After admission of evidence obtained by illegal entries into his
home, petitioner was convicted in a California state court on
charges of horse-race bookmaking and related offenses under the
state anti-gambling laws. Prior to petitioner's arrest, and while
he and his wife were absent from their home, a police officer
arranged with a locksmith to go there and make a key to the door.
On three different occasions, without a search warrant or other
process, officers and a technician entered the home by means of
this key and installed a concealed microphone in the hall, and
later moved it to petitioner's bedroom and thence to a closet. At
petitioner's trial, officers were allowed to testify, over
objection, to incriminating conversations heard through the
listening apparatus. Also admitted in evidence were a federal
wagering tax stamp, which petitioner had on his person when
arrested, and documents from the office of the United States
Collector of Internal Revenue showing his application for the stamp
and his return to the Collector.
Held: The conviction is sustained as not violative of
the Fourteenth Amendment or of federal law. Pp.
347 U. S.
129-139.
113 Cal. App.
2d 460, 248 P.2d 502, affirmed.
For opinion of MR. JUSTICE JACKSON, in which THE CHIEF JUSTICE,
MR. JUSTICE REED and MR. JUSTICE MINTON join,
see p.
347 U. S. 129.
For opinion of MR. JUSTICE CLARK, concurring in the judgment,
see p.
347 U. S.
138.
For dissenting opinion of MR. JUSTICE BLACK, in which MR.
JUSTICE DOUGLAS joins,
see p.
347 U. S.
139.
For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR.
JUSTICE BURTON,
see p.
347 U. S.
142.
For dissenting opinion of MR. JUSTICE DOUGLAS,
see p.
347 U. S.
149.
For appendix to opinion of MR. JUSTICE DOUGLAS,
see p.
347 U. S.
153.
Petitioner's conviction in a California state court of offenses
under the state anti-gambling laws was affirmed on appeal.
113 Cal. App.
2d 460, 248 P.2d 502. The
Page 347 U. S. 129
State Supreme Court denied a petition for hearing. This Court
granted certiorari. 345 U.S. 903.
Affirmed, p.
347 U. S.
138.
MR. JUSTICE JACKSON announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE, MR. JUSTICE REED and MR.
JUSTICE MINTON join.
This case involves constitutional questions growing out of
methods employed to convict petitioner on charges of horse-race
bookmaking and related offenses [
Footnote 1] against the anti-gambling laws of California.
[
Footnote 2] Petitioner
exhausted all avenues to relief under state procedures, and then
sought review here of duly raised federal issues.
We granted certiorari [
Footnote
3] on a petition which tendered four questions. However,
petitioner's counsel has now presented two additional questions,
one concerning the application of an immunity statute of California
and another attacking certain instructions given to the jury by the
trial court. Neither of these was mentioned in the petition. We
disapprove the practice of smuggling additional questions into a
case after we grant certiorari. The issues here are fixed by the
petition unless we limit the grant, as frequently we do to avoid
settled, frivolous
Page 347 U. S. 130
or state law questions. We do not take up the questions numbered
3 and 6 of petitioner's brief, because they are improperly
presented.
Upon his arrest, petitioner had on his person a federal wagering
tax stamp bearing his name, home address and the date, November 5,
1951. Against objection, it and other documentary evidence from the
office of the United States Collector of Internal Revenue was
received to show petitioner's application for the wagering tax
stamp and his return to the Collector under the federal law. These
documents were made pursuant to the Federal Act imposing wagering
taxes, 65 Stat. 529, 26 U.S.C. (Supp. V) § 3285
et seq.,
held constitutional by this Court in
United States v.
Kahriger, 345 U. S. 22. The
claim is made that it was error as a matter of federal law to admit
this evidence and also that payment of the federal tax resulted in
a federal license to conduct the wagering business. This statute
does not make such records or stamps confidential or privileged
but, on the contrary, expressly requires the name and place of
business of each such taxpayer to be made public. 53 Stat. 395, 26
U.S.C. § 3275. Petitioner's contentions are without substance or
merit in view of the express provision of the statute that payment
of the tax does not exempt any person from penalty or punishment by
state law and does not authorize commencement or continuance of
such business. 53 Stat. 395, 26 U.S.C. § 3276; 65 Stat. 531, 26
U.S.C. (Supp. V) § 3292. [
Footnote
4]
But the questions raised by the officers' conduct while
investigating this case are serious. The police strongly suspected
petitioner of illegal bookmaking, but were without proof of it. On
December 1, 1951, while Irvine and his wife were absent from their
home, an officer arranged
Page 347 U. S. 131
to have a locksmith go there and make a door key. Two days
later, again in the absence of occupants, officers and a technician
made entry into the home by the use of this key and installed a
concealed microphone in the hall. A hole was bored in the roof of
the house, and wires were strung to transmit to a neighboring
garage whatever sounds the microphone might pick up. Officers were
posted in the garage to listen. On December 8, police again made
surreptitious entry and moved the microphone, this time hiding it
in the bedroom. Twenty days later, they again entered and placed
the microphone in a closet, where the device remained until its
purpose of enabling the officers to overhear incriminating
statements was accomplished.
We should note that this is not a conventional instance of "wire
tapping." Here, the apparatus of the officers was not in any way
connected with the telephone facilities, there was no interference
with the communications system, there was no interception of any
message. All that was heard through the microphone was what an
eavesdropper, hidden in the hall, the bedroom, or the closet, might
have heard. We do not suppose it is illegal to testify to what
another person is heard to say merely because he is saying it into
a telephone. We cannot sustain the contention that the conduct or
reception of the evidence violated the Federal Communications Act.
48 Stat. 1103, 47 U.S.C. § 605.
Cf. Nardone v. United
States, 308 U. S. 338;
Goldman v. United States, 316 U.
S. 129;
Schwartz v. Texas, 344 U.
