Vous êtes sur la page 1sur 26

Westlaw Delivery Summary Report for PATRON ACCESS,-

Date/Time of Request: Friday, June 11, 2010 12:52 Eastern


Client Identifier: PATRON ACCESS
Database: SCTFIND
Citation Text: 81 S.Ct. 1684
Lines: 1548
Documents: 1
Images: 0

DEALS WITH THE EXCLUSIONARY RULE

The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
West and their affiliates.
81 S.Ct. 1684 Page 1
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

170BVII(B) Review of Decisions of Courts


of Appeals
Supreme Court of the United States 170Bk460 Review on Certiorari
Dollree MAPP, etc., Appellant, 170Bk461 k. Questions Not Presented
v. Below or in Petition for Certiorari. Most Cited
OHIO. Cases
No. 236. (Formerly 170Bk452, 106k383(1))
Reasonableness of a search is in first instance for
Argued March 29, 1961.
trial court to determine. U.S.C.A.Const. Amend. 4.
Decided June 19, 1961.
Rehearing Denied Oct. 9, 1961. [3] Criminal Law 110 394.4(1)
See 82 S.Ct. 23. 110 Criminal Law
110XVII Evidence
Prosecution for possession and control of obscene
110XVII(I) Competency in General
material. An Ohio Common Pleas Court rendered
110k394 Evidence Wrongfully Obtained
judgment, and the defendant appealed. The Ohio
110k394.4 Unlawful Search or Seizure
Supreme Court, 170 Ohio St. 427, 166 N.E.2d 387,
110k394.4(1) k. In General. Most
affirmed the judgment, and the defendant again ap-
Cited Cases
pealed. The Supreme Court, Mr. Justice Clark, held
All evidence obtained by searches and seizures in
that evidence obtained by unconstitutional search
violation of the Constitution is constitutionally in-
was inadmissible and vitiated conviction.
admissible in state courts. U.S.C.A.Const. Amend.
Reversed and remanded. 4.

Mr. Justice Harlan, Mr. Justice Frankfurter and Mr. [4] Constitutional Law 92 4655
Justice Whittaker dissented.
92 Constitutional Law
West Headnotes 92XXVII Due Process
92XXVII(H) Criminal Law
[1] Criminal Law 110 394.4(1) 92XXVII(H)5 Evidence and Witnesses
92k4655 k. Improperly Obtained Evid-
110 Criminal Law ence; Suppression. Most Cited Cases
110XVII Evidence (Formerly 92k266(5), 92k266)
110XVII(I) Competency in General
110k394 Evidence Wrongfully Obtained Criminal Law 110 394.4(1)
110k394.4 Unlawful Search or Seizure
110k394.4(1) k. In General. Most 110 Criminal Law
Cited Cases 110XVII Evidence
Rule excluding illegally seized evidence is of con- 110XVII(I) Competency in General
stitutional origin. U.S.C.A.Const. Amend. 4. 110k394 Evidence Wrongfully Obtained
110k394.4 Unlawful Search or Seizure
[2] Federal Courts 170B 461 110k394.4(1) k. In General. Most
Cited Cases
170B Federal Courts Evidence obtained by unconstitutional search was
170BVII Supreme Court inadmissible, in state prosecution, and vitiated con-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 2
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

viction, under the Fourteenth Amendment, overrul- 92 Constitutional Law


ing Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 92XXVII Due Process
1359, 93 L.Ed. 1782. R.C.Ohio § 2905.34; 92XXVII(G) Particular Issues and Applica-
U.S.C.A.Const. Amends. 4, 14. tions
92XXVII(G)22 Privacy and Sexual Mat-
[5] Constitutional Law 92 3854 ters
92k4450 k. In General. Most Cited
92 Constitutional Law
Cases
92XXVII Due Process
(Formerly 92k274(5), 92k254)
92XXVII(A) In General
The right to privacy embodied in Fourth Amend-
92k3848 Relationship to Other Constitu-
ment is enforceable against states in same manner
tional Provisions; Incorporation
and to like effect as other basic rights secured by
92k3854 k. Fourth Amendment. Most
the due process clause. U.S.C.A.Const. Amends. 4,
Cited Cases
14.
(Formerly 92k319.5(1), 92k274(5), 92k274(2),
**1685 Mr. *643 A. L. Kearns, Cleveland, Ohio,
92k266(5), 92k255, 349k7(2))
for appellant.
The Fourth Amendment's right of privacy is en-
forceable against the states through the due process Mr. Bernard A. Berkman, Cleveland, Ohio, for
clause. U.S.C.A.Const. Amends. 4, 14. American Civil Liberties Union and the Ohio Civil
Liberties Union, as amici curiae.
[6] Criminal Law 110 522(1)
Mrs. ,Gertrude Bauer Mahon, Cleveland, Ohio, for
110 Criminal Law
appellee.
110XVII Evidence
110XVII(T) Confessions
110k522 Threats and Fear Mr. Justice CLARK delivered the opinion of the
110k522(1) k. In General. Most Cited Court.
Cases
The rule requiring exclusion of a coerced confes- Appellant stands convicted of knowingly having
sion overrides relevant rules of evidence, regardless had in her possession and under her control certain
of the incidence of such conduct by police, slight or lewd and lascivious books, pictures, and photo-
frequent. graphs in violation of s 2905.34 of Ohio's Revised
FN1
Code. As officially stated in the syllabus to its
[7] Courts 106 489(1) opinion, the Supreme Court of Ohio found that her
conviction was valid though ‘based primarily upon
106 Courts the introduction in evidence of lewd and lascivious
106VII Concurrent and Conflicting Jurisdiction books and pictures unlawfully seized during an un-
106VII(B) State Courts and United States lawful search of defendant's home * * *.’ 170 Ohio
Courts St. 427-428, 166 N.E.2d 387, 388.
106k489 Exclusive or Concurrent Juris-
diction FN1. The statute provides in pertinent part
106k489(1) k. In General. Most Cited that
Cases
Healthy federalism depends upon avoidance of ‘No person shall knowingly * * * have in
needless conflict between state and federal courts. his possession or under his control an ob-
scene, lewd, or lascivious book (or) * * *
[8] Constitutional Law 92 4450 picture * * *.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 3
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

‘Whoever violates this section shall be Appellant, in handcuffs, was then forcibly taken up-
fined not less than two hundred nor more stairs to her bedroom where the officers searched a
than two thousand dollars or imprisoned dresser, a chest of drawers, a closet and some suit-
not less than one nor more than seven cases. They also looked into a photo album and
years, or both.’ through personal papers belonging to the appellant.
The search spread to the rest of the second floor in-
*644 On May 23, 1957, three Cleveland police of- cluding the child's bedroom, the living room, the
ficers arrived at appellant's residence in that city kitchen and a dinette. The basement of the building
pursuant to information that ‘a person (was) hiding and a trunk found therein were also searched. The
out in the home, who was wanted for questioning in obscene materials for possession of which she was
connection with a recent bombing, and that there ultimately convicted were discovered in the course
was a large amount of policy paraphernalia being of that widespread search.
hidden in the home.’ Miss Mapp and her daughter
by a former marriage lived on the top floor of the FN2. A police officer testified that ‘we did
two-family dwelling. Upon their arrival at that pry the screen door to gain entrance’; the
house, the officers knocked on the door and deman- attorney on the scene testified that a po-
ded entrance but appellant, after telephoning her at- liceman ‘tried * * * to kick in the door’
torney, refused to admit them without a search war- and then ‘broke the glass in the door and
rant. They advised their headquarters of the situ- somebody reached in and opened the door
ation and undertook a surveillance of the house. and let them in’; the appellant testified that
‘The back door was broken.’
The officers again sought entrance some three
hours later when four or more additional officers At the trial no search warrant was produced by the
arrived on the **1686 scene. When Miss Mapp did prosecution, nor was the failure to produce one ex-
not come to the door immediately, at least one of plained or accounted for. At best, ‘There is, in the
the several doors to the house was forcibly opened record, considerable doubt as to whether there ever
FN2
and the policemen gained admittance. Mean- was any warrant for the search of defendant's
while Miss Mapp's attorney arrived, but the of- home.’ 170 Ohio St. at page 430, 166 N.E.2d at
ficers, having secured their own entry, and continu- page 389. The Ohio Supreme Court believed a
ing in their definance of the law, would permit him ‘reasonable argument’ could be made that the con-
neither to see Miss Mapp nor to enter the house. It viction should be reversed ‘because the ‘methods'
appears that Miss Mapp was halfway down the employed to obtain the (evidence) were such as to
stairs from the upper floor to the front door when ‘offend ‘a sense of justice,“’ but the court found de-
the officers, in this highhanded manner, broke into terminative the fact that the evidence had not been
the hall. She demanded to see the search warrant. A taken ‘from defendant's person by the use of brutal
paper, claimed to be a warrant, was held up by one or offensive physical force against defendant.’ 170
of the officers. She grabbed the ‘warrant’ and Ohio St. at page 431, 166 N.E.2d at pages 389-390.
placed it in her bosom. A struggle ensued in which
the officers recovered the piece of paper and as a The State says that even if the search were made
result of which they handcuffed appellant because without authority, or otherwise unreasonably, it is
she had been ‘belligerent’ *645 in resisting their of- not prevented from using the unconstitutionally
ficial rescue of the ‘warrant’ from her person. Run- seized evidence at trial, citing Wolf v. People of
ning roughshod over appellant, a policeman State of Colorado, 1949, 338 U.S. 25, at page 33,
‘grabbed’ her, ‘twisted (her) hand,’ and she ‘yelled 69 S.Ct. 1359. at page 1364, 93 L.Ed. 1782, in
(and) pleaded with him’ because ‘it was hurting.’ which this Court did indeed hold ‘that in a prosecu-
tion in a State court for a State crime the Fourteenth

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 4
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

