In a prosecution in a state court for a state crime, the
Fourteenth Amendment of the Federal Constitution does not forbid
the admission of relevant evidence even though obtained by an
unreasonable search and seizure. Pp.
338 U. S.
25-33.
(a) Arbitrary intrusion into privacy by the police is prohibited
by the Due Process Clause of the Fourteenth Amendment. Pp.
338 U. S.
27-28.
(b) While the doctrine of
Weeks v. United States,
232 U. S. 383,
making evidence secured in violation of the Fourth Amendment
inadmissible in federal courts, is adhered to, it is not imposed on
the States by the Fourteenth Amendment. Pp.
338 U. S.
28-33.
117 Colo. 279, 321, 187 P.2d 926, 928, affirmed.
Judgments of conviction in two criminal prosecutions in a state
court were sustained by the State Supreme Court against claims of
denial of rights under the Federal Constitution. 117 Colo. 279,
321, 187 P.2d 926, 928. This Court granted certiorari. 333 U.S.
879.
Affirmed, p.
338 U. S. 33.
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
Page 338 U. S. 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 U.S. 879.
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 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. California, 110 U.
S. 516;
Twining v. New Jersey, 211 U. S.
78;
Brown v. Mississippi, 297 U.
S. 278;
Palko v. Connecticut, 302 U.
S. 319. Only the other day, the Court reaffirmed this
rejection after thorough reexamination of the scope and function of
the Due Process Clause of the Fourteenth Amendment.
Adamson v.
California, 332 U. S. 46. The
issue is closed.
For purposes of ascertaining the restrictions which the Due
Process Clause imposed upon the States in the enforcement of their
criminal law, we adhere to the views expressed in
Palko v.
Connecticut, supra, 302 U. S. 319.
That decision speaks to us with the great weight of the authority,
particularly in matters of civil liberty, of a court that included
Mr. Chief Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone
and Mr. Justice Cardozo, to name only the dead. In rejecting the
suggestion that the Due Process Clause incorporated the original
Bill of Rights, Mr. Justice Cardozo reaffirmed on behalf of
that
Page 338 U. S. 27
Court a different but deeper and more pervasive conception of
the Due Process Clause. This Clause exacts from the States for the
lowliest and the most outcast all that is "implicit in the concept
of ordered liberty." 302 U.S. at
302 U. S.
325.
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. New Orleans, 96 U. S. 97,
96 U. S. 104.
This was the Court's insight when first called upon to consider the
problem; to this insight, the Court has, on the whole, been
faithful as case after case has come before it since
Davidson
v. New Orleans was decided.
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
Page 338 U. S. 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 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. United States, supra, this Court held that,
in a federal prosecution the Fourth Amendment barred the use of
evidence secured through an illegal search and seizure. This ruling
was made for the first time in 1914. It was not derived from the
explicit requirements of the Fourth Amendment; it was not based on
legislation expressing Congressional policy in the enforcement of
the Constitution. The decision was a matter of judicial
implication. Since then, it has been frequently applied, and we
stoutly adhere to it. But the immediate question is whether the
basic right to protection against arbitrary intrusion by the police
demands the exclusion of logically relevant evidence obtained by an
unreasonable search and seizure because, in a federal prosecution
for a federal crime, it would be excluded. As a matter of inherent
reason, one would suppose this to be an issue as to which men with
complete devotion to the protection of the right
Page 338 U. S. 29
of privacy might give different answers. When we find that, in
fact, most of the English-speaking world does not regard as vital
to such protection the exclusion of evidence thus obtained, we must
hesitate to treat this remedy as an essential ingredient of the
right. The contrariety of views of the States is particularly
impressive in view of the careful reconsideration which they have
given the problem in the light of the
Weeks decision.
"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 338 U.S.
25apptaba|>Appendix, Table A.)"
" (b) Of these, 1 State anticipated the
Weeks doctrine.
(
338 U.S.
25apptabb|>Table B.)"
"II. Since the
Weeks decision, 47 States all told have
passed on the
Weeks doctrine. (
338 U.S.
25apptabc|>Table C.)"
" (a) Of these, 20 passed on it for the first time."
"~ (1) Of the foregoing States, 6 followed the
Weeks
doctrine. (
338 U.S.
25apptabd|>Table D.)"
"~ (2) Of the foregoing States, 14 rejected the
Weeks
doctrine. (
338 U.S.
25apptabe|>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. (
338 U.S.
25apptabf|>Table F.)"
"~ (2) Of these, 16 States adhered to their prior decisions
against
Weeks. (
338 U.S.
25apptabg|>Table G.)"