S. 199.
At the trial, officers were allowed to testify to conversations
heard through their listening installations. The snatches of
conversation which the prosecution thought useful were received in
evidence. They were in the lingo of the race track, and need not be
recited, but the jury might well have regarded them as
incriminating. The testimony was received under objection,
properly
Page 347 U. S. 132
raising the question that it was constitutionally inadmissible,
since obtained by methods which violate the Fourteenth
Amendment.
Each of these repeated entries of petitioner's home without a
search warrant or other process was a trespass, and probably a
burglary, for which any unofficial person should be, and probably
would be, severely punished. Science has perfected amplifying and
recording devices to become frightening instruments of surveillance
and invasion of privacy, whether by the policeman, the blackmailer,
or the busy-body. That officers of the law would break and enter a
home, secrete such a device, even in a bedroom, and listen to the
conversation of the occupants for over a month would be almost
incredible if it were not admitted. Few police measures have come
to our attention that more flagrantly, deliberately, and
persistently violated the fundamental principle declared by the
Fourth Amendment as a restriction on the Federal Government
that
"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."
The decision in
Wolf v. Colorado, 338 U. S.
25,
338 U. S. 27,
for the first time established that "[t]he security of one's
privacy against arbitrary intrusion by the police" is embodied in
the concept of due process found in the Fourteenth Amendment.
But
Wolf, for reasons set forth therein, declined to
make the subsidiary procedural and evidentiary doctrines developed
by the federal courts limitations on the states. On the contrary,
it declared,
"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. "
Page 347 U. S. 133
338 U. S. 338 U.S.
25,
338 U. S. 33.
See Stefanelli v. Minard, 342 U.
S. 117,
342 U. S. 119,
342 U. S. 122.
That holding would seem to control here.
An effort is made, however, to bring this case under the sway of
Rochin v. California, 342 U. S. 165.
That case involved, among other things, an illegal search of the
defendant's person. But it also presented an element totally
lacking here -- coercion (as the Court noted, p.
342 U. S.
173), applied by a physical assault upon his person to
compel submission to the use of a stomach pump. This was the
feature which led to a result in
Rochin contrary to that
in
Wolf. Although
Rochin raised the search and
seizure question, this Court studiously avoided it, and never once
mentioned the
Wolf case. Obviously, it thought that
illegal search and seizure alone did not call for reversal. However
obnoxious are the facts in the case before us, they do not involve
coercion, violence or brutality to the person, but rather a
trespass to property, plus eavesdropping.
It is suggested, however, that, although we affirmed the
conviction in
Wolf, we should reverse here because this
invasion of privacy is more shocking, more offensive, than the one
involved there. The opinions in
Wolf were written entirely
in the abstract, and did not disclose the details of the
constitutional violation. Actually, the search was offensive to the
law in the same respect, if not the same degree, as here. A deputy
sheriff and others went to a doctor's office without a warrant and
seized his appointment book, searched through it to learn the names
of all his patients, looked up and interrogated certain of them,
and filed an information against the doctor on the information that
the District Attorney had obtained from the books. The books also
were introduced in evidence against the doctor at his trial.
We are urged to make inroads upon Wolf by holding that it
applies only to searches and seizures which produce
Page 347 U. S. 134
on our minds a mild shock, while, if the shock is more serious,
the states must exclude the evidence or we will reverse the
conviction. We think that the
Wolf decision should not be
overruled, for the reasons so persuasively stated therein. We
think, too, that a distinction of the kind urged would leave the
rule so indefinite that no state court could know what it should
rule in order to keep its processes on solid constitutional
ground.
Even as to the substantive rule governing federal searches in
violation of the Fourth Amendment, both the Court and individual
Justices have wavered considerably.
Compare Harris v. United
States, 331 U. S. 145;
Trupiano v. United States, 334 U.
S. 699;
United States v. Rabinowitz,
339 U. S. 56;
Brinegar v. United States, 338 U.
S. 160;
Goldman v. United States, 316 U.
S. 129;
On Lee v. United States, 343 U.
S. 747. Never until June of 1949 did this Court hold the
basic search and seizure prohibition in any way applicable to the
states under the Fourteenth Amendment. At that time, as we pointed
out, thirty-one states were not following the federal rule
excluding illegally obtained evidence, while sixteen were in
agreement with it. Now that the
Wolf doctrine is known to
them, state courts may wish further to reconsider their evidentiary
rules. But to upset state convictions even before the states have
had adequate opportunity to adopt or reject the rule would be an
unwarranted use of federal power. The chief burden of administering
criminal justice rests upon state courts. To impose upon them the
hazard of federal reversal for noncompliance with standards as to
which this Court and its members have been so inconstant and
inconsistent would not be justified. We adhere to
Wolf as
stating the law of search and seizure cases and decline to
introduce vague and subjective distinctions.
Whether to exclude illegally obtained evidence in federal trials
is left largely to our discretion, for admissibility
Page 347 U. S. 135
of evidence is governed "by the principles of the common law as
they may be interpreted by the courts of the United States in the
light of reason and experience." Fed.Rules Crim.Proc. rule 26. As
we have pointed out, reason has led state courts to differing
conclusions, but about two-thirds of them to acceptance of the
illegally obtained evidence. What actual experience teaches, we
really do not know. Our cases evidence the fact that the federal
rule of exclusion and our reversal of conviction for its violation
are not sanctions which put an end to illegal search and seizure by
federal officers. The rule was announced in 1914, in
Weeks v.
United States, 232 U. S. 383. The
extent to which the practice was curtailed, if at all, is doubtful.
The lower federal courts, and even this Court, [
Footnote 5] have repeatedly been constrained to
enforce
Page 347 U. S. 136
the rule after its violation. There is no reliable evidence
known to us that inhabitants of those states which exclude the
evidence suffer less from lawless searches and seizures than those
of states that admit it. Even this Court has not seen fit to
exclude illegally seized evidence in federal cases unless a federal
officer perpetrated the wrong. Private detectives may use methods
to obtain evidence not open to officers of the law.
