Petitioner was arrested and held in jail awaiting trial on a
criminal charge for refusing to permit building inspectors to enter
and inspect his home without a search warrant, as required by §
806-30(a) of the Dayton, Ohio, Code of General Ordinances. On
review of habeas corpus proceedings in the lower state courts, the
Supreme Court of Ohio sustained the constitutionality of the
ordinance.
Held: the judgment is affirmed by an equally divided
Court.
Reported below: 168 Ohio St. 123, 151 N.E.2d 523.
PER CURIAM.
The judgment is affirmed by an equally divided Court.
MR. JUSTICE STEWART took no part in the consideration or
decision of this case.
MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK, and MR. JUSTICE DOUGLAS join.
The judgment of the Ohio Supreme Court in this case is being
affirmed
ex necessitate, by an equally divided
Page 364 U. S. 264
Court. Four of the Justices participating are of opinion that
the judgment should be affirmed, while we four think it should be
reversed. Accordingly, the judgment is without force as precedent.
The Antelope,
10 Wheat. 66,
23 U. S. 126;
Etting v. Bank of the United
States, 11 Wheat. 59,
24
U. S. 78. In such circumstances, as those leading cases
indicate, the usual practice is not to express any opinion, for
such an expression is unnecessary where nothing is settled. But in
this case, even before the cause was argued, four Justices made
public record of their votes to affirm the judgment, and their
basis therefor.
360 U. S. 360 U.S.
246,
360 U. S.
248-249. These four Justices stated that they were "of
the view that this case is controlled by, and should be affirmed on
the authority of,
Frank v. Maryland, 359 U.
S. 360." Their opinion further states that they deemed
"the decision in the Maryland case to be completely controlling
upon the Ohio decision." In a longer opinion, one of the four
Justices developed his views on the merits further. 360 U.S. at
360 U. S.
249-250. The usual practice of not expressing opinions
upon an equal division has the salutary force of preventing the
identification of the Justices holding the differing views as to
the issue, and this may well enable the next case presenting it to
be approached with less commitment. But the action we have
described prevents this from being the case here; and so the reason
for the usual practice is not applicable. Accordingly, since
argument has been had, and votes on the merits are now in order, we
express our opinion. [
Footnote
1]
This case involves Earl Taylor, who is in his sixties and has
been working at his trade of plumber for 40 years, and
Page 364 U. S. 265
the home at 130 Henry Street, in Dayton, Ohio, which he and his
wife bought and in which they have lived for over a decade. He
describes it as a little cottage, all in one floor, with a front
room, a middle room, two bedrooms, a dining room and a little
utility room, and a bathroom and a little kitchen at the back. What
was evidently Taylor's first involvement with the criminal law
occurred in this fashion. One day, three men who were housing
inspectors came to his door, and said they wanted to come into the
house and go through the house and inspect the inside of the house.
They had no credentials, only a sheet of yellow note paper, and
Taylor said to them, "You have nothing to show me you have got a
right to go through my house." The response was, "We don't have to
have, according to the law passed four years ago." [
Footnote 2]
Page 364 U. S. 266
Replied Taylor,
"That don't show me that you got anything in there that you want
for inspection, and, further, I don't have nothing in my house that
has to be inspected."
The man said, "Well, you know, according to this ordinance, that
we got a right to go through your house and inspect your house."
"No, I don't think you have, unless you got a search warrant,"
answered Taylor. This has been his position ever since, and it is
the issue that divides us.
The men went away, but later there was a second attempt to gain
access to Taylor's house, and a telephone call to the same end.
Taylor said,
"I don't see what right that you got coming into my house. Until
you show me in writing, or some kind of facts, that you got a right
to come into my house and inspect the house, I will not let you
in."
The third time the men came, there were two of them. One had
some sort of credential with a photograph on it. Neither had a
warrant of any kind. One said the housing inspector wanted to
inspect Taylor's house. Taylor said, "What do you have in there
that you want to inspect? I have nothing in my house for
inspection." He was told: "We have a right to come in your house,
go through your house, inspect the whole inside of your house."
