1. Knowing that respondent had sold four forged postage stamps
to a government agent and probably possessed many more in his
one-room place of business which was open to the public, officers
obtained a warrant for his arrest; but they did not obtain a search
warrant. They arrested him in his place of business, searched the
desk, safe, and file cabinets, and seized 573 forged stamps. He was
indicted for possessing and concealing the stamps so seized and for
selling the four that had been purchased. The seized stamps were
admitted in evidence over his objection, and he was convicted on
both counts.
Held: The search and seizure were incident to a lawful
arrest, they were not unreasonable, and they did not violate the
Fourth Amendment. Pp.
339 U. S.
57-66.
(a) What is a reasonable search is not to be determined by any
fixed formula. The recurring questions of the reasonableness of
searches must find resolution in the facts and circumstances of
each case. P.
339 U. S.
63.
(b) Here, the search and seizure were reasonable because: (1)
they were incident to a valid arrest; (2) the place of the search
was a business room to which the public, including the officers,
was invited; (3) the room was small, and under the immediate and
complete control of respondent; (4) the search did not extend
beyond the room used for unlawful purposes; and (5) the possession
of the forged stamps was a crime. Pp.
339 U. S.
63-64.
2.
Trupiano v. United States, 334 U.
S. 699, overruled to the extent that it requires a
search warrant solely upon the basis of the practicability of
procuring it, rather than upon the reasonableness of the search
after a lawful arrest. Pp.
339 U. S. 65-66.
176 F.2d 732, reversed.
Respondent was convicted of violating 18 U.S.C. (1946 ed.) §§
265, 268. The Court of Appeals reversed. 176 F.2d 732. This Court
granted certiorari. 338 U.S. 884.
Reversed, p.
339 U. S.
66.
Page 339 U. S. 57
MR. JUSTICE MINTON delivered the opinion of the Court.
Respondent was convicted of selling and of possessing and
concealing forged and altered obligations of the United States with
intent to defraud. The question presented here is the
reasonableness of a search without a search warrant of a place of
business consisting of a one-room office, incident to a valid
arrest.
On February 1, 1943, a printer who possessed plates for forging
"overprints" on canceled stamps was taken into custody. He
disclosed that respondent, a dealer in stamps, was one of the
customers to whom he had delivered large numbers of stamps bearing
forged overprints. [
Footnote 1]
On Saturday, February 6, 1943, with this information concerning
respondent and his activities in the hands of Government officers,
a postal employee was sent to respondent's place of business to buy
stamps bearing overprints. He bought four stamps. On Monday,
February 8, the stamps were sent to an expert to determine whether
the overprints were genuine. On February 9, the report was received
showing the overprints to be forgeries, having been placed upon the
stamps after cancellation, and not before, as was the Government's
practice. On February 11, a further statement was obtained
Page 339 U. S. 58
from the printer who had made the overprints. On February 16,
1943, a warrant for the arrest of respondent was obtained.
In 1941, respondent had been convicted and sentenced to three
months' imprisonment on a plea of guilty to a two-count indictment
charging the alteration of obligations of the United States, that
is, of overprinting Government postage stamps, and the possession
of a plate from which a similitude of a United States obligation
had been printed. Thus, when the warrant for arrest was obtained,
the officers had reliable information that respondent was an old
offender, that he had sold four forged and altered stamps to an
agent of the Government, and that he probably possessed several
thousand altered stamps bearing forged overprints. While the
warrant of arrest was not put in evidence, it contained, as a
Government witness testified on cross-examination, authority to
arrest for more than the sale of the four stamps; it covered all
the Government officers' information. [
Footnote 2]
Armed with this valid warrant for arrest, the Government
officers, accompanied by two stamp experts, went to respondent's
place of business, a one-room office open to the public. The
officers thereupon arrested the respondent,
Page 339 U. S. 59
and, over his objection, searched the desk, safe, and file
cabinets in the office for about an hour and a half. They found and
seized 573 stamps on which it was later determined that overprints
had been forged, along with some other stamps which were
subsequently returned to respondent.
Respondent was indicted on two counts. He was charged in count
one with selling four forged and altered stamps, knowing they were
forged and altered and with the intent that they be passed as
genuine. [
Footnote 3] The
second count charged that he did keep in his possession and
conceal, with intent to defraud, the 573 forged and altered stamps.
[
Footnote 4]
Respondent made timely motions for suppression and to strike the
evidence pertaining to the 573 stamps, all of which were eventually
denied. Respondent was convicted on both counts after trial before
a jury in which he offered no evidence. Relying on
Trupiano v.
