The Constitution of the United States of America: Analysis and Interpretation Part 151

Notes

[1] Miller, Samuel F., The Const.i.tution (1893), page 646.

AMENDMENT 4

SEARCHES AND SEIZURES

Page Coverage of the amendment 823 Necessity, sufficiency and effect of warrants 825 Records, reports and subpoenas 825 Search and seizure incidental to arrest 828 Search of vehicles 830 Use of evidence 830

SEARCHES AND SEIZURES

Amendment 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Coverage of the Amendment

This amendment denounces only such searches and seizures as are "unreasonable," and is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner to conserve public interests as well as the rights of individuals.[1] It applies only to governmental action, not to the unlawful acts of individuals in which the government has no part.[2] It has no reference to civil proceedings for the recovery of debts; consequently, a distress warrant issued by the Solicitor of the Treasury under an act of Congress is not forbidden, though issued without support of an oath or affirmation.[3] But the amendment is applicable to search warrants issued under any statute, including revenue and tariff laws.[4]

Security "in their persons, houses, papers and effects" is a.s.sured to the people by this article. Not only the search of a dwelling, but also of a place of business,[5] a garage,[6] or a vehicle,[7] is limited by its provisions. But open fields are not covered by the term "house"; they may be searched without a warrant.[8] A sealed letter deposited in the mails may not be opened by the postal authorities without the sanction of a magistrate.[9] The subpoena of private papers is subject to its test of reasonableness.[10] Retention for use as evidence of a letter voluntarily written by a prisoner, which, without threat or coercion, came into the possession of prison officials under the practice and discipline of the inst.i.tution, is not prohibited.[11] Where officers demand admission to private premises in the name of the law, their subsequent explorations are searches within the meaning of the Const.i.tution, even though the occupant opens the door to admit them.[12]

A peremptory demand by federal officers that a person suspected of crime open a locked room and hand over ration coupons kept there was held not to amount to a seizure in view of the fact that the coupons were government property which the custodian was under a duty to surrender.[13] Neither wiretapping,[14] nor the use of a detectaphone to listen to a conversation in an adjoining room,[15] nor interrogation under oath by a government official of a person lawfully in confinement[16] is within the purview of this article. Nor does it apply to statements made by an accused on his own premises to an "undercover agent" whose ident.i.ty was not suspected and who had on his person a radio transmitter which communicated the statements to another agent outside the building.[17] Said Justice Jackson for the Court: "Pet.i.tioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. Such unlawful seizure may violate the Fourth Amendment, even though the entry itself was by subterfuge or fraud rather than force.

But such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods."[18] But narcotics seized in a hotel room during absence of the owner, in the course of a search without warrant for either search or arrest, were not adducible as evidence against the owner, who, however, was not ent.i.tled to have them returned since they were legal contraband.[19]

Necessity, Sufficiency and Effect of Warrants

A warrant of commitment by a justice of the peace must state a good cause certain and be supported by oath.[20] A notary public is not authorized to administer oaths in federal criminal proceedings; hence a warrant based on affidavits verified before a notary is invalid.[21] A warrant of the Senate for attachment of a person who ignored a subpoena from a Senate committee is supported by oath within the requirement of this amendment when based upon the committee's report of the facts of the contumacy, made on the committee's own knowledge and having the sanction of the oath of office of its members.[22]

A belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search without a warrant.[23] A warrant issued upon an information stating only that "affiant has good reason to believe and does believe" that defendant has contraband materials in his possession is clearly bad under the Fourth Amendment.[24] It is enough, however, if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that the offense charged had been committed.[25]

The requirement of the Fourth Amendment that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken nothing is left to the discretion of the officer executing the warrant.[26] Private papers of no pecuniary value, in which the sole interest of the Federal Government is their value as evidence against the owner in a contemplated criminal prosecution, may not be taken from the owner's house or office under a search warrant.[27]