Taylor's reaction to this was:
"You have nothing wrote down on paper. You don't have a thing to
show me you are going to come in there to inspect anything, and as
far as that goes, you aren't coming in unless you have a search
warrant to get in."
The men never came back with a search warrant, but as they left,
one said, "If you ain't going to let us in, we are entitled to get
in, and if you don't let us in, I am going to leave it up to the
Prosecutor." Whereupon Taylor said: "I don't care what you do. You
aren't coming in." Taylor later testified that then the man "walked
over and got in his car and that was the end of it."
Page 364 U. S. 267
But it was not. Taylor and his wife each received through the
mail a registered letter from the city prosecutor, notifying them
to appear at his office to answer a complaint against them. They
did not appear; whereupon the police came to Taylor's home, and
finally served him with a warrant -- a warrant to appear in court
to answer criminal charges brought against him for failing to admit
the inspectors to his home. He appeared in court and was held for
trial, and, not being then able to make bond of $1,000, he was
committed to jail to await trial on the charges, which could have
resulted in a fine of $200 and an incarceration of 30 days for each
day's recalcitrance. One Eaton, an attorney, filed a petition for
habeas corpus on Taylor's behalf in the State Common Pleas Court.
[
Footnote 3] The Common Pleas
Court found the ordinance unconstitutional and discharged Taylor
from custody, but the Court of Appeals reversed, 105 Ohio App. 376,
152 N.E.2d 776, and its judgment was upheld by the Ohio Supreme
Court. 168 Ohio St. 123, 151 N.E.2d 523. We noted probable
jurisdiction.
360 U. S. 360 U.S.
246.
The municipal ordinance in question provides numerous
requirements for dwellings, deemed by the city to be appropriate in
the interests of the public health, safety and comfort. Several of
the requirements apply to private dwelling houses such as the
Taylors'. None of these requirements is at all questioned here.
What is questioned
Page 364 U. S. 268
is the ordinance provision, Code of General Ordinances § 806-30,
authorizing the Housing Inspector to enter at any reasonable hour
any dwelling whatsoever, and commanding the owner or occupant to
give him free access at any reasonable hour for the purpose of his
inspection. It was armed with the naked authority of this
provision, and not with any warrant (the ordinance provides for
none) that the inspectors approached Taylor's door, even after he
had made clear to them his intent not to admit them on this basis.
Neither before a magistrate empowered to issue warrants nor in this
proceeding have the inspectors offered any justification for their
entry. They have not shown any probable cause or grounds to believe
that a proscribed condition existed within the cottage, or even
that they had suspicion or complaint thereof. They have not shown
that they desired to make the inspection in pursuance of a regular,
routinized spot check of individual homes, or in pursuance of a
planned blanket check of all the homes in a particular
neighborhood, or the like. [
Footnote 4] These might be said to be the usual reasons
which would impel inspectors to seek to gain admittance to a
private dwelling; but none of them is shown by the record to have
been present. Most significantly, on the initial recalcitrance of
Taylor, the inspectors were not required to, and did not, repair
before any independent magistrate to demonstrate to him their
reasons for wanting to gain access to Taylor's cottage, and to
obtain his warrant for their entry -- the authorization on which
Taylor was insisting. The judgment below is, on this record,
bottomed on the proposition that the inspectors have the
Page 364 U. S. 269
right to enter a private dwelling, and the householder can be
bound under criminal penalties to admit them, though there is
demonstration neither of reason to believe there exists an improper
condition within the dwelling nor of the existence of any plan of
inspection, apart from such a belief, which would include the
inspection of the dwelling in question. We think that affirmance of
this judgment would reduce the protection of the householder
"against unreasonable searches" to the vanishing point.
