Wolf v. Colorado
338 U.S. 25 (1949)

Annotate this Case

U.S. Supreme Court

Wolf v. Colorado, 338 U.S. 25 (1949)

Wolf v. Colorado

Nos. 17 and 18

Argued October 19, 1948

Decided June 27, 1949

338 U.S. 25



In a prosecution in a state court for a state crime, the Fourteenth Amendment of the Federal Constitution does not forbid the admission of relevant evidence even though obtained by an unreasonable search and seizure. Pp. 338 U. S. 25-33.

(a) Arbitrary intrusion into privacy by the police is prohibited by the Due Process Clause of the Fourteenth Amendment. Pp. 338 U. S. 27-28.

(b) While the doctrine of Weeks v. United States,232 U. S. 383, making evidence secured in violation of the Fourth Amendment inadmissible in federal courts, is adhered to, it is not imposed on the States by the Fourteenth Amendment. Pp. 338 U. S. 28-33.

117 Colo. 279, 321, 187 P.2d 926, 928, affirmed.

Judgments of conviction in two criminal prosecutions in a state court were sustained by the State Supreme Court against claims of denial of rights under the Federal Constitution. 117 Colo. 279, 321, 187 P.2d 926, 928. This Court granted certiorari. 333 U.S. 879. Affirmed, p. 338 U. S. 33.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The precise question for consideration is this: does a conviction by a State court for a State offense deny the "due process of law" required by the Fourteenth Amendment, solely because evidence that was admitted

Page 338 U. S. 26

at the trial was obtained under circumstances which would have rendered it inadmissible in a prosecution for violation of a federal law in a court of the United States because there deemed to be an infraction of the Fourth Amendment as applied in Weeks v. United States,232 U. S. 383? The Supreme Court of Colorado has sustained convictions in which such evidence was admitted, 117 Col. 279, 187 P.2d 926; 117 Col. 321, 187 P.2d 928, and we brought the cases here. 333 U.S. 879.

Unlike the specific requirements and restrictions placed by the Bill of Rights (Amendments I to VIII) upon the administration of criminal justice by federal authority, the Fourteenth Amendment did not subject criminal justice in the States to specific limitations. The notion that the "due process of law" guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution, and thereby incorporates them, has been rejected by this Court again and again, after impressive consideration. See, e.g., Hurtado v. California,110 U. S. 516; Twining v. New Jersey,211 U. S. 78; Brown v. Mississippi,297 U. S. 278; Palko v. Connecticut,302 U. S. 319. Only the other day, the Court reaffirmed this rejection after thorough reexamination of the scope and function of the Due Process Clause of the Fourteenth Amendment. Adamson v. California,332 U. S. 46. The issue is closed.

For purposes of ascertaining the restrictions which the Due Process Clause imposed upon the States in the enforcement of their criminal law, we adhere to the views expressed in Palko v. Connecticut, supra,302 U. S. 319. That decision speaks to us with the great weight of the authority, particularly in matters of civil liberty, of a court that included Mr. Chief Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone and Mr. Justice Cardozo, to name only the dead. In rejecting the suggestion that the Due Process Clause incorporated the original Bill of Rights, Mr. Justice Cardozo reaffirmed on behalf of that

Page 338 U. S. 27

Court a different but deeper and more pervasive conception of the Due Process Clause. This Clause exacts from the States for the lowliest and the most outcast all that is "implicit in the concept of ordered liberty." 302 U.S. at 302 U. S. 325.

Due process of law thus conveys neither formal nor fixed nor narrow requirements. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society. But basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.

To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty, but ignores the movements of a free society. It belittles the scale of the conception of due process. The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn, but to recognize that it is for the Court to draw it by the gradual and empiric process of "inclusion and exclusion." Davidson v. New Orleans,96 U. S. 97, 96 U. S. 104. This was the Court's insight when first called upon to consider the problem; to this insight, the Court has, on the whole, been faithful as case after case has come before it since Davidson v. New Orleans was decided.

The security of one's privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is basic to a free society. It is therefore implicit in "the concept of ordered liberty," and, as such, enforceable against the States through the Due Process

Page 338 U. S. 28

Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.

Accordingly, we have no hesitation in saying that, were a State affirmatively to sanction such police incursion into privacy, it would run counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing such a basic right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution.