Burdeau v.
McDowell, 256 U. S. 465;
see McGuire v. United States, 273 U. S.
95,
273 U. S. 99;
cf. Feldman v. United States, 322 U.
S. 487;
Lustig v. United States, 338 U. S.
74. And the lower federal courts, treating the Fourth
Amendment right as personal to the one asserting it, have held that
he who objects must claim some proprietary or possessory interest
in that which was unlawfully searched or seized.
E.g., Connolly
v. Medalie, 58 F.2d 629;
Steeber v. United States,
198 F.2d 615, 617.
See Goldstein v. United States,
316 U. S. 114,
316 U. S. 121;
Wolf v. Colorado, supra, at
338 U. S. 30-31.
Cf. United States v. Jeffers, 342 U. S.
48.
It must be remembered that petitioner is not invoking the
Constitution to prevent or punish a violation of his federal right
recognized in
Wolf or to recover reparations for the
violation. He is invoking it only to set aside his own conviction
of crime. That the rule of exclusion and reversal results in the
escape of guilty persons is more capable of demonstration than that
it deters invasions of right by the police. The case is made, so
far as the police are concerned, when they announce that they have
arrested their man. Rejection of the evidence does nothing to
punish the wrong-doing official, while it may, and likely will,
release the wrong-doing defendant. It deprives society of its
remedy against one lawbreaker because he has been pursued by
another. It protects one against whom incriminating evidence is
discovered, but does nothing to protect innocent persons who are
the victims of illegal but fruitless searches. The disciplinary or
educational
Page 347 U. S. 137
effect of the court's releasing the defendant for police
misbehavior is so indirect as to be no more than a mild deterrent
at best. Some discretion is still left to the states in criminal
cases, for which they are largely responsible, and we think it is
for them to determine which rule best serves them.
But admission of the evidence does not exonerate the officers
and their aides if they have violated defendant's constitutional
rights. It was pointed out in
Wolf v. Colorado, supra,
that other remedies are available for official lawlessness,
although too often those remedies are of no practical avail. The
difficulty with them is in part due to the failure of interested
parties to inform of the offense. No matter what an illegal raid
turns up, police are unlikely to inform on themselves or each
other. If it turns up nothing incriminating, the innocent victim
usually does not care to take steps which will air the fact that he
has been under suspicion. And the prospect that the guilty may
capitalize on the official wrongdoing in his defense, or to obtain
reversal from a higher court, removes any motive he might have to
inform.
It appears to the writer, in which view he is supported by THE
CHIEF JUSTICE, that there is no lack of remedy if an
unconstitutional wrong has been done in this instance without
upsetting a justifiable conviction of this common gambler. If the
officials have willfully deprived a citizen of the United States of
a right or privilege secured to him by the Fourteenth Amendment,
that being the right to be secure in his home against unreasonable
searches, as defined in
Wolf v. Colorado, supra, their
conduct may constitute a federal crime under 62 Stat. 696, 18
U.S.C. (Supp. III) § 242. This section provides that whoever, under
color of any law, statute, ordinance, regulation or custom,
willfully subjects any inhabitant of any state to the deprivation
of any rights, privileges or immunities secured or protected by the
Constitution of the United
Page 347 U. S. 138
States shall be fined or imprisoned.
See Williams v. United
States, 341 U. S. 97;
Screws v. United States, 325 U. S. 91. It
does not appear that the statute of limitations yet bars
prosecutions. 45 Stat. 51, 18 U.S.C. § 582. We believe the Clerk of
this Court should be directed to forward a copy of the record in
this case, together with a copy of this opinion, for attention of
the Attorney General of the United States. However, MR. JUSTICE
REED and MR. JUSTICE MINTON do not join in this paragraph.
Judgment affirmed.
[
Footnote 1]
Keeping premises with paraphernalia for the purpose of recording
and registering bets on horse racing; receiving money and the
equivalent thereof which had been or was to be wagered on horse
races, and recording and registering bets on horse races.
[
Footnote 2]
Deering's Cal.Penal Code Ann.1949, § 337a(1), (2), (3), and
(4).
[
Footnote 3]
345 U.S. 903.
[
Footnote 4]
Petitioner's question number 2, which challenges the State's use
of "compelled evidence" obtained under the federal wagering
statute, is answered in
United States v. Kahriger, supra,
at
345 U. S.
32.
[
Footnote 5]
E.g., Silverthorne Lumber Co. v. United States,
251 U. S. 385;
Gouled v. United States, 255 U. S. 298;
Amos v. United States, 255 U. S. 313;
Agnello v. United States, 269 U. S.
20;
Byars v. United States, 273 U. S.
28;
Gambino v. United States, 275 U.
S. 310;
Go-Bart Importing Co. v. United States,
282 U. S. 344;
United States v. Lefkowitz, 285 U.
S. 452;
Taylor v. United States, 286 U. S.
1;
Grau v. United States, 287 U.
S. 124;
Nathanson v. United States,
290 U. S. 41;
United States v. Di Re, 332 U. S. 581;
Johnson v. United States, 333 U. S.
10;
Trupiano v. United States, 334 U.
S. 699;
McDonald v. United States, 335 U.
S. 451;
Lustig v. United States, 338 U. S.
74;
United States v. Jeffers, 342 U. S.
48. The Court has also cited the doctrine with approval
in many related cases.
E.g., Perlman v. United States,
247 U. S. 7;
Burdeau v. McDowell, 256 U. S. 465;
Carroll v. United States, 267 U.
S. 132;
McGuire v. United States, 273 U. S.
95;
Marron v. United States, 275 U.
S. 192;
Olmstead v. United States, 277 U.
S. 438;
Palko v. Connecticut, 302 U.