In support of the judgment below, much reliance at the bar has
been put on
Frank v. Maryland, 359 U.
S. 360. We would not be candid to say that, on its own
facts, we have become reconciled to that judgment. To us, it
remains "the dubious pronouncement of a gravely divided Court."
Cooper v. Aaron, 358 U. S. 1,
358 U. S. 24
(concurring opinion). "A single decision by a closely divided
court, unsupported by the confirmation of time, cannot check" the
course of constitutional adjudication here.
See Kovacs v.
Cooper, 336 U. S. 77,
336 U. S. 89
(concurring opinion). We continue to agree with Judge Prettyman in
District of Columbia v. Little, 85 U.S.App.D.C. 242, 246,
178 F.2d 13, 17,
affirmed on other grounds, 339 U. S. 339 U.S.
1, that:
"To say that a man suspected of crime has a right to protection
against search of his home without a warrant, but that a man not
suspected of crime has no such protection, is a fantastic
absurdity."
Nothing demonstrated in the
Frank case indicates
otherwise to us. But the present case goes much further than
Frank, and, as to the reasonableness of searches, it has
been stressed that factual differences may weigh heavily.
Go-Bart Importing Co. v. United States, 282 U.
S. 344,
282 U. S. 357.
The search in
Frank was for the nesting place of rats.
There were ample grounds on the part of the inspecting officer to
believe its existence in the house. There had been complaint of
rats in the neighborhood, and an external
Page 364 U. S. 270
inspection of the house in question revealed that it was "in an
extreme state of decay,'" and that behind it there was a pile
of "rodent feces mixed with straw and trash and debris to
approximately half a ton." See 359 U.S. at 359 U. S. 361.
The case was decided by the narrowest of divisions, and one member
of the majority found it necessary to express in a concurring
opinion that the sole purpose of the search was an attempt "to
locate the habitat of disease-carrying rodents known to be
somewhere in the immediate area." 359 U.S. at 359 U. S. 373
(concurring opinion). There was no case of a "systematic
area-by-area search" before the Court, and although certain remarks
were made as applicable to such a search, 359 U.S. at 359 U. S. 372,
their character as dicta is patent. Thus, even accepting the
judgment in Frank, of such expressions the classic
language of Justice Brandeis, dissenting in Jaybird Mining Co.
v. Weir, 271 U. S. 609,
271 U. S. 619,
can be said again:
"It is a peculiar virtue of our system of law that the process
of inclusion and exclusion, so often employed in developing a rule,
is not allowed to end with its enunciation, and that an expression
in an opinion yields later to the impact of facts unforeseen."
In this case, we pass beyond the situation in
Frank,
where the inspector was looking for a specific violation, and where
he had, and was able to demonstrate, considerable grounds to
believe it existed in Frank's house. Here, it would appear from
Taylor's testimony that, even without a warrant, if a specific
matter was cited to him by the inspector, he would have permitted
the inspection in that regard. On the contrary, Frank's denial of
access was described as based on "a rarely voiced denial of any
official justification for seeking to enter his home." 359 U.S. at
359 U. S. 366.
There then was a specific demand for inspection, met by a refusal
on the broadest of grounds. Here we have the most general of
demands,
Page 364 U. S. 271
supported by no particularized justification, either directed at
the conditions in Taylor's cottage or in terms of some over-all
systematic plan which would include it. This is met not by an
attitude of defiance, but by a request by the householder that a
specific authorization be furnished him. Not a search warrant, but
a criminal complaint is the upshot. We would grossly tone down the
protections afforded the householder by the Constitution were we to
put an authoritative sanction on the judgment that condemns his
refusal.