In Weeks v. United States, supra, this Court held that, in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. This ruling was made for the first time in 1914. It was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution. The decision was a matter of judicial implication. Since then, it has been frequently applied, and we stoutly adhere to it. But the immediate question is whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logically relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. As a matter of inherent reason, one would suppose this to be an issue as to which men with complete devotion to the protection of the right

Page 338 U. S. 29

of privacy might give different answers. When we find that, in fact, most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right. The contrariety of views of the States is particularly impressive in view of the careful reconsideration which they have given the problem in the light of the Weeks decision.

"I. Before the Weeks decision, 27 States had passed on the admissibility of evidence obtained by unlawful search and seizure."

" (a) Of these, 26 States opposed the Weeks doctrine. (SeeAppendix, Table A.)"

" (b) Of these, 1 State anticipated the Weeks doctrine. (Table B.)"

"II. Since the Weeks decision, 47 States all told have passed on the Weeks doctrine. (Table C.)"

" (a) Of these, 20 passed on it for the first time."

"~ (1) Of the foregoing States, 6 followed the Weeks doctrine. (Table D.)"

"~ (2) Of the foregoing States, 14 rejected the Weeks doctrine. (Table E.)"

" (b) Of these, 26 States reviewed prior decisions contrary to the Weeks doctrine."

"~ (1) Of these, 10 States have followed Weeks, overruling or distinguishing their prior decisions. (Table F.)"

"~ (2) Of these, 16 States adhered to their prior decisions against Weeks. (Table G.)"

" (c) Of these, 1 State repudiated its prior formulation of the Weeks doctrine. (Table H.)"

"III. As of today, 31 States reject the Weeks doctrine, 16 States are in agreement with it. (Table I.) "

Page 338 U. S. 30

"IV. Of 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which have passed on the question, none has held evidence obtained by illegal search and seizure inadmissible. (Table J.)"

The jurisdictions which have rejected the Weeks doctrine have not left the right to privacy without other means of protection. [Footnote 1] Indeed, the exclusion of evidence

Page 338 U. S. 31

is a remedy which directly serves only to protect those upon whose person or premises something incriminating has been found. We cannot, therefore, regard it as a departure from basic standards to remand such persons, together with those who emerge scatheless from a search, to the remedies of private action and such protection as the internal discipline of the police, under the eyes of an alert public opinion, may afford. Granting that, in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective. Weighty testimony against such an insistence on our own view is furnished by the opinion of Mr. Justice (then Judge) Cardozo in People v. Defore, 242 N.Y. 13, 150 N.E. 585. [Footnote 2] We cannot brush aside the experience of States which deem the incidence of such

Page 338 U. S. 32

conduct by the police too slight to call for a deterrent remedy not by way of disciplinary measures, but by overriding the relevant rules of evidence. There are, moreover, reasons for excluding evidence unreasonably obtained by the federal police which are less compelling in the case of police under State or local authority. The public opinion of a community can far more effectively be exerted against oppressive conduct on the part of police directly responsible to the community itself than can local opinion, sporadically aroused, be brought to bear upon

Page 338 U. S. 33

remote authority pervasively exerted throughout the country.

We hold, therefore, that, in a prosecution in a State court for a State crime, the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. And though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress, under its legislative powers, were to pass a statute purporting to negate the Weeks doctrine. We would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own. Problems of a converse character, also not before us, would be presented should Congress, under § 5 of the Fourteenth Amendment, undertake to enforce the rights there guaranteed by attempting to make the Weeks doctrine binding upon the States.


[Footnote 1]