Amendment*646 does not forbid the admission of man to accuse himself; because the neces-
evidence obtained by an unreasonable search and sary means of compelling self-accusation,
seizure.’ On this appeal, of which we have noted falling upon the innocent as well as the
probable jurisdiction, 364 U.S. 868, 81 S.Ct. 111, 5 guilty, would be both cruel and unjust; and
L.Ed.2d 90, it is urged once again that we review it should seem, that search for evidence is
FN3
that holding. disallowed upon the same principle. There
too the innocent would be confounded with
FN3. Other issues have been raised on this the guilty.’
appeal but, in the view we have taken of
the case, they need not be decided. Al- 'apply to all invasions on the part of the government
though appellant chose to urge what may and its employes of the sanctity of a man's home
have appeared to be the surer ground for and the privacies of life. It is not the breaking of his
favorable disposition and did not insist that doors, and the rummaging of his drawers, *647 that
Wolf be overruled, the amicus curiae, who constitutes the essence of the offence; but it is the
was also permitted to participate in the oral invasion of his indefeasible right of personal secur-
argument, did urge the Court to overrule ity, personal liberty and private property * * *.
Wolf. Breaking into a house and opening boxes and draw-
ers are circumstances of aggravation; but any for-
cible and compulsory extortion of a man's own
I.
testimony or of his private papers to be used as
Seventy-five years ago, in Boyd v. United States, evidence to convict him of crime or to forfeit his
1886, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. goods, is within the condemnation * * * (of those
FN4 Amendments).'
746, considering the **1687 Fourth and Fifth
Amendments as running ‘almost into each other' The Court noted that
FN5
on the facts before it, this Court held that the
'constitutional provisions for the security of person
doctrines of those Amendments
and property should be liberally construed. * * * It
FN4. ‘The right of the people to be secure is the duty of courts to be watchful for the constitu-
in their persons, houses, papers, and ef- tional rights of the citizen, and against any stealthy
fects, against unreasonable searches and encroachments thereon.' At page 635 of 116 U.S.,
seizures, shall not be violated, and no war- at page 535 of 6 S.Ct.
rants shall issue, but upon probable cause,
In this jealous regard for maintaining the integrity
supported by oath or affirmation, and par-
of individual rights, the Court gave life to Madis-
ticularly describing the place to be
on's prediction that ‘independent tribunals of justice
searched and the persons or things to be
* * * will be naturally led to resist every encroach-
seized.’
ment upon rights expressly stipulated for in the
FN5. The close connection between the Constitution by the declaration of rights.’ I Annals
concepts later embodied in these two of Cong. 439 (1789). Concluding, the Court spe-
Amendments had been noted at least as cifically referred to the use of the evidence there
early as 1765 by Lord Camden, on whose seized as ‘unconstitutional.’ At page 638 of 116
opinion in Entick v. Carrington, 19 How- U.S., at page 536 of 6 S.Ct.
ell's State Trials 1029, the Boyd court drew
Less than 30 years after Boyd, this Court, in Weeks
heavily. Lord Camden had noted, at 1073:
v. United States, 1914, 232 U.S. 383, at pages
‘It is very certain, that the law obligeth no 391-392, 34 S.Ct. 341, at page 344, 58 L.Ed. 652,

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 5
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

stated that words.’ Holmes J., Silverthorne Lumber Co. v.


United States, 1920, 251 U.S. 385, 392, 40 S.Ct.
'the 4th Amendment * * * put the courts of the 182, 183, 64 L.Ed. 319. It meant, quite simply, that
United States and Federal officials, in the exercise ‘conviction by means of unlawful seizures and en-
of their power and authority, under limitations and forced confessions * * * should find no sanction in
restraints (and) * * * forever secure(d) the people, the judgments of the courts * * *,’ Weeks v. United
their persons, houses, papers, and effects, against States, supra, 232 U.S. at page 392, 34 S.Ct. at page
all unreasonable searches and seizures under the 344, and that such evidence ‘shall not be used at
guise of law * * * and the duty of giving to it force all.’ Silverthorne Lumber Co. v. United States,
and effect is obligatory upon all entrusted under our supra, 251 U.S. at page 392, 40 S.Ct. at page 183.
Federal system with the enforcement of the laws.'
*649 [1] There are in the cases of this Court some
*648 Specifically dealing with the use of the evid- passing references to the Weeks rule as being one
ence unconstitutionally seized, the Court con- of evidence. But the plain and unequivocal lan-
cluded: guage of Weeks-and its later paraphrase in Wolf-to
‘If letters and private documents can thus be seized the effect that the Weeks rule is of constitutional
and held and used in evidence against a citizen ac- origin, remains entirely undisturbed. In Byars v.
cused of an offense, the protection of the Fourth United States, 1927, 273 U.S. 28, at pages 29-30,
Amendment declaring his right to be secure against 47 S.Ct. 248, at pages 248-249, 71 L.Ed. 520, a un-
such searches and seizures is of no value, and, so animous Court declared that ‘the doctrine (cannot)
far as those thus placed are concerned, might as * * * be tolerated under our constitutional system,
well be stricken **1688 from the Constitution. The that evidences of crime discovered by a federal of-
efforts of the courts and their officials to bring the ficer in making a search without lawful warrant
guilty to punishment, praiseworthy as they are, are may be used against the victim of the unlawful
not to be aided by the sacrifice of those great prin- search where a timely challenge has been inter-
ciples established by years of endeavor and suffer- posed.’ (Emphasis added.) The Court, in Olmstead
ing which have resulted in their embodiment in the v. United States, 1928, 277 U.S. 438, at page 462,
fundamental law of the land.’ At page 393 of 232 48 S.Ct. 564, 567, 72 L.Ed. 944, in unmistakable
U.S., at page 344 of 34 S.Ct. language restated the Weeks rule:

Finally, the Court in that case clearly stated that use ‘The striking outcome of the Weeks case and those
of the seized evidence involved ‘a denial of the which followed it was the sweeping declaration that
constitutional rights of the accused.’ At page 398 of the Fourth Amendment, although not referring to or
232 U.S., at page 346 of 34 S.Ct. Thus, in the year limiting the use of evidence in court, really forbade
1914, in the Weeks case, this Court ‘for the first its introduction if obtained by government officers
time’ held that ‘in a federal prosecution the Fourth through a violation of the amendment.’
Amendment barred the use of evidence secured
through an illegal search and seizure.’ Wolf v. In McNabb v. United States, 1943, 318 U.S. 332, at
People of State of Colorado, supra, 338 U.S. at pages 339-340, 63 S.Ct. 608, at page 612, 87 L.Ed.
page 28, 69 S.Ct. at page 1361. This Court has ever 819, we note this statement:
since required of federal law officers a strict adher- ‘(A) conviction in the federal courts, the foundation
ence to that command which this Court has held to of which is evidence obtained in disregard of liber-
be a clear, specific, and constitutionally required- ties deemed fundamental by the Constitution, can-
even if judically implied-deterrent safeguard not stand. Boyd v. United States * * * Weeks v.
without insistence upon which the Fourth Amend- United States * * *. And this Court has, on Consti-
ment would have been reduced to ‘a form of tutional grounds, set aside convictions, both in the

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 6
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

federal and state courts, which were based upon here(d)’ to the Weeks decision, the Court decided
confessions ‘secured by protracted and repeated that the Weeks exclusionary rule would not then be
questioning of ignorant and untutored persons, in imposed upon the States as ‘an essential ingredient
whose minds the power of officers was greatly of the right.’ 338 U.S. at pages 27-29, 69 S.Ct. at
magnified’*650 * * * or ‘who have been unlawfully page 1362. The Court's reasons for not considering
held incommunicado without advice of friends or essential to the *651 right to privacy, as a curb im-
counsel’ * * *.' posed upon the States by the Due Process Clause,
that which decades before had been posited as part
Significantly, in McNabb, the Court did then pass and parcel of the Fourth Amendment's limitations
on to formulate a rule of evidence, saying, ‘(i)n the upon federal encroachment of individual privacy,
view we take of **1689 the case, however, it be- were bottomed on factual considerations.
comes unnecessary to reach the Constitutional issue
(for) * * * (t)he principles governing the admissib- While they are not basically relevant to a decision
ility of evidence in federal criminal trials have not that the exclusionary rule is an essential ingredient
been restricted * * * to those derived solely from of the Fourth Amendment as the right it embodies
the Constitution.’ At pages 340-341 of 318 U.S., at is vouchsafed against the States by the Due Process
page 613 of 63 S.Ct. Clause, we will consider the current validity of the
factual grounds upon which Wolf was based.

II. The Court in Wolf first stated that ‘(t)he contrariety


of views of the States' on the adoption of the exclu-
In 1949, 35 years after Weeks was announced, this
sionary rule of Weeks was ‘particularly impressive’
Court, in Wolf v. People of State of Colorado,
FN6 ( 338 U.S. at page 29, 69 S.Ct. at page 1362); and,
supra, again for the first time, discussed the ef-
in this connection that it could not ‘brush aside the
fect of the Fourth Amendment upon the States
experience of States which deem the incidence of
through the operation of the Due Process Clause of
such conduct by the police too slight to call for a
the Fourteenth Amendment. It said:
deterrent remedy * * * by overriding the (States')
FN6. See, however, National Safe Deposit relevant rules of evidence.’ At pages 31-32 of 338
Co. v. Stead, 1914, 232 U.S. 58, 34 S.Ct. U.S., at page 1363 of 69 S.Ct. While in 1949, prior
209, 58 L.Ed. 504, and Adams v. People of to the Wolf case, almost two-thirds of the States
State of New York, 1904, 192 U.S. 585, 24 were opposed to the use of the exclusionary rule,
S.Ct. 372, 48 L.Ed. 575. now, despite the Wolf case, more than half of those
since passing upon it, by their own legislative or ju-
‘(W)e have no hesitation in saying that were a State dicial decision, have wholly or partly adopted or
affirmatively to sanction such police incursion into adhered to the Weeks rule. See Elkins v. United
privacy it would run counter to the guaranty of the States, 1960, 364 U.S. 206, Appendix, at pages
Fourteenth Amendment.’ At page 28 of 338 U.S., at 224-232, 80 S.Ct. 1437, at pages 1448-1453, 4
page 1361 of 69 S.Ct. L.Ed.2d 1669. Significantly, among those now fol-
Nevertheless, after declaring that the ‘security of lowing the rule is California, which, according to
one's privacy against arbitrary intrusion by the po- its highest court, was ‘compelled to reach that con-
lice’ is ‘implicit in ‘the concept of ordered liberty’ clusion because other remedies have completely
and as such enforceable against the States through failed to secure compliance with the constitutional
the Due Process Clause,' cf. Palko v. State of Con- provisions * * *.’ People v. Cahan, 1955, 44 Cal.2d
necticut, 1937, 302 U.S. 319, 58 S.Ct. 149, 82 434, 445, 282 P.2d 905, 911, 50 A.L.R.2d 513. In
L.Ed. 288, and announcing that it ‘stoutly ad- connection with this California case, we note that