S. 319;
Goldstein v. United States,
316 U. S. 114;
McNabb v. United States, 318 U. S. 332;
Feldman v. United States, 322 U.
S. 487;
Davis v. United States, 328 U.
S. 582;
Zap v. United States, 328 U.
S. 624;
Harris v. United States, 331 U.
S. 145;
United States v. Wallace & Tiernan
Co., 336 U. S. 793;
United States v. Rabinowitz, 339 U. S.
56;
On Lee v. United States, 343 U.
S. 747.
See Appendix to dissenting opinion of
MR. JUSTICE FRANKFURTER in
Harris v. United States, supra,
at page
331 U. S.
175.
MR. JUSTICE CLARK, concurring.
Had I been here in 1949, when Wolf was decided, I would have
applied the doctrine of
Weeks v. United States,
232 U. S. 383
(1914), to the states. But the Court refused to do so then, and it
still refuses today. Thus,
Wolf remains the law and, as
such, is entitled to the respect of this Court's membership.
Of course, we could sterilize the rule announced in
Wolf by adopting a case-by-case approach to due process in
which inchoate notions of propriety concerning local police conduct
guide our decisions. But this makes for such uncertainty and
unpredictability that it would be impossible to foretell -- other
than by guess-work -- just how brazen the invasion of the intimate
privacies of one's home must be in order to shock itself into the
protective arms of the Constitution. In truth, the practical result
of this
ad hoc approach is simply that, when five Justices
are sufficiently revolted by local police action, a conviction is
overturned and a guilty man may go free.
Rochin bears
witness to this. We may thus vindicate the abstract principle of
due process, but we do not shape the conduct of local police one
whit; unpredictable reversals on dissimilar fact situations are not
likely to curb the zeal of those police and prosecutors who may be
intent on racking up a high percentage of successful
prosecutions.
Page 347 U. S. 139
I do not believe that the extension of such a vacillating course
beyond the clear cases of physical coercion and brutality, such as
Rochin, would serve a useful purpose.
In light of the "incredible" activity of the police here, it is
with great reluctance that I follow
Wolf. Perhaps strict
adherence to the tenor of that decision may produce needed converts
for its extinction. Thus, I merely concur in the judgment of
affirmance.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs,
dissenting.
I would reverse this conviction because the petitioner Irvine
was found guilty of a crime and sentenced to prison on evidence
extorted from him by the Federal Government in violation of the
Fifth Amendment.
Federal law makes it a crime punishable by fine, imprisonment,
or both for a person to run a gambling business without making a
report to the Government and buying a federal wagering tax stamp,
both of which reveal his gambling operations. [
Footnote 2/1] Petitioner made the necessary report
of his gambling activities in California and bought the required
tax stamp. The information he gave and the stamp he bought were
used in this case to convict and sentence him to prison for
violating California's anti-gambling law. For reasons given in my
dissent in
United States v. Kahriger, 345 U. S.
22,
345 U. S. 36, I
believe the federal law that extracted the disclosures and required
the tax stamp violates the Fifth Amendment's command that a person
shall not be compelled to be a witness against himself. But even
though the law is valid, as the Court held,
use of such
forced confessions to convict the confessors still amounts to
compelling a person to testify against himself in violation of the
Fifth Amendment.
Page 347 U. S. 140
I cannot agree that the Amendment's guarantee against
self-incrimination testimony can be spirited away by the ingenious
contrivance of using federally extorted confessions to convict of
state crimes and vice versa. [
Footnote
2/2] Licensing such easy evasion of the Amendment has proven a
heavy drain on its vitality, although no such debilitating
interpretation was given the Amendment by this Court until it
decided
United States v. Murdock in 1931, one hundred and
forty years after the Bill of Rights was adopted. [
Footnote 2/3] That construction was rested on the
premise that a state and the United States are so separate and
foreign to one another that neither of them need protect witnesses
against being forced to admit offenses against the laws of the
other. [
Footnote 2/4] This
treatment of the states and the Federal Government as though they
were entirely foreign to each other is wholly conceptualistic and
cannot justify such a narrow interpretation of the Fifth
Amendment's language and the resulting frustration of its
purpose.
I think the Fifth Amendment, of itself, forbids all federal
agents, legislative, executive and judicial, to force a person to
confess a crime; forbids the use of such a federally coerced
confession in any court, state or federal; and forbids all federal
courts to use a confession which a person has been compelled to
make against his will.
Page 347 U. S. 141
The Fifth Amendment forbids the Federal Government and the
agents through which it acts -- courts, grand juries, prosecutors,
marshals or other officers -- to use physical torture,
psychological pressure, threats of fines, imprisonment or
prosecution, or other governmental pressure to force a person to
testify against himself. And if the Federal Government does extract
incriminating testimony, as the Court has held it may in compelling
gamblers to confess, the immunity provided by the Amendment should
at the very least, prevent the use of such testimony in any court,
federal or state. [
Footnote 2/5]
The use of such testimony is barred, even though the Fifth
Amendment may not of itself prohibit the states or their agents
from extorting incriminating testimony. [
Footnote 2/6] The Amendment does plainly prohibit all
federal agencies from using their power to force self-incriminatory
statements. Consequently, since the Amendment is the supreme law of
the land and is binding on all American judges, the use of
federally coerced testimony to convict a person of crime in any
court, state or federal, is forbidden.
The Fifth Amendment not only forbids agents of the Federal
Government to compel a person to be a witness against himself; it
forbids federal courts to convict persons on their own forced
testimony, whatever "sovereign" -- federal or state -- may have
compelled it. Otherwise, the constitutional mandate against
self-incrimination is an illusory safeguard that collapses whenever
a confession is extorted by anyone other than the Federal
Government.
Though not essential to disposition of this case, it seems
appropriate to add that I think the Fourteenth Amendment makes the
Fifth Amendment applicable to states,
Page 347 U. S. 142
and that state courts, like federal courts, are therefore barred
from convicting a person for crime on testimony which either state
or federal officers have compelled him to give against himself.