Records, Reports and Subpoenas

Since the common law did not countenance compulsory self incrimination, many years pa.s.sed before the Supreme Court was called upon to interpret the const.i.tutional provisions bearing upon the privilege against such testimonial compulsion. Not until Boyd _v._ United States[28] did it have to meet the issue; there, pursuant to an act of Congress, a court had issued an order in a proceeding for the forfeiture of goods for fraudulent nonpayment of customs duties, requiring the claimant to produce in court his invoices covering the goods, on pain of having the allegation taken as confessed against him. The order and the statute which authorized it were held unconst.i.tutional in a notable opinion by Justice Bradley, as follows: "Breaking into a house and opening boxes and drawers are circ.u.mstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is [forbidden] * * * In this regard the Fourth and Fifth Amendments run almost into each other."[29] Thus the case established three propositions of far-reaching significance: (1) that a compulsory production of the private papers of the owner in such a suit was a search and seizure within the meaning of the Fourth Amendment;[30] (2) that in substance such seizure compelled him to be a witness against himself in violation of Amendment V,[31] and (3) that, because it was a violation of the Fifth Amendment, it was also an _unreasonable_ search and seizure under the Fourth.[32]

Only natural persons can resist the subpoena of private papers on the ground of self incrimination.[33] Even an individual cannot refuse to produce records which are in his custody on the plea that they might incriminate the owner or himself where the doc.u.ments belong to a corporation,[34] or to a labor union.[35] A bankrupt can be compelled to turn over records which are part of his estate.[36] Papers already in the custody of a United States court in consequence of their having been used by the owner himself as evidence on another proceeding may be used before a grand jury as a basis for an indictment for perjury.[37] A corporation may challenge an order for the production of records if it is unreasonable on grounds other than self incrimination, i.e., if it is too sweeping,[38] if the information sought is not relevant to any lawful inquiry,[39] or if it represents "a fis.h.i.+ng expedition" in quest of evidence of crime.[40] In Oklahoma Press Pub. Co. _v._ Walling,[41]

the question of the protection afforded by the Const.i.tution against the subpoena of corporate records was thoroughly reviewed. Justice Rutledge summarized the Court's views in the following words: "* * * the Fifth Amendment affords no protection by virtue of the self incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. * * * It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. * * * The requirement of 'probable cause, supported by oath or affirmation,'

literally applicable in the case of a warrant is satisfied, in that of an order for production, by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the doc.u.ments sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in 'describing the place to be searched, and the persons or things to be seized,' also literally applicable to warrant, comes down to specification of the doc.u.ments to be produced adequate, but not excessive, for the purposes of the relevant inquiry."[42]

As a means of enforcing a valid statute, the Government may require any person subject thereto "to keep a record showing whether he has in fact complied with it,"[43] and to submit that record to inspection by government officers.[44] It may also compel the filing of returns disclosing the amount of tax liability,[45] and of reports under oath showing instances where employees have worked in excess of hours of labor permitted by law.[46] Without violating either the Fourth or Fifth Amendments, a judicial decree enjoining illegal practices under the Ant.i.trust Act may provide that the Department of Justice shall be given access to all records and doc.u.ments of the corporation relating to the matter covered by the decree.[47] The Supreme Court has intimated, however, that record keeping requirements must be limited to data which are relevant to the effective administration of the law.[48]

Search and Seizure Incidental to Arrest

The right to search the person upon arrest has long been recognized[49]

but authority to search the premises upon which the arrest is made has been approved only in recent years. In Agnello _v._ United States,[50]

the Supreme Court a.s.serted that: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."[51] Books and papers used to carry on a criminal enterprise, which are in the immediate possession and control of a person arrested for commission of an offense in the presence of the officers may be seized when discovered in plain view during a search of the premises following the arrest.[52] The lawful arrest of persons at their place of business does not justify a search of desks and files in the offices where the arrest is made and seizure of private papers found thereon.[53] A search which is unlawfully undertaken is not made valid by the evidence of crime which it brings to light.[54]

By a five to four decision in Harris _v._ United States[55] the Court sustained, as an incident to a lawful arrest, a five hour search by four federal officers of every nook and cranny of a four-room apartment. It also upheld the seizure of papers unrelated to the crime for which the arrest was made, namely, Selective Service Registration cards which were discovered in a sealed envelope in the bottom of a bureau drawer. In justification of this conclusion, Chief Justice Vinson wrote: "Here the agents entered the apartment under the authority of lawful warrants of arrest. Neither was the entry tortious nor was the arrest which followed in any sense illegal. * * * The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the Mudge Oil Company. * * * If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."[56] In a dissenting opinion in which Justices Murphy and Rutledge concurred, Justice Frankfurter challenged the major premises announced by the Court. "To derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the Const.i.tution protects [against] both unauthorized arrest and unauthorized search. Authority to arrest does not dispense with the requirement of authority to search. * * * But even if the search was reasonable, it does not follow that the seizure was lawful. If the agents had obtained a warrant to look for the canceled checks, they would not be ent.i.tled to seize other items discovered in the process.