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 7
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

the second basis elaborated in Wolf in support of its Va.Code Ann., 1960 Replacement Volume,
failure to enforce the exclusionary doctrine against s 19.1-89.
the States was that ‘other means of protection’ have
been afforded **1690 ‘the *652 right to privacy.' Criminal Liability of Officer Willfully Ex-
FN7 ceeding Authority of Search Warrant.-
338 U.S. at page 30, 69 S.Ct. at page 1362.
The experience of California that such other remed- Fla.Stat.Ann.1944, s 933.17; Iowa Code
ies have been worthless and futile is buttressed by Ann., 1950, s 751.39; Minn.Stat.Ann.1947,
the experience of other States. The obvious futility s 613.54; Nev.Rev.Stat. s 199.450;
of relegating the Fourth Amendment of the protec- N.Y.Pen.Law, s 1847, N.Y.Code
tion of other remedies has, moreover, been *653 re- Crim.Proc. s 812; N.D.Century Code
cognized by this Court since Wolf. See Irvine v. Ann.1960, ss 12-17-07, 29-29-19;
People of State of California, 1954, 347 U.S. 128, Okla.Stat.1951, Tit. 21, s 536, Tit. 22, s
137, 74 S.Ct. 381, 385, 98 L.Ed. 561. 1240; S.D.Code, 1939 (Supp.1960) s
34.9905; Tenn.Code Ann.1955, s 40-510;
FN7. Less than half of the States have any Utah Code Ann.1953, s 77-54-22.
criminal provisions relating directly to un-
reasonable searches and seizures. The pun- Criminal Liability of Officer for Search
itive sanctions of the 23 States attempting with Invalid Warrant or no Warrant.-Idaho
to control such invasions of the right of Code Ann.1948, s 18-703;
privacy may be classified as follows: Minn.Stat.Ann.1947, ss 613.53, 621.17;
Mo.Ann.Stat.1953, s 558.190;
Criminal Liability of Affiant for Malicious Mont.Rev.Codes Ann.1947, s 94-3506;
Procurement of Search Warrant.-Ala.Code, N.J.Stat.Ann.1940, s 33:1-65;
1958, Tit. 15, s 99; Alaska Comp.Laws N.Y.Pen.Law, s 1846; N.D.Century Code
Ann.1949, s 66-7-15; Ar- Ann.1960, s 12-17-06;
iz.Rev.Stat.Ann.1956, s 13-1454; Okla.Stat.Ann.1958, Tit. 21, s 535; Utah
Cal.Pen.Code s 170; Fla.Stat.1959, s Code Ann.1953, s 76-28-52; Va.Code
933.16, F.S.A.; Ga.Code Ann.1953, s Ann.1960 Replacement Volume, s 19.1-88;
27-301; Idaho Code Ann.1948, s 18-709; Wash.Rev.Code ss 10.79.040, 10.79.045.
Iowa Code Ann., 1950, s 751.38;
Minn.Stat.Ann.1947, s 613.54; [2] Likewise, time has set its face against what
Mont.Rev.Codes Ann.1947, s 94-35-122; Wolf called the ‘weighty testimony’ of People v.
Nev.Rev.Stat. ss 199.130, 199.140; Defore, 1926, 242 N.Y. 13, 150 N.E. 585. There
N.J.Stat.Ann.1940, s 33:1-64; Justice (then Judge) Cardozo, rejecting adoption of
N.Y.Penn.Law, s 1786, N.Y.Code the Weeks exclusionary rule in New York, had said
Crim.Proc. s 811; N.C.Gen.Stat.1953, s that ‘(t)he Federal rule as it stands is either too
15-27 (applies to ‘officers' only); strict or too lax.’ 242 N.Y. at page 22, 150 N.E. at
N.D.Century Code Ann.1960, ss 12-17-08, page 588. However, the force of that reasoning has
29-29-18; Okla.Stat., 1951, Tit. 21, s 585, been largely vitiated by later decisions of this
Tit. 22, s 1239; Ore.Rev.Stat. s 141.990; Court. These include the recent discarding of the
S.D.Code, 1939 (Supp.1960) s 34.9904; ‘silver platter’ doctrine which allowed federal judi-
Utah Code Ann.1953, s 77-54-21. cial use of evidence seized in violation of the Con-
stitution by state agents, Elkins v. United States,
Criminal Liability of Magistrate Issuing supra; the relaxation of the formerly strict require-
Warrant Without Supporting Affi- ments as to standing to challenge the use of evid-
davit.-N.C.Gen.Stat.1953, s 15-27; ence thus seized, so that now the procedure of ex-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 8
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

clusion, ‘ultimately referable to constitutional safe- trolling principles' as to search and seizure and the
guards,’ is available to anyone even ‘legitimately problem of admissibility ‘seemed clear’ ( 364 U.S.
on (the) premises' unlawfully searched, Jones v. at page 212, 1441 of 80 S.Ct.) until the announce-
United States, 1960, 362 U.S. 257, 266-267, 80 ment in Wolf ‘that the Due Process Clause of the
S.Ct. 725, 734, 4 L.Ed.2d 697; and finally, the for- Fourteenth Amendment does not itself require state
mulation of a method to prevent state use of evid- courts to adopt the exclusionary rule’ of the Weeks
ence unconstitutionally seized by federal agents, case. At page 213 of 364 U.S., at page 1442 of 80
Rea v. United States, 1956, 350 U.S. 214, 76 S.Ct. S.Ct. At the same time, the Court pointed out, ‘the
292, 100 L.Ed. 233. Because there can be no fixed underlying constitutional doctrine which Wolf es-
formula, we are admittedly met with ‘recurring tablished * * * that the Federal Constitution * * *
questions of the reasonableness of searches,’ but prohibits unreasonable searches and seizures by
less is not to be expected when dealing with a Con- state officers' had undermined the ‘foundation upon
stitution, and, at any rate, ‘(r) easonableness is in which the admissibility of stateseized evidence in a
the first instance for the (trial court) to determine.’ federal trial originally rested * * *.’ Ibid. The Court
**1691United States v. Rabinowitz, 1950, 339 U.S. concluded that it was therefore obliged to hold, al-
56, 63, 70 S.Ct. 430, 434, 94 L.Ed. 653. though it chose the narrower ground on which to do
so, that all evidence obtained by an unconstitutional
It, therefore, plainly appears that the factual consid- search and seizure was inadmissible in a federal
erations supporting the failure of the Wolf Court to court regardless of its source. Today we once again
include the Weeks exclusionary rule when it recog- examine Wolf's constitutional documentation of the
nized the enforceability of the right to privacy right to privacy free from unreasonable state intru-
against the States in 1949, while not basically rel- sion, and, after its dozen years on our books, are led
evant to the constitutional consideration, could not, by it to close the only *655 courtroom door remain-
in any analysis, now be deemed controlling. ing open to evidence secured by official lawless-
ness in flagrant abuse of that basic right, reserved
*654 III. to all persons as a specific guarantee against that
very same unlawful conduct. We hold that all evid-
[3][4] Some five years after Wolf, in answer to a ence obtained by searches and seizures in violation
plea made here Term after Term that we overturn of the Constitution is, by that same authority, inad-
its doctrine on applicability of the Weeks exclu- missible in a state court.
sionary rule, this Court indicated that such should
not be done until the States had ‘adequate oppor-
IV.
tunity to adopt or reject the (Weeks) rule.’ Irvine
v. People of State of California, supra, 347 U.S. at [5] Since the Fourth Amendment's right of privacy
page 134, 74 S.Ct. at page 384. There again it was has been declared enforceable against the States
said: through the Due Process Clause of the Fourteenth,
it is enforceable against them by the same sanction
‘Never until June of 1949 did this Court hold the
of exclusion as is used against the Federal Govern-
basic search-and-seizure prohibition in any way ap-
ment. Were it otherwise, then just as without the
plicable to the states under the Fourteenth Amend-
Weeks rule the assurance against unreasonable fed-
ment.’ Ibid.
eral searches and seizures would be ‘a form of
And only last Term, after again carefully re- words', valueless and undeserving of mention in a
examining the Wolf doctrine in Elkins v. United perpetual charter of inestimable human liberties, so
States, supra, the Court pointed out that ‘the con- too, without that rule the freedom from state inva-
sions of privacy would be so epemeral and so

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 9
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

neatly severed from its conceptual nexus with the of Colorado, supra, 338 U.S. at page 27, 69 S.Ct. at
freedom from all brutish means of coercing evid- page 1361. This Court has not hesitated to enforce
ence as not to merit this Court's high regard as a as strictly against the States as it does against the
freedom ‘implicit in ‘the concept of ordered Federal Government the rights of free speech and
liberty.“ At the time that the Court held in Wolf of a free press, the rights to notice and to a fair,
that the Amendment was applicable to the States public trial, including, as it does, the right not to be
through the Due Process Clause, the cases of this convicted by use of a coerced confession, however
Court, as we have seen, had steadfastly held that as logically relevant it be, and without regard to its re-
to federal officers the Fourth Amendment included liability. Rogers v. Richmond, 1961, 365 U.S.
the exclusion of the evidence seized in violation 534, 81 S.Ct. 735, 5 L.Ed.2d 760. And nothing
**1692 of its provisions. Even Wolf ‘stoutly ad- could be more certain that that when a coerced con-
hered’ to that proposition. The right to privacy, fession is involved, ‘the relevant rules of evidence’
when conceded operatively enforceable against the are overridden without regard to ‘the incidence of
States, was not susceptible of destruction by avul- such conduct by the police,’ slight or frequent. Why
sion of the sanction upon which its protection and should not the same rule apply to what is tan-
enjoyment had always been deemed dependent un- tamount to coerced testimony by way of unconstitu-
der the Boyd, Weeks and Silverthorne cases. There- tional seizure of goods, papers, effect, documents,
fore, in extending the substantive protections of due etc.? We find that, *657 as to the Federal Govern-
process to all constitutionally unreasonable ment, the Fourth and Fifth Amendments and, as to
searches-state or federal-it was *656 logically and the States, the freedom from unconscionable inva-
constitutionally necessary that the exclusion doc- sions of privacy and the freedom from convictions
trine-an essential part of the right to privacy-be also based upon coerced confessions do enjoy an
FN8
insisted upon as an essential ingredient of the right ‘intimate relation' in their perpetuation of
newly recognized by the Wolf case. In short, the ‘principles of humanity and civil liberty (secured) *
admission of the new constitutional right by Wolf * * only after years of struggle.’ Bram v. United
could not consistently tolerate denial of its most im- States, 1897, 168 U.S. 532, 543-544, 18 S.Ct. 183,
portant constitutional privilege, namely, the exclu- 187, 42 L.Ed. 568. They express ‘supplementing
sion of the evidence which an accused had been phases of the same constitutional purpose-to main-
forced to give by reason of the unlawful seizure. To tain inviolate large areas of personal privacy.’
hold otherwise is to grant the right but in reality to Feldman v. United States, 1944, 322 U.S. 487,
whthhold its privilege and enjoyment. Only last 489-490, 64 S.Ct. 1082, 1083, 88 L.Ed. 1408. The
year the Court itself recognized that the purpose of philosophy of each Amendment and of each free-
the exclusionary rule ‘is to deter-to compel respect dom is complementary to, although not dependent
for the constitutional guaranty in the only effect- upon, that of the other in its sphere of influence-the
ively available way-by removing the incentive to very least that together they assure in either sphere
disregard it.’ Elkins v. United States, supra, 364 is that no man is to be convicted on unconstitution-
U.S. at page 217, 80 S.Ct. at page 1444. al evidence. Cf. Rochin v. People of State of Cali-
fornia, 1952, 342 U.S. 165, 173, 72 S.Ct. 205, 210,
[6] Indeed, we are aware of no restraint, similar to 96 L.Ed. 183.
that rejected today, conditioning the enforcement of
any other basic constitutional right. The right to pri- FN8. But compare Waley v. Johnston, 316
vacy, no less important than any other right care- U.S. 101, 104, 62 S.Ct. 964, 965, 86 L.Ed.
fully and particularly reserved to the people, would 1302, and Chambers v. State of Florida,
stand in marked contrast to all other rights declared 309 U.S. 227, 236, 60 S.Ct. 472, 477, 84
as ‘basic to a free society.’ Wolf v. People of State L.Ed. 716, with Weeks v. United States,