[
Footnote 2/7] The construction I
give to the Fifth and Fourteenth Amendments makes it possible for
me to adhere to what we said in
Ashcraft v. Tennessee,
322 U. S. 143,
322 U. S. 155,
that
"The Constitution of the United States stands as a bar against
the conviction of any individual in an American court by means of a
coerced confession."
So far as this case is concerned, it is enough for me that
Irvine was convicted in a state court on a confession coerced by
the Federal Government. I believe this frustrates a basic purpose
of the Fifth Amendment -- to free Americans from fear that federal
power could be used to compel them to confess conduct or beliefs in
order to take away their life, liberty or property. For this
reason, I would reverse Irvine's conviction.
It has been suggested that the Court should call on the Attorney
General to investigate this record in order to start criminal
prosecutions against certain California officers. I would strongly
object to any such action by this Court. It is inconsistent with my
own view of the judicial function in our government. Prosecution,
or anything approaching it, should, I think, be left to government
officers whose duty that is.
[
Footnote 2/1]
65 Stat. 529, 26 U.S.C. (Supp. V) §§ 3285, 3287.
[
Footnote 2/2]
See my dissent in
Feldman v. United States,
322 U. S. 487,
322 U. S.
494.
[
Footnote 2/3]
284 U. S. 284 U.S.
141,
and see 26 U. S. Saline
Bank of Virginia, 1 Pet. 100;
Brown v. Walker,
161 U. S. 591,
161 U. S. 606,
161 U. S. 608;
Ballmann v. Fagin, 200 U. S. 186;
Vajtauer v. Commissioner of Immigration, 273 U.
S. 103;
United States v. Murdock, 290 U.
S. 389,
290 U. S.
396.
[
Footnote 2/4]
Reliance for this view was placed mainly on two English cases,
King of the Two Sicilies v. Willcox, 7 State Trials (N.S.)
1050, and
Queen v. Boyes, 1 B. & S. 311. 284 U.S. at
284 U. S. 149.
See discussion of these two cases as related to the Fifth
Amendment privilege against self-incrimination in Grant, Immunity
from Compulsory Self-Incrimination, 9 Temp.L.Q. 57-70 and 194-212,
particularly 59-62 and 196-204.
[
Footnote 2/5]
Counselman v. Hitchcock, 142 U.
S. 547.
[
Footnote 2/6]
See Barron v.
Baltimore, 7 Pet. 243.
[
Footnote 2/7]
Adamson v. California, 332 U. S.
46,
332 U. S. 68
(dissenting opinion);
Rochin v. California, 342 U.
S. 165,
342 U. S. 174
(concurring opinion).
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON joins,
dissenting.
Mere failure to have an appropriate warrant for arrest or
search, without aggravating circumstances of misconduct in
obtaining evidence, invalidates a federal conviction helped by such
an unreasonable search and seizure.
Page 347 U. S. 143
Such was the construction placed upon the Fourth Amendment by
Weeks v. United States, 232 U. S. 383. But
Wolf v. Colorado, 338 U. S. 25, held
that the rule of the
Weeks case was not to be deemed part
of the Due Process Clause of the Fourteenth Amendment, and hence
was not binding upon the States. Still more recently, however, in
Rochin v. California, 342 U. S. 165, the
Court held that "stomach pumping" to obtain morphine capsules,
later used as evidence in a trial, was offensive to prevailing
notions of fairness in the conduct of a prosecution and therefore
invalidated a resulting conviction as contrary to the Due Process
Clause.
The comprehending principle of these two cases is at the heart
of "due process." The judicial enforcement of the Due Process
Clause is the very antithesis of a Procrustean rule. In its first
full-dress discussion of the Due Process Clause of the Fourteenth
Amendment, the Court defined the nature of the problem as a
"gradual process of judicial inclusion and exclusion, as the
cases presented for decision shall require, with the reasoning on
which such decisions may be founded."
Davidson v. New Orleans, 96 U. S.
97,
96 U. S. 104.
The series of cases whereby, in the light of this attitude, the
scope of the Due Process Clause has been unfolded is the most
striking, because the liveliest, manifestation of the wide and deep
areas of law in which adjudication "depends upon differences of
degree. The whole law does so as soon as it is civilized." Holmes,
J., concurring in
LeRoy Fibre Co. v. Chicago, M. & St. P.
R. Co., 232 U. S. 340,
232 U. S. 354.
It is especially true of the concept of due process that between
the differences of degree which that inherently undefinable concept
entails "and the simple universality of the rules in the Twelve
Tables, or the Leges Barbarorum, there lies the culture of two
thousand years."
Ibid.
In the
Wolf case, the Court rejected one absolute. In
Rochin, it rejected another.
Page 347 U. S. 144
In holding that not all conduct which by federal law is an
unreasonable search and seizure vitiates a conviction in connection
with which it transpires,
Wolf did not and could not
decide that, as long as relevant evidence adequately supports a
conviction, it is immaterial how such evidence was acquired. For
the exact holding of that case is defined by the question to which
the opinion addressed itself:
"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 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?"
Thus,
Wolf did not change prior applications of the
requirements of due process, whereby this Court considered the
whole course of events by which a conviction was obtained and was
not restricted to consideration of the trustworthiness of the
evidence.
Rochin decided that the Due Process Clause of the
Fourteenth Amendment does not leave States free in their
prosecutions for crime. The Clause puts limits on the wide
discretion of a State in the process of enforcing its criminal law.
The holding of the case is that a State cannot resort to methods
that offend civilized standards of decency and fairness. The
conviction in the
Rochin case was found to offend due
process not because evidence had been obtained through an
unauthorized search and seizure or was the fruit of compulsory
self-incrimination. Neither of these concepts, relevant to federal
prosecutions, was invoked by the Court in
Rochin, so of
course the
Wolf case was not mentioned. While there is in
the case before us, as there was in
Rochin, an element of
unreasonable search and seizure, what is
Page 347 U. S. 145
decisive here, as in
Rochin, is additional aggravating
conduct which the Court finds repulsive.