Much argument is made of the need of the authorities to perform
inspections on a "spot check" or on an area-by-area basis. The
judgment below cannot be said to present this problem, because
there was no evidence that this in fact was what was being done;
that the inspectors in fact were proceeding according to a
reasonable plan of one sort or another. For all that appears here,
the inspectors could have been acting in accordance with no
particular plan of spot checks or area-by-area searches which could
be justified as "reasonable," and which would give probable cause
for entry; [
Footnote 5] their
action could have been based on caprice or on personal or political
spite. It hardly contradicts experience to suggest that the
practical administration of local government in this country can be
infected with such motives. Building inspection ordinances can lend
themselves readily to such abuse. We do not at all say this to be
the case here, and Taylor has made no proof of it, to be sure; but
that simply points up the issue. The inspectors have not been
required to make any justification for their entry. The judgment
below upholds the charges as sufficient, based on a demand for
entry without any such justification.
But if we were to assume that the inspectors were proceeding
according to a plan, and even if evidence of the
Page 364 U. S. 272
plan were put in at the trial, we think that the result should
be the same. The time to make such justification is not in the
criminal proceeding, after the householder has acted at his peril
in denying access. The time to make it is in advance of
prosecution, and the place is before a magistrate empowered to
issue warrants, which will put the seal of legitimacy -- the seal
the Constitution specifically provides for -- on the demand of the
inspector, if indeed it is a reasonable one. Such a warrant need
not be sought except where the householder does not consent. This
is precisely the procedure followed by England in this particular
area,
see Public Health Act, 1936, 26 Geo. 5, & 1 Edw.
8, c. 49, § 287(2); [
Footnote
6] and no complaint is heard that this stultifies enforcement
there of the regulation or the public health and safety. Certainly
with this procedure available -- the procedure of antecedent
justification before a magistrate that is central to the Fourth
Amendment,
see McDonald v. United States, 335 U.
S. 451,
335 U. S.
455-456 -- there is no need to be satisfied with lesser
standards in this area.
Cf. Dean Milk Co. v. Madison,
340 U. S. 349. The
public interest in the cleanliness and adequacy of the dwellings of
the people is great. So too is the public interest that the tools
of counterfeiting and
Page 364 U. S. 273
the paraphernalia of the illicit narcotics traffic not remain
active. On an adequate and appropriate showing in particular cases,
the privacy of the home must bow before these interests of the
public. But none of these interests provides an open sesame to
those who enforce them. The Fourth Amendment's procedure
establishes the way in which these general public interests are to
be brought into specific focus to require the individual
householder to open his door.
It has been suggested that, if the Fourth Amendment's
requirement of a search warrant is acknowledged to be applicable
here, the result will be a general watering down of the standards
for the issuance of search warrants. For it is said that, since it
is agreed that a warrant for a health and safety inspection can be
made on a showing quite different in kind from that which would,
for example, justify a search for narcotics, magistrates will
become lax generally in issuing warrants. The suggested preventive
for this laxity is a drastic one: dispense with warrants for these
inspections. We cannot believe that here it is necessary thus to
burn down the house to roast the pig. To be sure, the showing that
will justify a housing inspection to check compliance with health
and safety regulations is different from that which would justify a
search for narcotics. But we should not assume that magistrates
will become so obtuse as not to bear this in mind. Search warrants
to look for counterfeiting equipment, for example, are not issued
on a showing of probable cause to believe the existence of an
untaxed still. To each specific warrant, an appropriate specific
showing is necessary. This can scarcely be thought to tax the
capacities of the magistrate. And, of course, where the rule
prevails that evidence obtained in violation of the constitutional
guarantee is not admissible, there will be judicial review of
the
Page 364 U. S. 274
magistrate's action if the fruits of a search are tendered in
evidence. [
Footnote 7]
Apart from the very significant factual distinctions presented
by this case from the
Frank case, there is another reason
why we would reverse the judgment here. It has now become clear
that the
Frank decision may have turned in substantial
part on the positing of a distinction between the affirmative
guaranty of privacy against official incursion raised by the Fourth
Amendment against federal action and that raised by the Due Process
Clause of the Fourteenth against state action. The concurring
opinion of one of the majority in that sharply divided decision
indicates some concern in that respect. 359 U.S. at
359 U. S. 373.
After the greatest consideration, this Court, in
Wolf v.