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 10
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, Federal-state cooperation in the solution of crime
and Wolf v. People of State of Colorado, under constitutional standards will be promoted, if
338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. only by recognition of their now mutual obligation
to respect the same fundamental criteria in their ap-
proaches. ‘However much in a particular case in-
**1693 V.
sistence upon such rules may appear as a technical-
[7] Moreover, our holding that the exclusionary ity that inures to the benefit of a guilty person, the
rule is an essential part of both the Fourth and Four- history of the criminal law proves that tolerance of
teenth Amendments is not only the logical dictate shortcut methods in law enforcement impairs its en-
of prior cases, but it also makes very good sense. during effectiveness.’ Miller v. United States,
There is no war between the Constitution and com- 1958, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2
mon sense. Presently, a federal prosecutor may L.Ed.2d 1332. Denying shortcuts to only one of two
make no use of evidence illegally seized, but a cooperating law enforcement agencies tends natur-
State's attorney across the street may, although he ally to breed legitimate suspicion of ‘working ar-
supposedly is operating under the enforceable pro- rangements' whose results are equally tainted.
hibitions of the same Amendment. Thus the State, Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct.
by admitting evidence unlawfully seized, serves to 248, 71 L.Ed. 520; Lustig v. United States, 1949,
encourage disobedience to the Federal Constitution 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819.
which it is bound to uphold. Moreover, as was said
*659 There are those who say, as did Justice (then
in Elkins, ‘(t)he very essence of a healthy federal-
Judge) Cardozo, that under our constitutional exclu-
ism depends upon the avoidance of needless con-
sionary doctrine ‘(t)he criminal is to go free be-
flict between *658 state and federal courts.’ 364
cause the constable has blundered.’ People v. De-
U.S. at page 221, 80 S.Ct. at page 1446. Such a
fore, 242 N.Y. at page 21, 150 N.E. at page 587. In
conflict, hereafter needless, arose this very Term, in FN9
some cases this will undoubtedly be the result.
Wilson v. Schnettler, 1961, 365 U.S. 381, 81 S.Ct.
But, as was **1694 said in Elkins, ‘there is another
632, 5 L.Ed.2d 620, in which, and in spite of the
consideration-the imperative of judicial integrity.’
promise made by Rea, we gave full recognition to
364 U.S. at page 222, 80 S.Ct. at page 1447. The
our practice in this regard by refusing to restrain a
criminal goes free, if he must, but it is the law that
federal officer from testifying in a state court as to
sets him free. Nothing can destroy a government
evidence unconstitutionally seized by him in the
more quickly than its failure to observe its own
performance of his duties. Yet the double standard
laws, or worse, its disregard of the charter of its
recognized until today hardly put such a thesis into
own existence. As Mr. Justice Brandeis, dissenting,
practice. In non-exclusionary States, federal of-
said in Olmstead v. United States, 1928, 277 U.S.
ficers, being human, were by it invited to and did,
438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944: ‘Our
as our cases indicate, step across the street to the
government is the potent, the omnipresent teacher.
State's attorney with their unconstitutionally seized
For good or for ill, it teaches the whole people by
evidence. Prosecution on the basis of that evidence
its example. * * * If the government becomes a
was then had in a state court in utter disregard of
lawbreaker, it breeds contempt for law; it invites
the enforceable Fourth Amendment. If the fruits of
every man to become a law unto himself; it invites
an unconstitutional search had been inadmissible in
anarchy.’ Nor can it lightly be assumed that, as a
both state and federal courts, this inducement to
practical matter, adoption of the exclusionary rule
evasion would have been sooner eliminated. There
fetters law enforcement. Only last year this Court
would be no need to reconcile such cases as Rea
expressly considered that contention and found that
and Schnettler, each pointing up the hazardous un-
‘pragmatic evidence of a sort’ to the contrary was
certainties of our heretofore ambivalent approach.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 11
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

not wanting. Elkins v. United States, supra, 364 stitutional restraints on which the liberties of the
FN11
U.S. at page 218, 80 S.Ct. at page 1444. The Court people rest. Having once recognized that the
noted that right to privacy embodied in the Fourth Amend-
ment is enforceable against the States, and that the
FN9. As is always the case, however, state right to be secure against rude invasions of privacy
procedural requirements governing asser- by state officers is, therefore, constitutional in ori-
tion and pursuance of direct and collateral gin, we can no longer permit that right to remain an
constitutional challenges to criminal pro- empty promise. Because it is enforceable in the
secutions must be respected. We note, same manner and to like effect as other basic rights
moreover, that the class of state convic- secured by the Due Process Clause, we can no
tions possibly affected by this decision is longer permit it to be revocable at the whim of any
of relatively narrow compass when com- police officer who, in the name of law enforcement
pared with Burns v. State of Ohio, 360 itself, chooses to suspend its enjoyment. Our de-
U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209; cision, founded on reason and truth, gives to the in-
Griffin v. People of State of Illinois, 351 dividual no more than that which the Constitution
U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 and guarantees him, to the police officer no less than
Commonwealth of Pennsylvania ex rel. that to which honest law enforcement is entitled,
Herman v. Claudy, 350 U.S. 116, 76 S.Ct. and, to the courts, that judicial integrity so neces-
223, 100 L.Ed. 126. In those cases the sary in the true administration of justice.
same contention was urged and later
proved unfounded. In any case, further FN11. Cf. Marcus v. Search Warrant, etc.,
delay in reaching the present result could 367 S.Ct. 717, 81 S.Ct. 1708.
have no effect other than to compound the
difficulties. The judgment of the Supreme Court of Ohio is re-
versed and the cause remanded for further proceed-
‘The federal courts themselves have operated under ings not inconsistent with this opinion.
the exclusionary rule of Weeks for almost half a
century;*660 yet it has not been suggested either Reversed and remanded.
FN10 *661 Mr. Justice BLACK, concurring.
that the Federal Bureau of Investigation has
thereby been rendered ineffective, or that the ad- For nearly fifty years, since the decision of this
FN1
ministration of criminal justice in the federal courts Court in Weeks v. United States, federal courts
has thereby been disrupted. Moreover, the experi- have refused to permit the introduction into evid-
ence of the states is impressive * * *. The move- ence against an accused of his papers and effects
ment towards the rule of exclusion has been halting obtained by ‘unreasonable searches and seizures' in
but seemingly inexorable.’ Id., 364 U.S. at pages violation of the Fourth Amendment. In Wolf v.
218-219, 80 S.Ct. at pages 1444-1445. People of State of Colorado, decided in 1948,
however, this Court held that ‘in **1695 a prosecu-
FN10. See the remarks of Mr. Hoover, Dir- tion in a State court for a State crime the Fourteenth
ector of the Federal Bureau of Investiga- Amendment does not forbid the admission of evid-
tion, FBI Law Enforcement Bulletin, ence obtained by an unreasonable search and
FN2
September, 1952, pp. 1-2, quoted in Elkins seizure.' I concurred in that holding on these
v. United States, 364 U.S. 206, 218-219, grounds:
80 S.Ct. 1437, 1444-1445, note 8.
FN1. 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed.
[8] The ignoble shortcut to conviction left open to 652, decided in 1914.
the State tends to destroy the entire system of con-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 12
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

FN2. 338 U.S. 25, 33, 69 S.Ct. 1359, 1364, discussed this relationship and declared itself
93 L.Ed. 1782. ‘unable to perceive that the seizure of a man's
private books and papers to be used in evidence
‘For reasons stated in my dissenting opinion in against him is substantially different from compel-
Adamson v. (People of State of) California, 332 FN6
ling him to be a witness against himself.' It was
U.S. 46, 68 (67 S.Ct. 1672, 1683, 91 L.Ed. 1903), I upon this ground that Mr. Justice Rutledge largely
agree with the conclusion of the Court that the relied in his dissenting opinion in the Wolf case.
Fourth Amendment's prohibition of ‘unreasonable FN7
And, although I rejected the argument at that
searches and seizures' is enforceable against the time, its force has, for me at least, become compel-
states. Consequently, I should be for reversal of this ling with the more thorough understanding of the
case if I thought the Fourth Amendment not only problem brought on by recent cases. In the final
prohibited ‘unreasonable searches and seizures,’ analysis, it seems to me that the Boyd doctrine,
but also, of itself, barred the use of evidence so un- though perhaps not required by the express lan-
lawfully obtained. But I agree with what appears to guage of the Constitution strictly construed, is
be a plain implication of the Court's opinion that amply justified from an historical standpoint,
the federal exclusionary rule is not a command of soundly based in **1696 reason, *663 and entirely
the Fourth Amendment but is a judicially created consistent with what I regard to be the proper ap-
FN3
rule of evidence which Congress might negate.' proach to interpretation of our Bill of Rights-an ap-
proach well set out by Mr. Justice Bradley in the
FN3. Id., 338 U.S. at pages 39-40, 69 S.Ct.
Boyd case:
at page 1367.
FN4. The interrelationship between the
I am still not persuaded that the Fourth Amend-
Fourth and the Fifth Amendments in this
ment, standing alone, would be enough to bar the
area does not, of course, justify a narrow-
introduction into evidence against an accused of pa-
ing in the interpretation of either of these
pers and effects seized from him in violation of its
Amendments with respect to areas in
commands. For the Fourth Amendment does not it-
which they operate separately. See Feld-
self contain any provision expressly precluding the
man v. United States, 322 U.S. 487,
use of such evidence, and I am *662 extremely
502-503, 64 S.Ct. 1082, 1089, 88 L.Ed.
doubtful that such a provision could properly be in-
1408 (dissenting opinion); Frank v. State
ferred from nothing more than the basic command
of Maryland, 359 U.S. 360, 374-384, 79
against unreasonable searches and seizures. Reflec-
S.Ct. 804, 812-818, 3 L.Ed.2d 877
tion on the problem, however, in the light of cases
(dissenting opinion).
coming before the Court since Wolf, has led me to
conclude that when the Fourth Amendment's ban FN5. 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.
against unreasonable searches and seizures is con- 746.
sidered together with the Fifth Amendment's ban
against compelled self-incrimination, a constitu- FN6. Id., 116 U.S. at page 633, 6 S.Ct. at
tional basis emerges which not only justifies but ac- page 534.
tually requires the exclusionary rule.
FN7. 338 U.S. at pages 47-48, 69 S.Ct. at
The close interrelationship between the Fourth and pages 1368-1369.
Fifth Amendments, as they apply to this problem,
FN4 ‘(C)onstitutional provisions for the security of per-
has long been recognized and, indeed, was ex-
pressly made the ground for this Court's holding in son and property should be liberally construed. A
FN5 close and literal construction deprives them of half
Boyd v. United States. There the Court fully