United States, 334 U. S. 699, the
Court of Appeals, one judge dissenting, reversed on the ground
that, since the officers had had time in which to procure a search
warrant and had failed to do so, the search was illegal, and the
evidence therefore should have been excluded. 176 F.2d 732. We
granted certiorari to determine the validity of the search because
of the question's importance in the administration of the law of
search and seizure. 338 U.S. 884.
Were the 573 stamps, the fruits of this search, admissible in
evidence? If legally obtained, these stamps were competent evidence
to show intent under the first count of the indictment, and they
were the very things the possession of which was the crime charged
in the second count.
Page 339 U. S. 60
The Fourth Amendment provides:
"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."
It is unreasonable searches that are prohibited by the Fourth
Amendment.
Carroll v. United States, 267 U.
S. 132,
267 U. S. 147.
It was recognized by the framers of the Constitution that there
were reasonable searches for which no warrant was required. The
right of the "people to be secure in their persons" was certainly
of as much concern to the framers of the Constitution as the
property of the person. Yet no one questions the right, without a
search warrant, to search the person after a valid arrest. The
right to search the person incident to arrest always has been
recognized in this country and in England.
Weeks v. United
States, 232 U. S. 383,
232 U. S. 392.
Where one had been placed in the custody of the law by valid action
of officers, it was not unreasonable to search him.
Of course, a search without warrant incident to an arrest is
dependent initially on a valid arrest. Here, the officers had a
warrant for respondent's arrest which was, as far as can be
ascertained, broad enough to cover the crime of possession charged
in the second count, and consequently respondent was properly
arrested. Even if the warrant of arrest were not sufficient to
authorize the arrest for possession of the stamps, the arrest
therefor was valid because the officers had probable cause to
believe that a felony was being committed in their very presence.
Carroll v. United States, 267 U.
S. 132,
267 U. S.
156-157.
The arrest was therefore valid in any event, and respondent's
person could be lawfully searched. Could the
Page 339 U. S. 61
officers search his desk, safe and file cabinets, all within
plain sight of the parties, and all located under respondent's
immediate control in his one-room office open to the public?
Decisions of this Court have often recognized that there is a
permissible area of search beyond the person proper. Thus, in
Agnello v. United States, 269 U. S.
20,
269 U. S. 30,
this Court stated:
"The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it
was committed, as well as weapons and other things to effect an
escape from custody, is not to be doubted."
The right
"to search the place where the arrest is made in order to find
and seize things connected with the crime as its fruits or as the
means by which it was committed"
seems to have stemmed not only from the acknowledged authority
to search the person, but also from the longstanding practice of
searching for other proofs of guilt within the control of the
accused found upon arrest.
Weeks v. United States,
232 U. S. 383,
232 U. S. 392.
It became accepted that the premises where the arrest was made,
which premises were under the control of the person arrested and
where the crime was being committed, were subject to search without
a search warrant. Such a search was not "unreasonable."
Agnello
v. United States, 269 U. S. 20,
269 U. S. 30;
Carroll v. United States, 267 U.
S. 132,
267 U. S. 158;
Boyd v. United States, 116 U. S. 616,
116 U. S.
623-624.
In
Marron v. United States, 275 U.
S. 192, the officers had a warrant to search for liquor,
but the warrant did not describe a certain ledger and invoices
pertaining to the operation of the business. The latter were seized
during the search of the place of business. but were not
Page 339 U. S. 62
returned on the search warrant, as they were not described
therein. The offense of maintaining a nuisance under the National
Prohibition Act was being committed in the room by the arrested
bartender in the officers' presence. The search warrant was held
not to cover the articles seized, but the arrest for the offense
being committed in the presence of the officers was held to
authorize the search for and seizure of the ledger and invoices,
this Court saying:
"The officers were authorized to arrest for crime being
committed in their presence, and they lawfully arrested Birdsall.
They had a right without a warrant contemporaneously to search the
place in order to find and seize the things used to carry on the
criminal enterprise. . . . The closet in which liquor and the
ledger were found was used as a part of the saloon. And, if the
ledger was not as essential to the maintenance of the establishment
as were bottles, liquors and glasses, it was nonetheless a part of
the outfit or equipment actually used to commit the offense. And,
while it was not on Birdsall's person at the time of his arrest, it
was in his immediate possession and control. The authority of
officers to search and seize the things by which the nuisance was
being maintained extended to all parts of the premises used for the
unlawful purpose."
Marron v. United States, 275 U.
S. 192,
275 U. S.
198-199.
We do not understand the
Marron case to have been
drained of contemporary vitality by
Go-Bart Importing Co. v.
United States, 282 U. S. 344, and
United States v. Lefkowitz, 285 U.