Colorado, 338 U. S. 25,
338 U. S. 27-28,
declared:
"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 Clause."
It is now clear that part of the majority of the Court in the
Frank case does not subscribe to the clear import of that
statement.
Elkins v. United States, ante, p.
364 U. S. 206,
364 U. S.
237-240 (dissenting opinion). But the
Wolf
statement continues to be the ruling doctrine in this Court.
Elkins v. United States, post, p.
364 U. S. 206. The
guarantees are of the same dimension, matters of enforcement, such
as the exclusionary rule, aside.
The classic debate on the import of the Fourteenth Amendment's
Due Process Clause as to the applicability of the Bill of Rights to
the States, we submit, does not even involve the theory that the
matter is one for the judges to solve on an
ad hoc basis,
according to their over-all reaction to particular cases. Some of
us have expressed
Page 364 U. S. 275
the conviction that the preferable view of the Fourteenth
Amendment is that it makes the guarantees of the Bill of Rights
generally enforceable against the States.
See Adamson v.
California, 332 U. S. 46,
332 U. S. 68
(dissenting opinion). But to them, as well as to us, who have
neither accepted nor rejected that view, it is clear that the
celebrated passage of Justice Cardozo's opinion in
Palko v.
Connecticut, 302 U. S. 319,
302 U. S.
323-325, can have no common ground with the view of the
Wolf case that a minority of the Court now expounds.
And see Adamson v. California, supra, at
332 U. S. 85-86,
332 U. S. 89
(dissenting opinion). For the
Palko opinion refers to "a
process of absorption," 302 U.S. at
302 U. S. 326,
of specific Bill of Rights guarantees in the Fourteenth Amendment's
standard. [
Footnote 8] It is
not a license to the judiciary to administer a watered-down,
subjective version of the individual guarantees of the Bill of
Rights when state cases come before us. To be sure, the contrary
view has been urged, occasionally with success; the right to
counsel was put on an
ad hoc basis,
Betts v.
Brady, 316 U. S. 455,
despite what seems the clear implication to the contrary in
Palko, at
302 U. S. 324;
and recently the surprising suggestion has even been made (never by
the Court) that the freedom of speech and of the press may be
secured by the Fourteenth Amendment with less vigor than it is
secured by the First.
See Beauharnais v. Illinois,
343 U. S. 250,
343 U. S. 288
(dissenting opinion);
Roth v. United
States, 354
Page 364 U. S. 276
U.S. 476,
354 U. S.
505-506 (separate opinion);
Smith v.
California, 361 U. S. 147,
361 U. S. 169
(separate opinion). [
Footnote
9]
In
Elkins today, we have rejected such a view of the
affirmative guarantees of the Fourth Amendment. The opinion of the
Court in
Frank is very likely a product of such a rejected
approach. For that reason, even if it were on all fours with the
present case, it should not be followed, and the judgment below
should be reversed.
[
Footnote 1]
Expressions of views, despite equal divisions, have been made
before where there was a question whether one fact situation was to
be distinguished from a related one on which a majority of the
Court had rendered an opinion.
Raley v. Ohio, 360 U.
S. 423,
360 U. S.
440-442,
360 U. S.
442-445. The question whether this case is to be
distinguished from
Frank presents an analogy to this.
[
Footnote 2]
The reference is apparently to the ordinance around which this
case turns. Section 806-30(a) of the Dayton, Ohio, Code of General
Ordinances provides:
"The Housing Inspector is hereby authorized and directed to make
inspections to determine the condition of dwellings, dwelling
units, rooming houses, rooming units and premises located within
the City of Dayton in order that he may perform his duty of
safeguarding the health and safety of the occupants of dwellings
and of the general public. For the purpose of making such
inspections and upon showing appropriate identification, the
Housing Inspector is hereby authorized to enter, examine and survey
at any reasonable hour all dwellings, dwelling units, rooming
houses, rooming units, and premises. The owner or occupant of every
dwelling, dwelling unit, rooming house, and rooming unit or the
person in charge thereof shall give the Housing Inspector free
access to such dwelling, dwelling unit, rooming house or rooming
unit and its premises at any reasonable hour for the purpose of
such inspection, examination and survey."