" (c) Of these, 1 State repudiated its prior formulation of the
Weeks doctrine. (
338 U.S.
25apptabh|>Table H.)"
"III. As of today, 31 States reject the
Weeks doctrine,
16 States are in agreement with it. (
338 U.S.
25apptabi|>Table I.) "
Page 338 U. S. 30
"IV. Of 10 jurisdictions within the United Kingdom and the
British Commonwealth of Nations which have passed on the question,
none has held evidence obtained by illegal search and seizure
inadmissible. (
338 U.S.
25apptabj|>Table J.)"
The jurisdictions which have rejected the
Weeks
doctrine have not left the right to privacy without other means of
protection. [
Footnote 1]
Indeed, the exclusion of evidence
Page 338 U. S. 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 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. [
Footnote
2] We cannot brush aside the experience of States which deem
the incidence of such
Page 338 U. S. 32
conduct by the police too slight to call for a deterrent remedy
not by way 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
Page 338 U. S. 33
remote authority pervasively exerted throughout the country.
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.
[
Footnote 1]
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;
Kretabiel 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 Mass. 178;
State v. Mann, 27 N.C. 45.
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. § 1 1905 (1934). Some statutes more broadly penalize
unlawful searches.
E.g., 18 U.S.C. (1946 ed.) § 53a;
Idaho Code Ann. §§ 17-1004, 17-1024 (1932); Minn.Stat.
§§ 613.54, 621.17 (1945); Va.Code Ann. § 4822d
(Michie, 1942); Wash.Rev.Stat.Ann. §§ 2240-1, 2240-2.
Virginia also makes punishable one who issues a general search
warrant or a warrant unsupported by affidavit. Va.Code Ann. §
4822e (Michie, 1942). A few States have provided statutory civil
remedies.
See, e.g., Ga.Code Ann. § 27-301 (1935);
Ill.Rev.Stat., c. 38, § 698 (Smith-Hurd, 1935); Miss.Code Ann.
§ 1592 (1942). And in one State, misuse of a search warrant
may be an. abuse of process punishable as contempt of court.
See Mich.Stat.Ann. § 27.511 (1938).
[
Footnote 2]
"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. United States and cases
which followed it] do not bind us, for they construe provisions of
the Federal Constitution, the Fourth and Fifth Amendments, not
applicable to the States. Even though not binding, they merit our
attentive scrutiny. . . ."
"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 today 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
Adams case [176 N.Y. 351,
68 N.E. 636] strikes a balance between opposing interests."
242 N.Y. at 19, 20, 24-25, 150 N.E. at 586-87, 587, 588-89.
|
338 U.S.
25apptaba|
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. State, 104 Ala. 35, 16 So. 85.
ARK.
Starchman v. State, 62 Ark. 538, 36 S.W. 940.
CONN.
State v. Griswold, 67 Conn. 290, 34 A. 1046.
GA.
Williams v. State, 100 Ga. 511, 28 S.E. 624.
IDAHO
State v. Bond, 12 Idaho 424, 439, 86 P. 43,
47.
ILL.
Siebert v. People, 143 Ill. 571, 583, 32 N.E. 431,
434.
KAN.
State v. Miller, 63 Kan. 62, 64 P. 1033.
ME.
See State v . Gorham, 65 Me. 270, 272.
MD.
Lawrence v. State, 10.3
Id. 17,:35, 63 A.
96, 103.
Page 338 U. S. 34
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. l.
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.
|
338 U.S.
25apptabb|
TABLE B
STATE WHICH HAD FORMULATED THE
WEEKS DOCTRINE
BEFORE THE
WEEKS DECISION
IOWA
State v. Sheridan, 121 Iowa 164, 96 N.W. 730.
|
338 U.S.
25apptabc|
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).
Page 338 U. S. 35
|
338 U.S.
25apptabd|
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.
|
338 U.S.
25apptabe|
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 has 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 amendment
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. Lindusay, 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
Page 338 U. S. 36
of Texas, or of the Constitution of the United States of
America, shall be admitted in evidence against the accused
on the trial of any criminal case." Texas Laws 1925, c. 49,
as amended, 2 Vernon's Tex.Stat., 1948 (Code of Crim.Proc.),
Art. 727a.
UTAH
State v. Aime, 62 Utah 476, 220 P. 704.
VA.
Hall v. Commonwealth, 138 Va. 727, 121 S.E.
154.
|
338 U.S.
25apptabf|
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.