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 13
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

their efficacy, and leads to gradual depreciation of FN9. 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed.
the right, as if it consisted more in sound than in 183.
substance. It is the duty of (the) courts to be watch-
ful for the constitutional rights of the citizen, and When the question of the validity of that conviction
FN8 was brought here, we were presented with an al-
against any stealthy encroachments thereon.'
most perfect example of the interrelationship
FN8. 116 U.S. at page 635, 6 S.Ct. at page between the Fourth and Fifth Amendments. Indeed,
535. As the Court points out, Mr. Justice every member of this Court who participated in the
Bradley's approach to interpretation of the decision of that case recognized this interrelation-
Bill of Rights stemmed directly from the ship and relied on it, to some extent at least, as jus-
spirit in which that great charter of liberty tifying reversal of Rochin's conviction. The major-
was offered for adoption on the floor of the ity, though careful not to mention the Fifth Amend-
House of Representatives by its framer, ment's provision that ‘(n)o person * * * shall be
James Madison: ‘If they (the first ten compelled in any criminal case to be a witness
Amendments) are incorporated into the against himself,’ showed at least that it was not un-
Constitution, independent tribunals of aware that such a provision exists, stating: ‘Coerced
justice will consider themselves in a pecu- confessions offend the community's sense of fair
liar manner the guardians of those rights; play and decency. * * * It would be a stultification
they will be an impenetrable bulwark of the responsibility which the course of constitu-
against every assumption of power in the tional history has cast upon this Court to hold that
Legislative or Executive; they will be nat- in order to convict a man the police cannot extract
urally led to resist every encroachment by force what is in his mind but can extract what is
FN10
upon rights expressly stipulated for in the in his stomach.' The methods used by the po-
Constitution by the declaration of rights.’ I lice thus were, according to the majority, ‘too close
Annals of Congress 439 (1789). to the rack and the screw to permit of constitutional
FN11
FN9 differentiation,' and the case was reversed on
The case of Rochin v. People of California, the ground that these methods had violated the Due
which we decided three years after the Wolf case, Process Clause of the Fourteenth Amendment in
authenticated, I think, the soundness of Mr. Justice that the **1697 treatment accorded Rochin was of a
Bradley's and Mr. Justice Rutledge's reliance upon kind that ‘shocks the conscience,’ ‘offend(s) ‘a
the interrelationship between the Fourth and Fifth sense of justice“ and fails to ‘respect certain decen-
Amendments as requiring the exclusion of uncon- FN12
cies of civilized conduct.'
stitutionally seized evidence. In the Rochin case,
three police officers, acting with neither a judicial FN10. Id., 342 U.S. at page 173, 72 S.Ct.
warrant nor probable cause, entered Rochin's home at page 210.
for the purpose of conducting a search and broke
down the door to a bedroom occupied by Rochin FN11. Id., 342 U.S. at page 172, 72 S.Ct.
and his wife. Upon their entry into the room, the of- at page 210.
ficers saw Rochin pick up and swallow two small
FN12. Id., 342 U.S. at pages 172, 173, 72
capsules. They immediately seized him and took
S.Ct. at pages 209-210.
him in handcuffs to a hospital where the capsules
*664 were recovered by use of a stomach pump. In- I concurred in the reversal of the Rochin case, but
vestigation showed that the capsules contained on the ground that the Fourteenth Amendment
morphine and evidence of that fact was made the made the Fifth Amendment's provision against self-
basis of his conviction of a crime in a state court. incrimination *665 applicable to the States and that,

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 14
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

given a broad rather than a narrow construction, at page 386.


that provision barred the introduction of this
‘capsule’ evidence just as much as it would have *666 Only one thing emerged with complete clarity
forbidden the use of words Rochin might have been from the Irvine case-that is that seven Justices re-
FN13 jected the ‘shock-the-conscience’ constitutional
coerced to speak. In reaching this conclusion I
cited and relied on the Boyd case, the constitutional standard enunciated in the Wolf and Rochin cases.
doctrine of which was, of course, necessary to my But even this did not lessen the confusion in this
disposition of the case. At that time, however, these area of the law because the continued existence of
views were very definitely in the minority for only mutually inconsistent precedents together with the
Mr. Justice Douglas and I rejected the flexible and Court's inability to settle upon a majority opinion in
uncertain standards of the ‘shock-the-conscience the Irvine case left the situation at least as uncertain
FN14 FN17
test’ used in the majority opinion. as it had been before. Finally, today, we clear
up that uncertainty. As I understand the Court's
FN13. Id., 342 U.S. at pages 174-177, 72 opinion in this case, we again reject the confusing
S.Ct. at pages 210-212. ‘shock-the-conscience’ standard of the Wolf and
Rochin cases and, instead, set aside this state con-
FN14. For the concurring opinion of Mr. viction in reliance upon the precise, intelligible and
Justice Douglas see id., 342 U.S. at pages more predictable constitutional doctrine enunciated
177-179, 72 S.Ct. at pages 212, 213. in the Boyd case. I fully agree with Mr. Justice
Bradley's opinion that the two Amendments upon
Two years after Rochin, in Irvine v. People of State
FN15 which the Boyd doctrine rests are of vital import-
of California, we were again called upon to
ance in our constitutional scheme of liberty and that
consider the validity of a conviction based on evid-
both are entitled to a liberal rather than a niggardly
ence which had been obtained in a manner clearly
interpretation. The courts of the country are entitled
unconstitutional and arguably shocking to the con-
to know with as much certainty as possible what
science. The five opinions written by this Court in
scope they cover. The Court's opinion, in my judg-
that case demonstrate the utter confusion and uncer-
ment, dissipates the doubt and uncertainty in this
tainty that had been brought about by the Wolf and
field of constitutional law and I am persuaded, for
Rochin decisions. In concurring, Mr. Justice
this and other reasons stated, to depart from my pri-
CLARK emphasized the unsatisfactory nature of
or views, to accept the Boyd doctrine **1698 as
the Court's ‘shock-the-conscience test,’ saying that
controlling in this state case and to join the Court's
this ‘test’ ‘makes for such uncertainty and unpre-
judgment and opinion which are in accordance with
dictability that it would be impossible to foretell-oth-
that constitutional doctrine.
er than by guesswork-just how brazen the invasion
of the intimate privacies of one's home must be in FN17. See also United States v. Rabinow-
order to shock itself into the protective arms of the itz, 339 U.S. 56, 66-68, 70 S.Ct. 430,
Constitution. In truth, the practical result of this ad 444-445, 94 L.Ed. 653 (dissenting opin-
hoc approach is simply that when five Justices are ion).
sufficiently revolted by local police action, a con- Mr. Justice DOUGLAS, concurring.
viction is overturned and a guilty man may go free.' Though I have joined the opinion of the Court, I
FN16
add a few words. This criminal proceeding started
with a lawless search and seizure. The police
FN15. 347 U.S. 128, 74 S.Ct. 381, 98
entered a home *667 forcefully, and seized docu-
L.Ed. 561.
ments that were later used to convict the occupant
FN16. Id., 347 U.S. at page 138, 74 S.Ct. of a crime.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 15
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

She lived alone with her fifteen-year-old daughter rooms of her flat and of the basement of the house.
in the second-floor flat of a duplex in Cleveland. At
about 1:30 in the afternoon of May 23, 1957, three The testimony concerning the search is largely non-
policemen arrived at this house. They rang the bell, conflicting. The approach of the officers; their long
and the appellant, appearing at her window, asked wait outside the home, watching all its doors; the
FN2
them what they wanted. According to their later arrival of reinforcements armed with a paper;
testimony, the policemen had come to the house on breaking into the house; putting their hands on ap-
information from ‘a confidential source that there pellant and handcuffing her; numerous officers ran-
was a person hiding out in the home, who was sacking through every room and piece of furniture,
wanted for questioning in connection with a recent while the appellant sat, a prisoner in her own bed-
FN1 room. There is direct conflict in the testimony,
bombing.' To the appellant's question,
however, they replied only that they wanted to however, as to where the evidence which is the
question her and would not state the subject about basis of this case was found. To understand the
which they wanted to talk. meaning of that conflict, one must understand that
this case is based **1699 on the knowing posses-
FN3
FN1. This ‘confidential source’ told the sion of four little pamphlets, a couple of photo-
police, in the same breath, that ‘there was a graphs and a little pencil doodle-all of which are al-
large amount of policy paraphernalia being leged to be pornographic.
hidden in the home.’
FN2. The purported warrant has disap-
The appellant, who had retained an attorney in con- peared from the case. The State made no
nection with a pending civil matter, told the police attempt to prove its existence, issuance or
she would call him to ask if she should let them in. contents, either at the trial or on the hear-
On her attorney's advice, she told them she would ing of a preliminary motion to suppress.
let them in only when they produced a valid search The Supreme Court of Ohio said: ‘There
warrant. For the next two and a half hours, the po- is, in the record, considerable doubt as to
lice laid siege to the house. At four o'clock, their whether there ever was any warrant for the
number was increased to at least seven. Appellant's search of defendant's home. * * * Admit-
lawyer appeared on the scene; and one of the po- tedly * * * there was no warrant authoriz-
licemen told him that they now had a search war- ing a search * * * for any ‘lewd, or lascivi-
rant, but the officer refused to show it. Instead, go- ous book * * * print, (or) picture. “ 170
ing to the back door, the officer first tried to kick it Ohio St. 427, 430, 166 N.E.2d 387, 389.
in and, when that proved unsuccessful, he broke the (Emphasis added.)
glass in the door and opened it from the inside.
FN3. Ohio Rev.Code, s 2905.34: ‘No per-
The appellant, who was on the steps going up to her son shall knowingly * * * have in his pos-
flat, demanded to see the search warrant; but the of- session or under his control an obscene,
ficer refused to let her see it although he waved a lewd, or lascivious book, magazine,
paper in front of her face. She grabbed it and thrust pamphlet, paper, writing, advertisement,
it down the front of her dress. The policemen seized circular, print, picture * * * or drawing * *
her, took the paper *668 from her, and had her * of an indecent or immoral nature * * *.
handcuffed to another officer. She was taken up- Whoever violates this section shall be
stairs, thus bound, and into the larger of the two fined not less than two hundred nor more
bedrooms in the apartment; there she was forced to than two thousand dollars or imprisoned
sit on the bed. Meanwhile, the officers entered the not less than one nor more than seven
house and made a complete search of the four years, or both.’

