Probable cause to believe that the [p583] custodian is a criminal, or that he holds a criminal's weapons, spoils, or the like, justifies that fear, [n12] and therefore such a showing complies with the Clause. But if nothing said under oath in the warrant application demonstrates the need for an unannounced search by force, the probable cause requirement is not satisfied. In the absence of some other showing of reasonableness, [n13] the ensuing search violates the Fourth Amendment.
In this case, the warrant application set forth no facts suggesting that respondents were involved in any wrongdoing or would destroy the desired evidence if given notice of what the police desired. I would therefore hold that the warrant did not comply with the Warrant Clause and that the search was unreasonable within the meaning of the first Clause of the Fourth Amendment.
I respectfully dissent.
Papers are the owner's goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would be subversive of all the comforts of society.
Entick v. Carrington, 19 How.St.Tr. 1009, 1066 (1766).
Obviously, those who wrote this Fourth Amendment knew from experience that searches and seizures were too valuable to law enforcement to prohibit them entirely, but also knew at the same time that, while searches or seizures must not be stopped, they should be slowed down, and warrants should be issued only after studied caution. This accounts for use of the imprecise and flexible term, "unreasonable," the key word permeating this whole Amendment. Also it is noticeable that this Amendment contains no appropriate language, as does the Fifth, to forbid the use and introduction of search and seizure evidence even though secured "unreasonably." Nor does this Fourth Amendment attempt to describe with precision what was meant by its words, "probable cause;" nor by whom the "Oath or affirmation" should be taken; nor what it need contain.
Berger v. New York, 388 U.S. 41, 75 (Black, J., dissenting).
3. Id. at 69 (STEWART, J., concurring in result).
4. It was stated in 1967 that about 95% of the search warrants obtained by the office of the District Attorney for New York County were for the purpose of seizing narcotics and arresting the possessors. See T. Taylor, Two Studies in Constitutional Interpretation 48, and n. 85 (1969).
5. Until 1967, when Warden v. Hayden was decided, our cases interpreting the Fourth Amendment had drawn a
"distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and, on the other hand, those objects which may validly be seized, including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime."
See Warden v. Hayden, 387 U.S. at 295-296, quoting from Harris v. United States, 331 U.S. 145, 154.
6. The suggestion that, instead of setting standards, we should rely on the good judgment of the magistrate to prevent abuse represents an abdication of the responsibilities this Court previously accepted in carefully supervising the performance of the magistrate's warrant-issuing function. See Aguilar v. Texas, 378 U.S. 108, 111.
There are three considerations which support the conclusion that private papers are central to the concerns of the fourth amendment and which suggest that, in accord with the amendment's privacy rationale, private papers should occupy a type of preferred position. The first consideration is the very personal, private nature of such papers. This rationale has been cogently articulated on a number of occasions. Private papers have been said to be "little more than an extension of [the owner's] person," their seizure "a particularly abrasive infringement of privacy," and their protection "impelled by the moral and symbolic need to recognize and defend the private aspect of personality." In this sense, every governmental procurement of private papers, regardless of how it is accomplished, is uniquely intrusive. In addition to the nature of the papers themselves, a second reason for according them strict protection concerns the nature of the search for private papers. The fundamental evil at which the fourth amendment was directed was the sweeping, exploratory search conducted pursuant to a general warrant. A search involving private papers, it has been noted, invariably partakes of a similar generality, for
even a search for a specific, identified paper may involve the same rude intrusion [of an exploratory search] if the quest for it leads to an examination of all of a man's private papers.'
Thus, both their contents and the inherently intrusive nature of a search for them militates toward the position that private papers are deserving of the fullest possible fourth amendment protection. Finally, not only is a search involving private papers highly intrusive in fourth amendment terms, but the nature of the papers themselves may implicate the policies of other constitutional protections. In addition to the "intimate" relation with fifth amendment values, the obtaining of private papers by the government touches upon the first amendment and the generalized right of privacy.
McKenna, The Constitutional Protection of Private Papers: The Role of a Hierarchical Fourth Amendment, 53 Ind. L.J. 55, 68-69 (1977-1978) (footnotes omitted).
Whether the search be for rubbish or narcotics, both innocent and guilty will suffer the loss of the proprietary right of privacy. The search for evidence of crime, however, threatens the innocent with an injury not recognized in the cases. That is the damage to reputation resulting from an overt manifestation of official suspicion of crime. Connected with loss of reputation, standing, or credit may be humiliation and other mental suffering. The interests here at stake are the same which are recognized in the common law actions for defamation and malicious prosecution. Indeed, the loss of reputation and the humiliation resulting from the search of one's home for evidence of a heinous crime may greatly exceed the injury caused by an ill-grounded prosecution for a minor offense.
Comment, Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U.Chi.L.Rev. 664, 701 (1961) (footnotes omitted).
9. Only with great reluctance has this Court approved the seizure even of refrigerators or washing machines without notice and a prior adversary hearing; in doing so, the Court has relied on the distinction between loss of property, which can often be easily compensated, and loss of less tangible but more precious rights: "‘[w]here only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process.'" Mitchell v. W. T. Grant Co., 416 U.S. 600, 611, quoting from Phillips v. Commissioner, 283 U.S. 589, 596-597. See also Michigan v. Tyler, ante at 514 (opinion of STEVENS, J.).
10. Even before Hayden had repudiated the mere evidence rule, scholars had recognized that such a change in the scope of the prosecutor's search authority would require a fresh examination of the probable cause requirement. It was noted that the personal character of some evidentiary documents would "justify stringent limitation, if not total prohibition, of their seizure by exercise of official authority." Taylor, supra, n. 4, at 66.
It is ironic that the Court today should adopt a rigid interpretation of the Warrant Clause to uphold this search when the Court was prepared only a few years ago to rely on the flexibility of the Clause to create an entirely new warrant in order to preserve the government's power to conduct unannounced inspections of citizens' homes and businesses. See Camara v. Municipal Court, 387 U.S. 523, 534-535, and 538.
There must, of course, be a nexus -- automatically provided in the case of fruits, instrumentalities or contraband -- between the item to be seized and criminal behavior. Thus, in the case of "mere evidence," probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required.
387 U.S. at 307.
12. "The danger is all too obvious that a criminal will destroy or hide evidence or fruits of his crime if given any prior notice." Fuentes v. Shevin, 407 U.S. 67, 93-94, n. 30.
13. Cf. Marshall v. Barlow's, Inc., ante at 336-339, and nn. 9-11 (STEVENS, J., dissenting).