Arregi, 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. Marchausen, 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
(distinguishing
earlier cases on the ground that, in them, no preliminary
motion to dismiss had been made).
MONT.
State ex rel. 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 admissible
Page 338 U. S. 37
under a valid search warrant is admissible notwithstanding
defects in the issuance of the warrant).
TENN.
Hughes v. State, 145 Tenn. 544, 238 S.W. 588
(distinguishing
Cohn v. State, supra, 338 U.S.
25apptaba|>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).
|
338 U.S.
25apptabg|
TABLE G
STATES WHICH, AFTER THE WEEKS DECISION, REVIEWED
PRIOR CONTRARY
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, 1 19 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 inadmissible).
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. Defore, 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-
Page 338 U. S. 38
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 articles 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.
|
338 U.S.
25apptabh|
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).
|
338 U.S.
25apptabi|
TABLE I
SUMMARY OF PRESENT POSITION OF STATES WHICH HAVE
PASSED ON THE WEEKS DOCTRINE
(a) States 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.
Page 338 U. S. 39
|
338 U.S.
25apptabj|
TABLE J
JURISDICTIONS OF THE UNITED KINGDOM AND THE BRITISH
COMMONWEALTH
OF NATIONS WHICH HAVE HELD ADMISSIBLE EVIDENCE OBTAINED
BY
I
LLEGAL 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.
Rec 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.
MR. JUSTICE BLACK, concurring.
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,
332 U. S. 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
Page 338 U. S. 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 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.
MR. JUSTICE DOUGLAS, dissenting.
I believe, for the reasons stated by MR. JUSTICE BLACK in his
dissent in
Adamson v. California, 332 U. S.
46,
332 U. S. 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
Page 338 U. S. 41
test, this evidence was improperly admitted, and that the
judgments of conviction must be reversed.
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,
332 U. S. 68,
123. Quite apart from the blanket application of the Bill of Rights
to the States, a devotee of 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,
302 U. S. 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.
Page 338 U. S. 42
This has been perfectly clear since 1914, when a unanimous Court
decided
Weeks v. United States, 232 U.
S. 383,
232 U. S. 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,
251 U. S.
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. [
Footnote 2/1] But there is an appealing
ring in another alternative. A trespass action for damages is a
venerable means of securing reparation 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.
But what an illusory remedy this is if, by "remedy," we mean a
positive deterrent to police and prosecutors
Page 338 U. S. 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.
[
Footnote 2/2] In those that do,
the plaintiff must show the real ill will or malice of the
defendant, [
Footnote 2/3] 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.
[
Footnote 2/4] 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
Page 338 U. S. 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?
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. [
Footnote 2/5] 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 evidence obtained
Page 338 U. S. 45
unlawfully. Current court decisions are digested and read at
roll calls. The same general pattern prevails in Washington, D.C.
[
Footnote 2/6] In Dallas, officers
are thoroughly briefed and instructed that "the courts will follow
the rules very closely, and will detect any frauds." [
Footnote 2/7] In Milwaukee, a stout volume
on the law of arrest and search and seizure is made the basis of
extended instruction. [
Footnote
2/8] 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."
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
Page 338 U. S. 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.
Page 338 U. S. 47
Since the evidence admitted was secured in violation of the
Fourth Amendment, the judgment should be reversed.
[
Footnote 2/1]
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.
[
Footnote 2/2]
See McCormick, Damages, § 78.
See Willis,
Measure of Damages When Property is Wrongfully Taken by a
Private Individual, 22 Harv.L.Rev. 419.
[
Footnote 2/3]
Id., § 79.
See Fennemore v. Armstrong, 29
Del. 35, 96 A. 204.
[
Footnote 2/4]
"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 in overstatement.
See McCormick,
supra, § 83; Restatement IV,
Torts, § 908, comment
c.
[
Footnote 2/5]
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.
[
Footnote 2/6]
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.
[
Footnote 2/7]
Recently, lectures have included two pages of discussion of the
opinions in
Harris v. United States, 331 U.
S. 145.
[
Footnote 2/8]
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."
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,
dissenting opinion at
332 U. S. 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,
302 U. S.
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,
232 U. S. 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,
251 U. S. 392.
But the version of the Fourth Amendment today held
Page 338 U. S. 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
331 U. S.
161.
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
116 U. S. 632.
See Adams v. New York, 192 U. S. 585,
192 U. S. 597,
192 U. S. 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,
277 U. S. 462.
It is too late, in my judgment, to question it now. We apply it
today in
Lustig v. United States, post, p.
338 U. S. 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.
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.