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 16
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

According to the police officers who participated in carry the day. But with all respect it was not the
the search, these articles were found, some in ap- voice of reason or principle. *670 As stated in the
pellant's *669 dressers and some in a suitcase found Weeks case, if evidence seized in violation of the
by her bed. According to appellant, most of the art- Fourth Amendment can be used against an accused,
icles were found in a cardboard box in the base- ‘his right to be secure against such searches and
ment; one in the suitcase beside her bed. All of this seizures, is of no value, and * * * might as well be
material, appellant-and a friend of hers-said were stricken from the Constitution.’ 232 U.S. at page
odds and ends belonging to a recent boarder, a man 393, 34 S.Ct. at page 344.
who had left suddenly for New York and had been
detained there. As the Supreme Court of Ohio read When we allowed States to give constitutional
the statute under which appellant is charged, she is sanction to the ‘shabby business' of unlawful entry
guilty of the crime whichever story is true. into a home (to use an expression of Mr. Justice
Murphy, Wolf v. People of State of Colorado, 338
The Ohio Supreme Court sustained the conviction U.S. at page 46, 69 S.Ct. at page 1371), we did in-
even though it was based on the documents ob- deed rob the Fourth Amendment of much meaning-
tained in the lawless search. For in Ohio evidence ful force. There are, of course, other theoretical
obtained by an unlawful search and seizure is ad- remedies. One is disciplinary action within the hier-
missible in a criminal prosecution at least where it archy of the police system, including prosecution of
was not taken from the ‘defendant's person by the the police officer for a crime. Yet as Mr. Justice
use of brutal or offensive force against defendant.’ Murphy said in Wolf v. People of State of Color-
State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387, ado, 338 U.S. at page 42, 69 S.Ct. at page 1369
at page 388, syllabus 2; State v. Lindway, 131 Ohio ‘Self-scrutiny is a lofty ideal, but its exaltation
St. 166, 2 N.E.2d 490. This evidence would have reaches new heights if we expect a District Attor-
been inadmissible in a federal prosecution. Weeks ney to prosecute himself or his associates for well-
v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 meaning**1700 violations of the search and seizure
L.Ed. 652; Elkins v. United States, 364 U.S. 206, clause during a raid the District Attorney or his as-
80 S.Ct. 1437, 4 L.Ed.2d 1669. For, as stated in the sociates have ordered.’
former decision, ‘The effect of the 4th Amendment
is to put the courts of the United States and Federal The only remaining remedy, if exclusion of the
officials, in the exercise of their power and author- evidence is not required, is an action of trespass by
ity, under limitations and restraints * * *.’ Id., 232 the homeowner against the offending officer. Mr.
U.S. at pages 391-392, 34 S.Ct. at page 344. It was Justice Murphy showed how onerous and difficult it
therefore held that evidence obtained (which in that would be for the citizen to maintain that action and
case was documents and correspondence) from a how meagre the relief even if the citizen prevails.
home without any warrant was not admissible in a 338 U.S. 42-44, 69 S.Ct. 1369-1370. The truth is
federal prosecution. that trespass actions against officers who make un-
lawful searches and seizures are mainly illusory
We held in Wolf v. People of State of Colorado, remedies.
338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, that the
Fourth Amendment was applicable to the States by Without judicial action making the exclusionary
reason of the Due Process Clause of the Fourteenth rule applicable to the States, Wolf v. People of
Amendment. But a majority held that the exclusion- State of Colorado in practical effect reduced the
ary rule of the Weeks case was not required of the guarantee against unreasonable searches and
States, that they could apply such sanctions as they seizures to ‘a dead letter,’ as Mr. Justice Rutledge
chose. That position had the necessary votes to said in his dissent. See 338 U.S. at page 47, 69
S.Ct. at page 1368.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 17
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

Wolf v. People of State of Colorado, supra, was de- the United States, 28 U.S.C.A.
cided in 1949. The immediate result was a storm of
constitutional controversy which only today finds FN5. ‘Did the conduct of the police in pro-
its end. I believe that this is an appropriate case in curing the books, papers and pictures
which to put an end to the asymmetry which Wolf placed in evidence by the Prosecution viol-
imported into the law. See *671 Stefanelli v. ate Amendment IV, Amendment V, and
Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138; Amendment XIV Section 1 of the United
Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, States Constitution * * *?’
100 L.Ed. 233; Elkins v. United States, supra; Mon-
Moreover, continuance of Wolf v. People of State
roe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d
of Colorado in its full vigor breeds the unseemly
492. It is an appropriate case because the facts it
shopping around of the kind revealed in Wilson v.
presents show-as would few other cases-the casual
Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d
arrogance of those who have the untrammelled
620. Once evidence, inadmissible in a federal court,
power to invade one's home and to seize one's per-
is admissible in *672 a state court a ‘double stand-
son.
ard’ exists which, as the Court points out, leads to
It is also an appropriate case in the narrower and ‘working arrangements' that undercut federal policy
more technical sense. The issues of the illegality of and reduce some aspects of law enforcement to
the search and the admissibility of the evidence shabby business. The rule that supports that prac-
have been presented to the state court and were tice does not have the force of reason behind it.
duly raised here in accordance with the applicable
FN4 Memorandum of Mr. Justice STEWART.
Rule of Practice. The question was raised in the
notice of appeal, the jurisdictional statement and in Agreeing fully with Part I of Mr. Justice HAR-
FN5
appellant's brief on the merits. It is true that ar- LAN'S dissenting opinion, **1701 I express no
gument was mostly directed to another issue in the view as to the merits of the constitutional issue
case, but that is often the fact. See Rogers v. Rich- which the Court today decides. I would, however,
mond, 365 U.S. 534, 535-540, 81 S.Ct. 735, reverse the judgment in this case, because I am per-
736-739, 5 L.Ed.2d 760. Of course, an earnest ad- suaded that the provision of s 2905.34 of the Ohio
vocate of a position always believes that, had he Revised Code, upon which the petitioner's convic-
only an additional opportunity for argument, his tion was based, is, in the words of Mr. Justice
side would win. But, subject to the sound discretion HARLAN, not ‘consistent with the rights of free
of a court, all argument must at last come to a halt. thought and expression assured against state action
This is especially so as to an issue about which this by the Fourteenth Amendment.’
Court said last year that ‘The arguments of its ant-
agonists and of its proponents have been so many Mr. Justice HARLAN, whom Mr. Justice FRANK-
times marshalled as to require no lengthy elabora- FURTER and Mr. Justice WHITTAKER join, dis-
tion here.’ Elkins v. United States, supra, 364 U.S. senting.
216, 80 S.Ct. 1443. In overruling the Wolf case the Court, in my opin-
ion, has forgotten the sense of judicial restraint
FN4. ‘The notice of appeal * * * shall set which, with due regard for stare decisis, is one ele-
forth the questions presented by the appeal ment that should enter into deciding whether a past
* * *. Only the questions set forth in the decision of this Court should be overruled. Apart
notice of appeal or fairly comprised therein from that I also believe that the Wolf rule repres-
will be considered by the court.’ Rule 10, ents sounder Constitutional doctrine than the new
subd. 2(c), Rules of the Supreme Court of rule which now replaces it.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 18
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

I. judges thought the statute offensive to the


Fourteenth Amendment.
From the Court's statement of the case one would
gather that the central, if not controlling, issue on FN4. Respecting the ‘substantiality’ of the
this appeal is whether illegally state-seized evid- federal questions tendered by this appeal,
ence is Constitutionally admissible in a state pro- appellant's Jurisdictional Statement con-
secution, an issue which would of course face us tained the following:
with the need for re-examining Wolf. However,
such is not the situation. For, although that question ‘The Federal questions raised by this ap-
was indeed raised here and below among appel- peal are substantial for the following reas-
lant's subordinate points, the new and *673 pivotal ons:
issue brought to the Court by this appeal is whether
‘The Ohio Statute under which the defend-
s 2905.34 of the Ohio Revised Code making crim-
ant was convicted violates one's sacred
inal the mere knowing possession or control of ob-
FN1 right to own and hold property, which has
scene material, and under which appellant has
been held inviolate by the Federal Consti-
been convicted, is consistent with the rights of free
tution. The right of the individual ‘to read,
thought and expression assured against state action
FN2 to believe or disbelieve, and to think
by the Fourteenth Amendment. That was the
without governmental supervision is one of
principal issue which was decided by the Ohio Su-
FN3 our basic liberties, but to dictate to the ma-
preme Court, which was tendered by appel-
FN4 ture adult what books he may have in his
lant's Jurisdictional Statement, and which was
FN5 FN6 own private library seems to be a clear in-
briefed and argued in this Court.
fringement of the constitutional rights of
FN1. The material parts of that law are the individual’ (Justice Herbert's dissenting
quoted in note 1 of the Court's opinion, Opinion, Appendix ‘A’). Many convictions
367 U.S. at page 643, 81 S.Ct. at page have followed that of the defendant in the
1685. State Courts of Ohio based upon this very
same statute. Unless this Honorable Court
FN2. In its note 3, 367 U.S. at page 646, hears this matter and determines once and
81 S.Ct. at page 1686, the Court, it seems for all that the Statute is unconstitutional
to me, has turned upside down the relative as defendant contends, there will be many
importance of appellant's reliance on the such appeals. When Sections 2905.34,
various points made by him on this appeal. 2905.37 and 3767.01 of the Ohio Revised
Code (the latter two Sections providing ex-
FN3. See 170 Ohio St. 427, 166 N.E.2d ceptions to the coverage of s 2905.34 and
387. Because of the unusual provision of related provisions of Ohio's obscenity stat-
the Ohio Constitution requiring ‘the con- utes) are read together, * * * they obvi-
currence of at least all but one of the ously contravene the Federal and State
judges' of the Ohio Supreme Court before constitutional provisions; by being con-
a state law is held unconstitutional (except victed under the Statute involved herein,
in the case of affirmance of a holding of and in the manner in which she was con-
unconstitutionality by the Ohio Court of victed, Defendant-Appellant has been
Appeals), Ohio Const. Art. IV, s 2, the denied due process of law; a sentence of
State Supreme Court was compelled to up- from one (1) to seven (7) years in a penal
hold the constitutionality of s 2905.34, institution for alleged violation of this un-
despite the fact that four of its seven constitutional section of the Ohio Revised

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 19
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