* * * The Court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search."[57] A more limited search in connection with an arrest was held valid in United States _v._ Rabinowitz.[58] In that case, government officers, armed with a valid warrant for arrest, had arrested respondent in his one-room office which was open to the public. Thereupon, over his objection, they searched the desk, safe and file cabinets in the office for about an hour and a half and seized 573 forged and altered stamps.

Justice Minton a.s.signed five reasons for holding that the search and seizure was reasonable: "(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money."[59] This decision also overruled an intermediate case, Trupiano _v._ United States,[60] whereby the practical effect of the Harris decision had been circ.u.mscribed by a ruling that even where a valid arrest is made, a search without a warrant is not permissible if the circ.u.mstances make it feasible to procure a warrant in advance.

Search of Vehicles

The Fourth Amendment has been construed "* * *, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a s.h.i.+p, motor boat, wagon, or automobile for contraband goods, where is it not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."[61] Where officers have reasonable grounds for searching an automobile which they are following, a search of the vehicle immediately after it has been driven into an open garage is valid.[62] The existence of reasonable cause for searching an automobile does not, however, warrant the search of an occupant thereof, although the contraband sought is of a character which might be concealed on the person.[63]

Use of Evidence

To remove the temptation to ignore const.i.tutional restraints on search and seizure, evidence obtained in violation thereof is made inadmissible against an accused in federal courts.[64] This is contrary to the practice prevailing in the majority of States and has been severely criticized as a matter of principle.[65] The Court has intimated recently that the federal exclusionary rule is not a command of the Fourth Amendment, but merely a judicially created rule of evidence which Congress could overrule. In Wolf _v._ Colorado,[66] it ruled that while that amendment is binding on the States, it does not prevent State courts from admitting evidence obtained by illegal search. With respect to the federal rule, Justice Frankfurter said: "* * * though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress, under its legislative powers, were to pa.s.s a statute purporting to negate the _Weeks_ doctrine. We would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own."[67] This rule does not prevent the use of evidence unlawfully obtained by individuals,[68] or by State officers,[69] unless federal agents had a part in the unlawful acquisition,[70] or unless the arrest and search were made for an offense punishable only by federal law.[71]

A search is deemed to be "a search by a federal official if he had a hand in it; * * * [but not] if evidence secured by State authorities is turned over to the federal authorities on a silver platter. The decisive factor * * * is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have partic.i.p.ated in it."[72] Samples of illicit goods const.i.tuting part of a quant.i.ty seized by federal officials under a valid search warrant may be used as evidence, whether or not the officers become civilly liable as trespa.s.sers _ab initio_, by reason of the fact that they unlawfully destroyed the remainder of the goods at the time the seizure was made.[73]

In Silver Thorne Lumber Co. _v._. United States,[74] the Court refused to permit the Government to subpoena corporate records of which it had obtained knowledge by an unlawful search. To permit "knowledge gained by the Government's own wrong" to be so used would do violence to the Bill of Rights.[75] But a defendant in a civil ant.i.trust suit may be required to produce records which had been previously subpoenaed before a grand jury, despite the fact that the grand jury was illegally const.i.tuted because women were excluded from the panel.[76] Where government agents lawfully obtained knowledge of the contents of a cancelled check during examination of the records of a government contractor, the admission of such check in evidence was held not to be an abuse of discretion even if the seizure of the check itself was deemed illegal.[77] The seizure of papers under a writ of replevin issued in a civil suit between private persons does not violate the Fourth and Fifth Amendments.[78]

Notes

[1] Carroll _v._ United States, 267 U.S. 132, 147, 149 (1925).

[2] Burdeau _v._ McDowell, 256 U.S. 465, 475 (1921).

[3] Den ex dem. Murray _v._ Hoboken Land & Improv. Co., 18 How. 272, 285 (1856).

[4] Nathanson _v._ United States, 290 U.S. 41, 47 (1933)

[5] Gouled _v._ United States, 255 U.S. 298 (1921).

[6] Taylor _v._ United States, 286 U.S. 1 (1932).

[7] Carroll _v._ United States, 267 U.S. 132 (1925).

[8] Hester _v._ United States, 265 U.S. 57 (1924).

[9] Ex parte Jackson, 96 U.S. 727, 733 (1878).

[10] Boyd _v._ United States, 116 U.S. 616 (1886); Hale _v._ Henkel, 201 U.S. 43 (1906).