Petitioner Von Cleef was arrested on the third floor of a
16-room house in which she lived. Police, without a search warrant,
then searched the entire house and seized several thousand
articles, many of which were introduced at trial. The New Jersey
courts concluded that the search and seizures were constitutionally
permissible as incident to a valid arrest.
Held: It is not necessary to decide whether
Chimel
v. California, ante, p.
395 U. S. 752,
applies retroactively, as the scope of the search and seizures here
was "beyond the sanction of any" previous decision,
Kremen v.
United States, 353 U. S. 346,
353 U. S.
347.
Certiorari granted; 102 N.J.Super. 102,
245 A.2d 495, reversed and remanded.
PER CURIAM.
The petitioners were convicted in a New Jersey trial court of
conspiring to maintain a building for purposes of lewdness and to
commit acts of lewdness, N.J.Rev.Stat. §§ 2A:91, 2A:133-2,
2A:115-1; permitting a building to be used for purposes of
lewdness, N.J.Rev.Stat. § 2A:133-2(b), and possessing with intent
to utter obscene publications, N.J.Rev.Stat. § 2A:115-2. Their
convictions were affirmed by the Superior Court, Appellate
Division, 102 N.J.Super. 102,
245 A.2d 495, and the Supreme Court of New Jersey denied
review, 52 N.J. 499, 246 A.2d 456. The petitioners make several
arguments, but their principal contention is that evidence
introduced at their trial was secured in violation of the Fourth
and Fourteenth Amendments.
Page 395 U. S. 815
Petitioner Von Cleef was arrested on the third floor of a
16-room house in which she and petitioner Beard lived. Although no
search warrant had been issued, several policemen proceeded to
search the entire house for a period of about three hours. They
eventually seized several thousand articles, including books,
magazines, catalogues, mailing lists, private correspondence (both
opened and unopened), photographs, drawings, and film. The
petitioners' motion to suppress was denied, and "a considerable
number" of the items seized were introduced into evidence by the
prosecution and "commented upon by several witnesses during the
trial." 102 N.J.Super. at 109, 245 A.2d at 499.
The petitioners attack the New Jersey courts' conclusion that
the search and seizures described above were constitutionally
permissible as being incident to a valid arrest. This challenge
would unquestionably be well founded if today's decision in
Chimel v. California, ante, p.
395 U. S. 752,
were given retroactive application. But we need not decide here
whether
Chimel should be applied retroactively. For even
under the constitutional standards prevailing before
Chimel,
see United States v. Rabinowitz, 339 U. S.
56;
Harris v. United States, 331 U.
S. 145, the search and seizures involved here were
constitutionally invalid.
New Jersey relies primarily on
United States v. Rabinowitz,
supra, in which this Court upheld the search of a one-room
business office and the seizure of 573 stamps with forged
overprints. But the Court's opinion in
Rabinowitz
specifically referred to the factors that were thought to make the
search in that case reasonable:
"(1) the search and seizure were incident to a valid arrest; (2)
the place of the search was a business room to which the public,
including the officers, was invited; (3) the room was small and
under the immediate and complete control of respondent;
Page 395 U. S. 816
(4) the search did not extend beyond the room used for unlawful
purposes; (5) the possession of the forged and altered stamps was a
crime, just as it is a crime to possess burglars' tools, lottery
tickets or counterfeit money."
339 U.S. at
339 U. S. 64.
Although the arrest of petitioner Von Cleef may, for our purposes,
be assumed to have been lawful (the petitioners argue that it was
not), the factual circumstances here are otherwise quite different
from those of
Rabinowitz. Even the facts of
Harris v.
United States, supra -- in which the search of a four-room
apartment and the seizure of an envelope containing altered
Selective Service documents were sustained on the ground that they
were contemporaneous with a lawful arrest -- are a far cry from
those of this case. While
Rabinowitz made the principles
governing searches accompanying arrests unfortunately hazy,
see
Chimel v. California, supra at
395 U. S. 766,
we have no hesitation in concluding that the action of the police
here in combing a three-story, 16-room house from top to bottom and
carting away several thousand papers, publications, and other items
cannot, under any view of the Fourth Amendment, be justified as
"incident to arrest." Like the search and "mass seizure" in
Kremen v. United States, 353 U. S. 346,
see Abel v. United States, 362 U.
S. 217,
362 U. S. 239,
such action is simply "beyond the sanction of any of our cases."
353 U.S. at
353 U. S.
347.
Accordingly, the petition for a writ of certiorari is granted,
the judgment below is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE BLACK and MR. JUSTICE WHITE concur in granting
certiorari, but dissent from reversal of the judgment and remand of
the case without a hearing.
Page 395 U. S. 817
MR. JUSTICE HARLAN, concurring in the result.
Unfortunately, I remain unconvinced that the search in this case
may be properly distinguished from the search tolerated by the
Court in
Harris v. United States, 331 U.
S. 145 (1947). Nor do I believe that our decision in
Kremen v. United States, 353 U. S. 346
(1957), proscribes this search.
Kremen simply prohibits
the police from seizing the entire contents of a building
indiscriminately, without considering whether the property they
take is relevant to the crime under investigation; it does not bar
the removal of all property that may reasonably be considered
evidence of crime. The Appellate Division of the New Jersey
Superior Court properly found that the police in the case before us
did not engage in the practice condemned in Kremen:
"[T]he search was extensive, but, under the circumstances, it
was reasonable . . .
the items searched for and seized related
to the criminal operation for which the arrest had been
made."
(Emphasis supplied.) Surely, there is no reason to condemn a
search as resulting in a "mass seizure" simply because it uncovers
abundant evidence of wrongdoing. And yet, that is what the Court
does today in relying on
Kremen to decide this case.
Consequently, I am obliged to reach the question whether the
stricter Fourth Amendment standards announced today in
Chimel
v. California, ante, p.
395 U. S. 752,
govern this case; for, in my view, it is only if
Chimel is
applicable that we may legitimately reverse the judgment of the New
Jersey courts. Since I have reached the conclusion that all cases
still subject to direct review by this Court should be governed by
any "new" rule of constitutional law announced in our decisions,
see my dissent in
Desist v. United States,
394 U. S. 244,
394 U. S. 256
(1969), I join in the Court's judgment.