Code deprives the defendant of her right to counsel expressly disavowed any such pur-
liberty and the pursuit of happiness, con- pose.
trary to the Federal and State constitutional
provisions, for circumstances which she *674 **1702 In this posture of things, I think it fair
herself did not put in motion, and is a cruel to say that five members of this Court have simply
and unusual punishment inflicted upon her ‘reached out’ to overrule Wolf. With all respect for
contrary to the State and Federal Constitu- the views of the majority, and recognizing that stare
tions.' decisis carries different*675 weight in Constitu-
tional adjudication than it does in nonconstitutional
FN5. The appellant's brief did not urge the decision, I can perceive no justification for regard-
overruling of Wolf. Indeed it did not even ing this case as an appropriate occasion for re-
cite the case. The brief of the appellee examining Wolf.
merely relied on Wolf in support of the
State's contention that appellant's convic- The action of the Court finds no support in the rule
tion was not vitiated by the admission in that decision of Constitutional issues should be
evidence of the fruits of the alleged unlaw- avoided wherever possible. For in overruling Wolf
ful search and seizure by the police. The the Court, instead of passing upon the validity of
brief of the American and Ohio Civil Ohio's s 2905.34, has simply chosen between two
Liberties Unions, as amici, did in one short Constitutional questions. Moreover, I submit that it
concluding paragraph of its argument has chosen the more difficult and less appropriate
‘request’ the Court to re-examine and over- of the two questions. The Ohio statute which, as
rule Wolf, but without argumentation. I construed by the State Supreme Court, punishes
quote in full this part of their brief: knowing possession or control of obscene material,
irrespective of the purposes of such possession or
FN7
‘This case presents the issue of whether control (with exceptions not here applicable)
evidence obtained in an illegal search and and irrespective of whether the accused had any
seizure can constitutionally be used in a reasonable **1703 opportunity to rid himself of the
FN8
State criminal proceeding. We are aware of material after discovering that it was obscene,
the view that this Court has taken on this surely presents a Constitutional *676 question
issue in Wolf v. People of State of Color- which is both simpler and less far-reaching than the
ado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. question which the Court decides today. It seems to
1782. It is our purpose by this paragraph to me that justice might well have been done in this
respectfully request that this Court re- case without overturning a decision on which the
examine this issue and conclude that the administration of criminal law in many of the States
ordered liberty concept guaranteed to per- has long justifiably relied.
sons by the due process clause of the Four-
teenth Amendment necessarily requires FN7. ‘2905.37 Legitimate publications not
that evidence illegally obtained in violation obscene.
thereof, not be admissible in state criminal
‘Sections 2905.33 to 2905.36, inclusive, of
proceedings.’
the Revised Code do not affect teaching in
FN6. Counsel for appellant on oral argu- regularly chartered medical colleges, the
ment, as in his brief, did not urge that Wolf publication of standard medical books, or
be overruled. Indeed, when pressed by regular practitioners of medicine or drug-
questioning from the bench whether he gists in their legitimate business, nor do
was not in fact urging us to overrule Wolf, they affect the publication and distribution

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 20
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

of bona fide works of art. No articles spe- N.E. 585, 587. Though, of course, not reflecting the
cified in sections 2905.33, 2905.34, and full measure of this continuing reliance, I find that
2905.36 of the Revised Code shall be con- during the last three Terms, for instance, the issue
sidered a work of art unless such article is of the inadmissibility of illegally state-obtained
made, published, and distributed by a bona evidence appears on an average of about fifteen
fide association of artists or an association times per Term just in the in forma pauperis cases
for the advancement of art whose demon- summarily disposed of by us. This would indicate
strated purpose does not contravene sec- both that the issue which is now being decided may
tions 2905.06 to 2905.44, inclusive, of the well have untoward practical ramifications respect-
Revised Code, and which is not organized ing state cases long since disposed of in reliance on
for profit.’ Wolf, and that were we determined to re-examine
that doctrine we would not lack future opportunity.
s 3767.01(C)
The occasion which the Court has taken here is in
'This section and sections 2905.34, * * * the context of a case where the question was briefed
2905.37 * * * of the Revised Code shall not at all and argued only extremely tangentially.
not affect * * * any newspaper, magazine, The unwisdom of overruling Wolf without full-
or other publication entered as second dress argument*677 is aggravated by the circum-
class matter by the post-office department.' stance that that decision is a comparatively recent
one (1949) to which three members of the present
FN8. The Ohio Supreme Court, in its con-
majority have at one time or other expressly sub-
struction of s 2905.34, controlling upon us
scribed, one to be sure with explicit misgivings.
here, refused to import into it any other ex- FN9
I would think that our obligation to the States,
ceptions than those expressly provided by
on whom we impose this new rule, as well as the
the statute. See note 7, supra. Instead it
obligation of orderly adherence to our own pro-
held that ‘If anyone looks at a book and
cesses would demand that we seek that aid which
finds it lewd, he is forthwith, under this le-
adequate briefing and argument lends to the de-
gislation, guilty * * *.’ ( 170 Ohio St. 427,
termination of an important issue. It certainly has
166 N.E.2d 391.)
never been a postulate of judicial power that mere
Since the demands of the case before us do not re- altered disposition, or subsequent membership on
quire us to reach the question of the validity of the Court, is sufficient warrant for overturning a de-
Wolf, I think this case furnishes a singularly inap- liberately decided rule of Constitutional law.
propriate occasion for reconsideration of that de-
FN9. See Wolf v. People of State of Color-
cision, if reconsideration is indeed warranted. Even
ado, 338 U.S. at pages 39-40, 69 S.Ct. at
the most cursory examination will reveal that the
pages 1367-1368; Irvine v. People of State
doctrine of the Wolf case has been of continuing
of California, 347 U.S. 128, 133-134, and
importance in the administration of state criminal
at pages 138-139, 74 S.Ct. 381, 383-384,
law. Indeed, certainly as regards its
and at pages 386-387, 98 L.Ed. 561. In the
‘nonexclusionary’ aspect, Wolf did no more than
latter case, decided in 1954, Mr. Justice
articulate the then existing assumption among the
Jackson, writing for the majority, said (
States that the federal cases enforcing the exclu-
347 U.S. at page 134, 74 S.Ct. at page
sionary rule ‘do not bind (the States), for they con-
384): ‘We think that the Wolf decision
strue provisions of the federal Constitution, the
should not be overruled, for the reasons so
Fourth and Fifth Amendments, not applicable to the
persuasively stated therein.’ Compare
states.’ People v. Defore, 242 N.Y. 13, 20, 150

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 21
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. present purposes, that the Weeks rule ‘is of consti-
232, 97 L.Ed. 231, and Stefanelli v. tutional origin.’
Minard, 342 U.S. 117, 72 S.Ct. 118, 96
L.Ed. 138, in which the Wolf case was dis- At the heart of the majority's opinion in this case is
cussed and in no way disapproved. And the following syllogism: (1) the rule excluding in
see Pugach v. Dollinger, 365 U.S. 458, 81 federal criminal trials evidence which is the product
S.Ct. 650, 5 L.Ed.2d 678, which relied on of all illegal search and seizure is a ‘part and par-
Schwartz. cel’ of the Fourth Amendment; (2) Wolf held that
the ‘privacy’ assured against federal action by the
**1704 Thus, if the Court were bent on reconsider- Fourth Amendment is also protected against state
ing Wolf, I think that there would soon have action by the Fourteenth Amendment; and (3) it is
presented itself an appropriate opportunity in which therefore ‘logically and constitutionally necessary’
we could have had the benefit of full briefing and that the Weeks exclusionary rule should also be en-
FN10
argument. In any event, at the very least, the forced against the States.
present case should have been set down for reargu-
ment, in view of the inadequate briefing and argu- FN10. Actually, only four members of the
ment we have received on the Wolf point. To all in- majority support this reasoning. See, 367
tents and purposes the Court's present action U.S. at pages 685-686, 81 S.Ct. at page
amounts to a summary reversal of Wolf, without ar- 1708.
gument.
This reasoning ultimately rests on the unsound
I am bound to say that what has been done is not premise that because Wolf carried into the States,
likely to promote respect either for the Court's adju- as part of ‘the concept of ordered liberty’ embodied
dicatory process or for the stability of its decisions. in the Fourteenth Amendment, the principle of
Having been unable, however, to persuade any of ‘privacy’ underlying the Fourth Amendment (338
the majority to a different procedural course, I now U.S. at page 27, 69 S.Ct. at page 1361), it must fol-
turn to the merits of the present decision. low that whatever configurations of the Fourth
Amendment have been developed in the particular-
izing federal precedents are likewise to be deemed
*678 II. a part of “ordered liberty,” *679 and as such are en-
forceable against the States. For me, this does not
Essential to the majority's argument against Wolf is
follow at all.
the proposition that the rule of Weeks v. United
States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 362, It cannot be too much emphasized that what was re-
excluding in federal criminal trials the use of evid- cognized in Wolf was not that the Fourth Amend-
ence obtained in violation of the Fourth Amend- ment as such is enforceable against the States as a
ment, derives not from the ‘supervisory power’ of facet of due process, a view of the Fourteenth
this Court over the federal judicial system, but from Amendment which, as Wolf itself pointed out ( 338
Constitutional requirement. This is so because no U.S. at page 26, 69 S.Ct. at page 1360), has long
one, I suppose, would suggest that this Court pos- since been discredited, but the principle of privacy
sesses any general supervisory power over the state ‘which is at the core of the Fourth Amendment.’
courts. Although I entertain considerable doubt as Id., 338 U.S. at page 27, 69 S.Ct. at page 1361. It
to the soundness of this foundational proposition of would not be proper to expect or impose any pre-
the majority, cf. Wolf v. People of State of Color- cise equivalence, either as regards the scope of the
ado, 338 U.S. at pages 39-40, 69 S.Ct. at pages right or the means of its implementation, between
1367-1368 (concurring opinion), I shall assume, for the requirements of the Fourth and Fourteenth

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 22
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