Thus, the basis on which this case should be adjudicated is laid
down in
Rochin:
"Regard for the requirements of the Due Process Clause
'inescapably imposes upon this Court an exercise of judgment upon
the whole course of the proceedings [resulting in a conviction] in
order to ascertain whether they offend those canons of decency and
fairness which express the notions of justice of English-speaking
peoples even toward those charged with the most heinous
offenses.'"
342 U.S. at
342 U. S. 169,
quoting from
Malinski v. New York, 324 U.
S. 401 at
324 U. S.
416-417.
This brings us to the specific circumstances of this case. This
is a summary of the conduct of the police:
"(1) They secretly made a key to the Irvines' front door."
"(2) By boring a hole in the roof of the house and using the key
they had made to enter, they installed a secret microphone in the
Irvine house with a listening post in a neighboring garage where
officers listened in relays."
"(3) Using their key, they entered the house twice again to move
the microphone in order to cut out interference from a fluorescent
lamp. The first time, they moved in into Mr. and Mrs. Irvine's
bedroom, and later into their bedroom closet."
"(4) Using their key, they entered the house on the night of the
arrest and, in the course of the arrest, made a search for which
they had no warrant."
There was lacking here physical violence, even to the restricted
extent employed in
Rochin. We have here, however, a more
powerful and offensive control over the Irvines' life than a
single, limited physical trespass. Certainly
Page 347 U. S. 146
the conduct of the police here went far beyond a bare search and
seizure. The police devised means to hear every word that was said
in the Irvine household for more than a month. Those affirming the
conviction find that this conduct, in its entirety, is "almost
incredible if it were not admitted." Surely the Court does not
propose to announce a new absolute, namely, that even the most
reprehensible means for securing a conviction will not taint a
verdict so long as the body of the accused was not touched by State
officials. Considering the progress that scientific devices are
making in extracting evidence without violence or bodily harm,
satisfaction of due process would depend on the astuteness and
subtlety with which the police engage in offensive practices and
drastically invade privacy without authority of law. In words that
seem too prophetic of this case, it has been said that
"[d]iscovery and invention have made it possible for the
government, by means far more effective than stretching upon the
rack, to obtain disclosure in court of what is whispered in the
closet."
Brandeis, J., dissenting in
Olmstead v. United States,
277 U. S. 438,
277 U. S.
473.
The underlying reasoning of
Rochin rejected the notion
that States may secure a conviction by any form of skulduggery so
long as it does not involve physical violence. The cases in which
coercive or physical infringements of the dignity and privacy of
the individual were involved were not deemed
"sports in our constitutional law, but applications of a general
principle. They are only instances of the general requirement that
States, in their prosecutions, respect certain decencies of
civilized conduct. Due process of law, as a historic and generative
principle, precludes defining, and thereby confining, these
standards of conduct more precisely than to say that convictions
cannot be brought about by methods that offend 'a sense of
justice.'"
342 U.S. at
342 U. S.
173.
Page 347 U. S. 147
Since due process is not a mechanical yardstick, it does not
afford mechanical answers. In applying the Due Process Clause,
judicial judgment is involved in an empiric process in the sense
that results are not predetermined or mechanically ascertainable.
But that is a very different thing from conceiving the results as
ad hoc decisions in the opprobrious sense of
ad
hoc. Empiricism implies judgment upon variant situations by
the wisdom of experience.
Ad hocness in adjudication means
treating a particular case by itself and not in relation to the
meaning of a course of decisions and the guides they serve for the
future. There is all the difference in the world between disposing
of a case as though it were a discrete instance and recognizing it
as part of the process of judgment, taking its place in relation to
what went before and further cutting a channel for what is to
come.
The effort to imprison due process within tidy categories
misconceives its nature and is a futile endeavor to save the
judicial function from the pains of judicial judgment. It is
pertinent to recall how the Court dealt with this craving for
unattainable certainty in the
Rochin case:
"The vague contours of the Due Process Clause do not leave
judges at large. We may not draw on our merely personal and private
notions and disregard the limits that bind judges in their judicial
function. Even though the concept of due process of law is not
final and fixed, these limits are derived from considerations that
are fused in the whole nature of our judicial process.
See
Cardozo, The Nature of the Judicial Process; The Growth of the Law;
The Paradoxes of Legal Science. These are considerations deeply
rooted in reason and in the compelling traditions of the legal
profession. The Due Process Clause places upon this Court the duty
of exercising
Page 347 U. S. 148
a judgment, within the narrow confines of judicial power in
reviewing State convictions, upon interests of society pushing in
opposite directions."
342 U.S. at
342 U. S.
170-171.
Nor can we dispose of this case by satisfying ourselves that the
defendant's guilt was proven by trustworthy evidence and then
finding, or devising, other means whereby the police may be
discouraged from using illegal methods to acquire such
evidence.
This Court has rejected the notion that, because a conviction is
established on incontestable proof of guilt, it may stand no matter
how the proof was secured. Observance of due process has to do not
with questions of guilt or innocence, but the mode by which guilt
is ascertained. Mere errors of law in the conduct of State trials
afford no basis for relief under the Fourteenth Amendment, and a
wide swath of discretion must be left to the State Courts in such
matters. But when a conviction is secured by methods which offend
elementary standards of justice, the victim of such methods may
invoke the protection of the Fourteenth Amendment because that
Amendment guarantees him a trial fundamentally fair in the sense in
which that idea is incorporated in due process. If, as in
Rochin, "[o]n the facts of this case, the conviction of
the petitioner has been obtained by methods that offend the Due
Process Clause", 342 U.S. at
342 U. S. 174,
it is no answer to say that the offending policemen and prosecutors
who utilize outrageous methods should be punished for their
misconduct. [
Footnote 3/1]
Page 347 U. S. 149
Of course, it is a loss to the community when a conviction is
overturned because the indefensible means by which it was obtained
cannot be squared with the commands of due process. A new trial is
necessitated, and, by reason of the exclusion of evidence derived
from the unfair aspects of the prior prosecution, a guilty
defendant may escape. But the people can avoid such miscarriages of
justice. A sturdy, self-respecting democratic community should not
put up with lawless police and prosecutors.