This command is backed by the penalty that
"Any person who shall violate any provision of this ordinance
shall, upon conviction, be punished by a fine of not less than
twenty dollars (20.00) nor more than two hundred dollars ($200) or
by imprisonment of not less than two (2) days nor more than thirty
(30) days, or both, and each day of failure to comply with any such
provision shall constitute a separate violation."
§ 806-83.
[
Footnote 3]
Evidently habeas corpus lies in Ohio to test the
constitutionality of the ordinance under which one is being held
through charges pending in a court of inferior jurisdiction, as all
the state courts proceeded to pass on the merits of the claims of
the relator Eaton, appellant here, that the ordinance under which
the charges were brought infringed Taylor's constitutional rights.
Accordingly we may now review that determination on the merits, the
habeas corpus proceeding, independent of the criminal prosecution
itself, having proceeded to a final judgment.
New York ex rel.
Bryant v. Zimmerman, 278 U. S. 63,
278 U. S.
70.
[
Footnote 4]
Those desiring to make the inspection did not so testify, and
such a planned blanket check, or its nature, is hardly inferable
from Taylor's statement that "they had been going up and down
there, door-to-door, looking through everybody's houses"; his
statement being the only thing resembling evidence on the
point.
[
Footnote 5]
See Frank v. Maryland, supra, at
359 U. S. 383
(dissenting opinion).
[
Footnote 6]
The procedure cited is that prescribed by statute in the case of
health inspections under the Public Health Act. There are other
statutes providing for other inspections, an English commentator
points out, which do not contain this safeguard.
See
Waters, Rights of Entry in Administrative Officers, 27 U. of
Chi.L.Rev. 79, 85. Accordingly, "the private occupier is faced with
a bewildering number of persons claiming a variety of rights."
Id. at 83. The author is in favor of the Public Health Act
procedure, and regrets that "the consistent application to good
works is yet lacking."
"The object should be the creation of warrant provisions in a
statutory code of powers of entry, guaranteeing to the individual
thereby the impartial, if rarely invoked, judgment by magistrates
of the fairness and legality of any attempted entry."
Id. at 93.
[
Footnote 7]
See Weeks v. United States, 232 U.
S. 383.
[
Footnote 8]
"We reach a different plane of social and moral values when we
pass to the privileges and immunities that have been taken over
from the earlier articles of the Federal Bill of Rights and brought
within the Fourteenth Amendment by a process of absorption. These
in their origin were effective against the federal government
alone. If the Fourteenth Amendment has absorbed them, the process
of absorption has had its source in the belief that neither liberty
nor justice would exist if they were sacrificed. . . . This is
true, for illustration, of freedom of thought, and speech. Of that
freedom one may say that it is the matrix, the indispensable
condition, of nearly every other form of freedom. . . ."
302 U.S. at
302 U. S.
326-327.
[
Footnote 9]
Contrast the statement in
Palko, 302 U.S. at
302 U. S. 324.
For the latest of many reiterations of the settled doctrine that
the First Amendment's guarantees obtain against the States,
see
Smith v. California, 361 U. S. 147,
361 U. S.
149-150;
Bates v. Little Rock, 361 U.
S. 516,
361 U. S.
522-523.
See Staub v. Baxley, 355 U.
S. 313,
355 U. S. 321.
For a collection of many of the cases to this effect,
see
Speiser v. Randall, 357 U. S. 513,
357 U. S. 530
(concurring opinion).