The common law provides actions for damages against the searching officer, e.g., Entick v. Carrington, 2 Wils. 275, 19 How.St.Tr. 1029; Grumon v. Raymond, 1 Conn. 40; Sandford v. Nichols, 13 Mass. 286; Halsted v. Brice, 13 Mo. 171; Hussey v. Davis, 58 N.H. 317; Reed v. Lucas, 42 Texas 529; against one who procures the issuance of a warrant maliciously and without probable cause, e.g., Gulsby v. Louisville & N. R. Co., 167 Ala. 122, 52 So. 392; Whitson v. May, 71 Ind. 269; Kretabiel v. Henkle, 152 Iowa 604, 129 N.W. 945; Olson v. Tvete, 46 Minn. 225, 48 N.W. 914; Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223; Doane v. Anderson, 60 Hun 586, 15 N.Y.S. 459; Shall v. Minneapolis, St. P. & S.S. M. R. Co., 156 Wis.195, 145 N.W. 649; against a magistrate who has acted without jurisdiction in issuing a warrant, e.g., Williams v. Kozak, 280 F. 373 (C.A.4th Cir.); Grumon v. Raymond, 1 Conn. 40; Kennedy v. Terrill, Hardin (Ky.) 490; Shaw v. Moon, 117 Ore. 558, 245 P. 318, and against persons assisting in the execution of an illegal search, e.g., Hebrew v. Pulis, 73 N.J.L. 621, 625, 64 A. 121, 122; Cartwright v. Canode, 138 S.W. 792 (Tex.Civ.App.), aff'd, 106 Texas 502, 171 S.W. 696. One may also without liability use force to resist an unlawful search. E.g., Commonwealth v. Martin, 105 Mass. 178; State v. Mann, 27 N.C. 45.

Statutory sanctions in the main provide for the punishment of one maliciously procuring a search warrant or willfully exceeding his authority in exercising it. E.g., 18 U.S.C. (1946 ed.) §§ 630, 631; Ala.Code, Tit. 15, § 99 (1940); Ariz.Code Ann. § 44-3513 (1939); Fla.Stat.Ann. §§ 933.16, 933.17 (1944); Iowa Code §§ 751.38, 751.39 (1946); Mont.Rev.Code Ann. §§ 10948, 10952 (1935); Nev.Comp.Laws §§ 10425, 10426 (1929); N.Y.Crim.Code §§ 811, 812, N.Y.Penal Law §§ 1786, 1847; N.D.Rev.Code §§ 12-1707, 12-1708 (1943); Okla.Stat.Ann., Tit. 21, §§ 536, 585, Tit. 22, §§ 1239, 1240 (1937); Ore.Comp.Laws Ann. § 26-1717 (1940); S.D.Code §§ 13.1213, 13.1234, 34.9904, 34.9905 (1939); Tenn.Code Ann. § 1 1905 (1934). Some statutes more broadly penalize unlawful searches. E.g., 18 U.S.C. (1946 ed.) § 53a; Idaho Code Ann. §§ 17-1004, 17-1024 (1932); Minn.Stat. §§ 613.54, 621.17 (1945); Va.Code Ann. § 4822d (Michie, 1942); Wash.Rev.Stat.Ann. §§ 2240-1, 2240-2. Virginia also makes punishable one who issues a general search warrant or a warrant unsupported by affidavit. Va.Code Ann. § 4822e (Michie, 1942). A few States have provided statutory civil remedies. See, e.g., Ga.Code Ann. § 27-301 (1935); Ill.Rev.Stat., c. 38, § 698 (Smith-Hurd, 1935); Miss.Code Ann. § 1592 (1942). And in one State, misuse of a search warrant may be an. abuse of process punishable as contempt of court. See Mich.Stat.Ann. § 27.511 (1938).

[Footnote 2]

"We hold, then, with the defendant that the evidence against him was the outcome of a trespass. The officer might have been resisted, or sued for damages, or even prosecuted for oppression (Penal Law, §§ 1846, 1847). He was subject to removal or other discipline at the hands of his superiors. These consequences are undisputed. The defendant would add another. We must determine whether evidence of criminality, procured by an act of trespass, is to be rejected as incompetent for the misconduct of the trespasser. . . ."

"Those judgments [Weeks v. United States and cases which followed it] do not bind us, for they construe provisions of the Federal Constitution, the Fourth and Fifth Amendments, not applicable to the States. Even though not binding, they merit our attentive scrutiny. . . ."

"In so holding [i.e., that evidence procured by unlawful search is not incompetent], we are not unmindful of the argument that, unless the evidence is excluded, the statute becomes a form, and its protection an illusion. This has a strange sound when the immunity is viewed in the light of its origin and history. The rule now embodied in the statute was received into English law as the outcome of the prosecution of Wilkes and Entick. . . . Wilkes sued the messengers who had ransacked his papers, and recovered a verdict of

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