Amendments. For the Fourth, unlike what was said half of the States still adhere to the common-law
in Wolf of the Fourteenth, does not state a general non-exclusionary rule, and one, Maryland, retains
principle only; it is a particular command, having the rule as to felonies. Berman and Oberst, Admiss-
its setting in a pre-existing legal context on which ibility of Evidence Obtained by an Unconstitutional
both interpreting decisions and enabling statutes Search and Seizure, 55 N.W.L.Rev. 525, 532-533.
must at least build. But in any case surely all this is beside the point, as
the majority itself indeed seems to recognize. Our
**1705 Thus, even in a case which presented concern here, as it was in Wolf, is not with the de-
simply the question of whether a particular search sirability of that rule but only with the question
and seizure was constitutionally ‘unreasonable’-say whether the States are Constitutionally free to fol-
in a tort action against state officers-we would not low it or not as they may themselves determine, and
be true to the Fourteenth Amendment were we the relevance of the disparity of views among the
merely to stretch the general principle of individual States on this point lies simply in the fact that the
privacy on a Procrustean bed of federal precedents judgment involved is a debatable one. Moreover,
under the Fourth Amendment. But in this instance the very fact on which the majority relies, instead
more than that is involved, for here we are review- of lending support to what is now being done,
ing not a determination that what the state police points away from the need of replacing voluntary
did was Constitutionally permissible (since the state state action with federal compulsion.
court quite evidently assumed that it was not), but a
determination that appellant was properly found The preservation of a proper balance between state
guilty of conduct which, for present purposes, it is and federal responsibility in the administration of
to be assumed the State could Constitutionally pun- criminal justice demands patience on the part of
ish. Since there is not the slightest suggestion that those who might like to see things move faster
Ohio's policy is ‘affirmatively to sanction * * * po- among the States in this respect. Problems of crim-
lice incursion into privacy’ ( 338 U.S. at page 28, inal law enforcement vary *681 widely from State
69 S.Ct. at page 1361), compare Marcus v. Search of State. One State, in considering the totality of its
Warrants, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 legal picture, may conclude that the need for em-
L.Ed.2d 1127, what the Court is now doing is to bracing the Weeks rule is pressing because other
impose *680 upon the States not only federal sub- remedies are unavailable or inadequate to secure
stantive standards of ‘search and seizure’ but also compliance with the substantive Constitutional
the basic federal remedy for violation of those principle involved. Another, though equally solicit-
standards. For I think it entirely clear that the ous of Constitutional rights, may choose to pursue
Weeks exclusionary rule is but a remedy which, by one purpose at a time, allowing all evidence relev-
penalizing past official misconduct, is aimed at de- ant to guilt to be brought into a criminal trial, and
terring such conduct in the future. dealing with Constitutional infractions by other
means. Still another may consider the exclusionary
I would not impose upon the States this federal ex- rule too rough-and-ready a remedy, in that it
clusionary remedy. The reasons given by the major- reaches only unconstitutional intrusions which
ity for now suddenly turning its back on Wolf seem eventuate in criminal prosecution of the victims.
to me notably unconvincing. Further, a State after experimenting with the Weeks
rule for a time may, because of unsatisfactory ex-
First, it is said that ‘the factual grounds upon which
perience with it, decide to revert to a non-
Wolf was based’ have since changed, in that more
exclusionary rule. And so on. From the standpoint
States now follow the Weeks exclusionary rule than
of Constitutional permissibility in pointing a State
was so at the time Wolf was decided. While that is
in one direction or another, I do not see at all why
true, a recent survey indicates that at present one-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 23
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

‘time has set its **1706 face against’ the considera- Clause. I do not believe that the Fourteenth Amend-
tions which led Mr. Justice Cardozo, then chief ment empowers this Court to mould state remedies
judge of the New York Court of Appeals, to reject effectuating the right to freedom from ‘arbitrary in-
for New York in People v. Defore, 242 N.Y. 13, trusion by the police’ to suit its own notions of how
150 N.E. 585, the Weeks exclusionary rule. For us things should be done, as, for instance, the Califor-
the question remains, as it has always been, one of nia Supreme Court did in People v. Cahan, 44
state power, not one of passing judgment on the Cal.2d 434, 282 P.2d 905, with reference to proced-
wisdom of one state course or another. In my view ures in the California courts or as this Court did in
this Court should continue to forbear from fettering Weeks for the lower federal courts.
the States with an adamant rule which may embar-
rass them in coping with their own peculiar prob- FN11. Rea v. United States, 350 U.S. 214,
lems in criminal law enforcement. 76 S.Ct. 292, 100 L.Ed. 233; Elkins v.
United States, 364 U.S. 206, 80 S.Ct. 1437,
Further, we are told that imposition of the Weeks 4 L.Ed.2d 1669; Rios v. United States, 364
rule on the States makes ‘very good sense,’ in that U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.
it will promote recognition by state and federal offi-
cials of their ‘mutual obligation to respect the same A state conviction comes to us as the complete
fundamental criteria’ in their approach to law en- product of a sovereign judicial system. Typically a
forcement, and will avoid “needless conflict case will have been tried in a trial court, tested in
between state and federal courts.” Indeed the ma- some final appellate*683 court, and will go no fur-
jority now finds an incongruity *682 in Wolf's dis- ther. In the comparatively rare instance when a con-
criminating perception between the demands of viction is reviewed by us on due process grounds
‘ordered liberty’ as respects the basic right of we deal then with a finished product in the creation
‘privacy’ and the means of securing it among the of which we are allowed no hand, and our task, far
States. That perception, resting both on a sensitive from being one of over-all supervision, is, speaking
regard for our federal system and a sound recogni- generally, restricted to a determination of whether
tion of this Court's remoteness from particular state the prosecution was Constitutionally fair. The spe-
problems, is for me the strength of that decision. cifics of trial procedure, which in every mature leg-
al system will vary greatly in detail, are within the
An approach which regards the issue as one of sole competence of the States. I do not see how it
achieving procedural symmetry or of serving ad- can be said that a trial becomes unfair simply be-
ministrative convenience surely disfigures the cause a State determines that evidence may be con-
boundaries of this Court's functions in relation to sidered by the trier of fact, regardless of how it was
the state and federal courts. Our role in promulgat- obtained, if it is relevant to the one issue with
ing the Weeks rule and its extensions in such cases which the trial is concerned, the guilt or innocence
FN11
as Rea, Elkins, and Rios was quite a different of the accused. Of course, a court may use its pro-
one than it is here. There, in implementing the cedures as an incidental means of pursuing other
Fourth Amendment, we occupied the position of a ends than the correct resolution of the controversies
tribunal having the ultimate responsibility for de- before it. Such indeed is **1707 the Weeks rule,
veloping the standards and procedures of judicial but if a State does not choose to use its courts in
administration within the judicial system over this way, I do not believe that this Court is em-
which it presides. Here we review state procedures powered to impose this much-debated procedure on
whose measure is to be taken not against the specif- local courts, however efficacious we may consider
ic substantive commands of the Fourth Amendment the Weeks rule to be as a means of securing Consti-
but under the flexible contours of the Due Process tutional rights.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 24
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

Finally, it is said that the overruling of Wolf is sup- sumption of our procedural system is that ‘Ours is
ported by the established doctrine that the admis- the accusatorial as opposed to the inquisitorial sys-
sion in evidence of an involuntary confession tem. Such has been the characteristic of Anglo-
renders a state conviction Constitutionally invalid. American criminal justice since it freed itself from
Since such a confession may often be entirely reli- practices borrowed by the Star Chamber from the
able, and therefore of the greatest relevance to the Continent whereby an accused was interrogated in
issue of the trial, the argument continues, this doc- secret for hours on end.’ Watts v. State of Indiana,
trine is ample warrant in precedent that the way 338 U.S. 49, 54, 69 S.Ct. 1347, 1350, 93 L.Ed.
evidence was obtained, and not just its relevance, is 1801. See Rogers v. Richmond, 365 U.S. 534, 541,
Constitutionally significant to the fairness of a trial. 81 S.Ct. 735, 740, 5 L.Ed.2d 760. The pressures
I believe this analogy is not a true one. The brought to bear against an accused leading to a con-
‘coerced confession’ rule is certainly not a rule that fession, unlike an unconstitutional violation of pri-
any illegally obtained statements may not be used vacy, do not, apart *685 from the use of the confes-
in evidence. I would suppose that a statement which sion at trial, necessarily involve independent Con-
is procured during *684 a period of illegal deten- stitutional violations. What is crucial is that the trial
tion, McNabb v. United States, 318 U.S. 332, 63 defense to which an accused is entitled should not
S.Ct. 608, 87 L.Ed. 819, is, as much as unlawfully be rendered an empty formality by reason of state-
seized evidence, illegally obtained, but this Court ments wrung from him, for then ‘a prisoner * * *
has consistently refused to reverse state convictions (has been) made the deluded instrument of his own
resting on the use of such statements. Indeed it conviction.’ 2 Hawkins, Pleas of the Crown (8th
would seem the Court laid at rest the very argument ed., 1824), c. 46, s 34. That this is a procedural
now made by the majority when in Lisenba v. right, and that its violation occurs at the time his
People of State of California, 314 U.S. 219, at page improperly obtained statement is admitted at trial,
235, 62 S.Ct. 280, at page 289, 86 L.Ed. 166, a is manifest. For without this right all the careful
state-coerced confession case, it said: safeguards erected around the giving of testimony,
whether by an accused or any other witness, would
'It may be assumed (that the) treatment of the peti- become empty formalities in **1708 a procedure
tioner (by the police) * * * deprived him of his where the most compelling possible evidence of
liberty without due process and that the petitioner guilt, a confession, would have already been ob-
would have been afforded preventive relief if he tained at the unsupervised pleasure of the police.
could have gained access to a court to seek it.
This, and not the disciplining of the police, as with
‘But illegal acts, as such, committed in the course illegally seized evidence, is surely the true basis for
of obtaining a confession * * * do not furnish an excluding a statement of the accused which was un-
answer to the constitutional question we must de- constitutionally obtained. In sum, I think the co-
cide. * * * The gravamen of his complaint is the erced confession analogy works strongly against
unfairness of the use of his confessions, and what what the Court does today.
occurred in their procurement is relevant only as it
bears on that issue.’ (Emphasis supplied.) In conclusion, it should be noted that the majority
opinion in this case is in fact an opinion only for
The point, then, must be that in requiring exclusion the judgment overruling Wolf, and not for the basic
of an involuntary statement of an accused, we are rationale by which four members of the majority
concerned not with an appropriate remedy for what have reached that result. For my Brother BLACK is
the police have done, but with something which is unwilling to subscribe to their view that the Weeks
regarded as going to the heart of our concepts of exclusionary rule derives from the Fourth Amend-
fairness in judicial procedure. The operative as-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


81 S.Ct. 1684 Page 25
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d 384
(Cite as: 367 U.S. 643, 81 S.Ct. 1684)

ment itself (see 367 U.S. at page 661, 81 S.Ct. at


page 1694), but joins the majority opinion on the
premise that its end result can be achieved by
bringing the Fifth Amendment to the aid of the
Fourth (see 367 U.S. at pages 662-665, 81 S.Ct. at
FN12
pages 1695-1697). On that score I need only
say that whatever the validity of *686 the
‘Fourth-Fifth Amendment’ correlation which the
Boyd case (116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.
746) found, see 8 Wigmore, Evidence (3d ed.
1940), s 2184, we have only very recently again re-
iterated the long-established doctrine of this Court
that the Fifth Amendment privilege against self-
incrimination is not applicable to the States. See
Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6
L.Ed.2d 156.

FN12. My Brother STEWART concurs in


the Court's judgment on grounds which
have nothing to do with Wolf.

I regret that I find so unwise in principle and so in-


expedient in policy a decision motivated by the
high purpose of increasing respect for Constitution-
al rights. But in the last analysis I think this Court
can increase respect for the Constitution only if it
rigidly respects the limitations which the Constitu-
tion places upon it, and respects as well the prin-
ciples inherent in its own processes. In the present
case I think we exceed both, and that our voice be-
comes only a voice of power, not of reason.

U.S. 1961.
Mapp v. Ohio
367 U.S. 643, 81 S.Ct. 1684, 84 A.L.R.2d 933, 6
L.Ed.2d 1081, 86 Ohio Law Abs. 513, 16 O.O.2d
384

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.