"Our people may tolerate many mistakes of both intent and
performance, but, with unerring instinct, they know that when any
person is intentionally deprived of his constitutional rights,
those responsible have committed no ordinary offense. A crime of
this nature, if subtly encouraged by failure to condemn and punish,
certainly leads down the road to totalitarianism. [
Footnote 3/2]"
[
Footnote 3/1]
That the prosecution in this case, with the sanction of the
courts, flouted a legislatively declared philosophy against such
miscreant conduct and made it a policy merely on paper, does not
make the conduct any the less a disregard of due process.
Cf.
Rochin v. California, supra, 342 U.S. at
342 U. S.
167.
[
Footnote 3/2]
Statement by Director J. Edgar Hoover of the Federal Bureau of
Investigation in FBI Law Enforcement Bulletin, September 1952, p.
1.
MR. JUSTICE DOUGLAS, dissenting.
The search and seizure conducted in this case smack of the
police state, not the free America the Bill of Rights
envisaged.
The police and their agents first made a key to the home of a
suspect. Then they bored a hole in the roof of his house. Using the
key, they entered the house, installed a microphone, and attached
it to a wire which ran through the hole in the roof to a nearby
garage, where officers listened in relays. Twice more they used the
key to enter the house in order to adjust the microphone. First
they moved it into the bedroom where the suspect and his wife
slept. Next, they put the microphone into the bedroom closet. Then
they used the key to enter the
Page 347 U. S. 150
house to arrest the suspect. They had no search warrant, but
they ransacked the house. Moreover, they examined the suspect's
hands under an ultraviolet lamp to see if he had handled betting
slips which they had earlier impregnated with fluorescent
powder.
The evidence so obtained was used by California to send the
suspect, petitioner here, to prison.
What transpired here was as revolting as the abuses arising out
of the writs of assistance against which James Otis complained.
Otis, in his speech against the writs, [
Footnote 4/1] had this to say:
"Now one of the most essential branches of English liberty is
the freedom of one's house. A man's house is his castle; and whilst
he is quiet, he is as well guarded as a prince in his castle. This
writ, if it should be declared legal, would totally annihilate this
privilege. Custom-house officers may enter our houses when they
please; we are commanded to permit their entry. Their menial
servants may enter, may break locks, bars, and everything in their
way; and whether they break through malice or revenge no man, no
court, can inquire. Bare suspicion without oath is sufficient."
In those days, courts put their sanction behind the unlawful
invasion of privacy by issuing the general warrant that permitted
unlimited searches. There is no essential difference between that
and the action we take today. Today, we throw the weight of the
Government on the side of the lawless search by affirming a
conviction based on evidence obtained by it. Today we compound the
grievance against which Otis complained. Not only is privacy
invaded. The lawless invasion is officially approved as the means
of sending a man to prison.
Page 347 U. S. 151
I protest against this use of unconstitutional evidence. It is
no answer that the man is doubtless guilty. The Bill of Rights was
designed to protect every accused against practices of the police
which history showed were oppressive of liberty. The guarantee
against unreasonable searches and seizures contained in the Fourth
Amendment was one of those safeguards. In 1914, a unanimous Court
decided that officers who obtained evidence in violation of that
guarantee could not use it in prosecutions in the federal courts.
Weeks v. United States, 232 U. S. 383.
Lawless action of the federal police, it said, "should find no
sanction in the judgments of the courts. . . ."
Id. at
232 U. S.
392.
The departure from that principle which the Court made in 1949
in
Wolf v. Colorado, 338 U. S. 25, is
part of the deterioration which civil liberties have suffered in
recent years. In that case, the Court held that evidence obtained
in violation of the Fourth Amendment, though inadmissible in
federal prosecutions, could be used in prosecutions in the state
courts. Mr. Justice Murphy, dissenting, pointed out the peril of
that step,
id. at
338 U. S. 44:
"The conclusion is inescapable that but one remedy exists to
deter violations of the search and seizure clause. That is the rule
which excludes illegally obtained evidence. Only by exclusion can
we impress upon the zealous prosecutor that violation of the
Constitution will do him no good. And only when that point is
driven home can the prosecutor be expected to emphasize the
importance of observing constitutional demands in his instructions
to the police."
Exclusion of evidence is indeed the only effective sanction. If
the evidence can be used no matter how lawless the search, the
protection of the Fourth Amendment, to use the words of the Court
in the
Weeks case, "might as
Page 347 U. S. 152
well be stricken from the Constitution." 232 U.S. at
232 U. S.
393.
The suggestion that the remedy for lawless conduct by the local
police is through federal prosecution under the civil rights laws
relegates constitutional rights under the Fourth Amendment to a
lowly status. An already overburdened Department of Justice, busily
engaged in law enforcement, cannot be expected to devote its
energies to supervising local police activities and prosecuting
police officers, except in rare and occasional instances. [
Footnote 4/2] And the hostility which such
prosecutions have received here (
see Screws v. United
States, 325 U. S. 91,
especially pp.
325 U. S. 138
et seq.,) hardly encourages putting the federal prosecutor
on the track of state officials who take
unconstitutional
shortcuts in enforcing state laws. [
Footnote 4/3]
If unreasonable searches and seizures that violate the privacy
which the Fourth Amendment protects are to be outlawed, this is the
time and the occasion to do it. If police officers know that
evidence obtained by their unlawful acts cannot be used in the
courts, they will clean their own houses and put an end to this
kind of action. But as long as courts will receive the evidence,
the police will act lawlessly and the rights of the individual will
suffer. We should throw our weight on the side of the citizen and
against the lawless police. We should be alert to see that no
unconstitutional evidence is used to convict any person in
America.
Page 347 U. S. 153
[
Footnote 4/1]
Tudor, Life of James Otis (1823), pp. 66-67.
[
Footnote 4/2]
For an analysis of the civil rights suits instituted by the
Department of Justice,
see the
347
U.S. 128app|>Appendix to this opinion.
[
Footnote 4/3]
The current hostility towards federal actions -- both criminal
and civil -- under the civil rights laws is further evidenced by
United States v. Williams, 341 U. S.
70;
Tenney v. Brandhove, 341 U.
S. 367;
Collins v. Hardyman, 341 U.
S. 651;
Whittington v. Johnston, 201 F.2d 810,
certiorari denied, 346 U.S. 867;
Francis v.
Crafts, 203 F.2d 809,
certiorari denied, 346 U.S.
835.
|
347
U.S. 128app|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS
Mr. Justice Murphy, when Attorney General, was responsible for
the creation of the Civil Rights Section in the Department of
Justice. That was on February 3, 1939. In 1947, Mr. Justice Clark,
then Attorney General, reported that the Section had, in the eight
years of its existence, investigated nearly 850 complaints,
instituted prosecutions in 178 cases, and obtained the conviction
of more than 130 defendants. Clark, A Federal Prosecutor Looks at
the Civil Rights Statutes, 47 Col.L.Rev. 175, 181.
See
also Report of the President's Committee on Civil Rights: To Secure
These Rights (1947), pp. 114
et seq.
A more recent account of the work of the Civil Rights Section
will be found in Putzel, Federal Civil Rights Enforcement: A
Current Appraisal, 99 U. of Pa.L.Rev. 439 (1951). It is there
stated that, on the average, 20 civil rights cases are prosecuted a
year, acquittals and convictions being about equally divided.
Id., p. 449, n. 43. These figures are confirmed by the
Administrative Office of the United States Courts. Records
available in that office show the following number of civil rights
prosecutions filed in the district courts in the years since
1947:
--------------------------------------------------------------
Fiscal year 1947 1948 1949 1950 1951 1952 1953
--------------------------------------------------------------
Total cases 10 13 22 18 16 15 29
Total defendants 26 53 66 72 69 49 92
--------------------------------------------------------------
More detailed figures are available for the past three fiscal
years. The following table shows the number of defendants who
actually went to trial, the disposition of
Page 347 U. S. 154
their cases, and the sentences imposed on those who were
convicted:
---------------------------------------------------------
Fiscal year 1951 1952 1953
---------------------------------------------------------
Total defendants 22 50 54
---------------------------------------------------------
Not convicted: Total 11 20 45
Dismissed 4 2 18
Acquitted by court 1
Acquitted by jury 7 18 26
---------------------------------------------------------
Convicted: Total 11 30 9
Pleas of guilty or nolo contendere 3 21 1
Convicted by court 5
Convicted by jury 8 4 8
---------------------------------------------------------
Type of sentence: Imprisonment total 7 4 8
1-6 months 1
6 months to 1 year, 1 day 7 7
More than 1 year, 1 day 4
Type of sentence: Probation and
suspended sentence 2 20
Type of sentence: Fine only 2 6 1
---------------------------------------------------------
Average sentence of imprisonment
(months) 10.9 16.5 9.4
---------------------------------------------------------
Note: These figures from the Administrative Office
include all prosecutions filed and conducted under all of the
Sections of the Criminal Code which are usually called Civil Rights
Sections, that is, 18 U.S.C. §§ 241-244. Use of §§ 243 and 244,
however, has been very rare, so that most of the figures quoted
involve prosecutions under either § 241 or § 242. The figures set
out in the second table do not take into account such appellate
reversals as may have been entered, and they include only those
post-judgment motions in the district court which were disposed of
before the end of the fiscal year in question.
Page 347 U. S. 155
The Code provisions in question read as follows:
"§ 241.
Conspiracy against rights of citizens"
"If two or more persons conspire to injure, oppress, threaten,
or intimidate any citizen in the free exercise or enjoyment of any
right or privilege secured to him by the Constitution or laws of
the United States, or because of his having so exercised the same;
or"
"If two or more persons go in disguise on the highway, or on the
premises of another, with intent to prevent or hinder his free
exercise or enjoyment of any right or privilege so secured --"
"They shall be fined not more than $5,000 or imprisoned not more
than ten years, or both."
"§ 242.
Deprivation of rights under color of law"
"Whoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any inhabitant of any
State, Territory, or District to the deprivation of any rights,
privileges, or immunities secured or protected by the Constitution
or laws of the United States, or to different punishments, pains,
or penalties, on account of such inhabitant being an alien, or by
reason of his color, or race, than are prescribed for the
punishment of citizens, shall be fined not more than $1,000 or
imprisoned not more than one year, or both."
"§ 243.
Exclusion of jurors on account of race or
color"
"No citizen possessing all other qualifications which are or may
be prescribed by law shall be disqualified for service as grand or
petit juror in any court of the United States, or of any State on
account of race, color, or previous condition of servitude; and
whoever, being an officer or other person charged
Page 347 U. S. 156
with any duty in the selection or summoning of jurors, excludes
or fails to summon any citizen for such cause, shall be fined not
more than $5,000."
"§ 244.
Discrimination against person wearing uniform of
armed forces"
"Whoever, being a proprietor, manager, or employee of a theater
or other public place of entertainment or amusement in the District
of Columbia, or in any Territory, or Possession of the United
States, causes any person wearing the uniform of any of the armed
forces of the United States to be discriminated against because of
that uniform, shall be fined not more than $500."