S. 452. Those cases condemned general exploratory
searches, which cannot be undertaken by officers with or without a
warrant. In the instant case, the search was not general or
exploratory for whatever might be turned up. Specificity was the
mark of the search and seizure here. There was probable cause to
believe
Page 339 U. S. 63
that respondent was conducting his business illegally. The
search was for stamps overprinted illegally, which were thought
upon the most reliable information to be in the possession of and
concealed by respondent in the very room where he was arrested,
over which room he had immediate control, and in which he had been
selling such stamps unlawfully.
Harris v. United States,
331 U. S. 145,
which has not been overruled, is ample authority for the more
limited search here considered. In all the years of our Nation's
existence, with special attention to the Prohibition Era, it seems
never to have been questioned seriously that a limited search such
as here conducted as incident to a lawful arrest was a reasonable
search, and therefore valid. [
Footnote 5] It has been considered in the same pattern as
search of the person after lawful arrest.
What is a reasonable search is not to be determined by any fixed
formula. The Constitution does not define what are "unreasonable"
searches, and, regrettably, in our discipline, we have no ready
litmus paper test. The recurring questions of the reasonableness of
searches must find resolution in the facts and circumstances of
each case.
Go-Bart Importing Co. v. United States,
282 U. S. 344,
282 U. S. 357.
Reasonableness is, in the first instance, for the District Court to
determine. We think the District Court's conclusion
Page 339 U. S. 64
that here the search and seizure were reasonable should be
sustained because: (1) the search and seizure were incident to a
valid arrest; (2) the place of the search was a business room to
which the public, including the officers, was invited; (3) the room
was small, and under the immediate and complete control of
respondent; (4) the search did not extend beyond the room used for
unlawful purposes; (5) the possession of the forged and altered
stamps was a crime, just as it is a crime to possess burglars'
tools, lottery tickets or counterfeit money. [
Footnote 6]
Assuming that the officers had time to procure a search warrant,
were they bound to do so? We think not, because the search was
otherwise reasonable, as previously concluded. In a recent opinion,
Trupiano v. United States, 334 U.
S. 699, this Court first enunciated the requirement that
search warrants must be procured when "practicable" in a case of
search incident to arrest. On the occasion of the previous
suggestion of such a test,
Taylor v. United States,
286 U. S. 1, the
Court had been scrupulous to restrict the opinion to the familiar
situation there presented. Prohibition agents, having received
complaints for about a year, went at 2:30 a.m. to a garage adjacent
to a house, flashed a light through a small opening, and then broke
in and seized liquor. The Court emphasized that "No one was within
the place, and there was no reason to think otherwise."
Id., at
286 U. S. 5. Lest
the holding that such a search of an unoccupied building
Page 339 U. S. 65
was unreasonable be thought to have broader significance, the
Court carefully stated in conclusion:
"This record does not make it necessary for us to discuss the
rule in respect of searches in connection with an arrest. No
offender was in the garage; the action of the agents had no
immediate connection with an arrest. The purpose was to secure
evidence to support some future arrest."
Id. at
286 U. S. 6.
A rule of thumb requiring that a search warrant always be
procured whenever practicable may be appealing from the vantage
point of easy administration. But we cannot agree that this
requirement should be crystallized into a
sine qua non to
the reasonableness of a search. It is fallacious to judge events
retrospectively, and thus to determine, considering the time
element alone, that there was time to procure a search warrant.
Whether there was time may well be dependent upon considerations
other than the ticking off of minutes or hours. The judgment of the
officers as to when to close the trap on a criminal committing a
crime in their presence or who they have reasonable cause to
believe is committing a felony is not determined solely upon
whether there was time to procure a search warrant. Some
flexibility will be accorded law officers engaged in daily battle
with criminals for whose restraint criminal laws are essential.
It is appropriate to note that the Constitution does not say
that the right of the people to be secure in their persons should
not be violated without a search warrant if it is practicable for
the officers to procure one. The mandate of the Fourth Amendment is
that the people shall be secure against
unreasonable
searches. It is not disputed that there may be reasonable searches,
incident to an arrest, without a search warrant. Upon acceptance of
this established rule that some authority to search follows from
lawfully taking the person into custody, it becomes apparent that
such searches turn upon the
Page 339 U. S. 66
reasonableness under all the circumstances, and not upon the
practicability of procuring a search warrant, for the warrant is
not required. To the extent that
Trupiano v. United
States, 334 U. S. 699,
requires a search warrant solely upon the basis of the
practicability of procuring it, rather than upon the reasonableness
of the search after a lawful arrest, that case is overruled. The
relevant test is not whether it is reasonable to procure a search
warrant, but whether the search was reasonable. That criterion, in
turn, depends upon the facts and circumstances -- the total
atmosphere of the case. It is a sufficient precaution that law
officers must justify their conduct before courts which have always
been, and must be, jealous of the individual's right of privacy
within the broad sweep of the Fourth Amendment.
We do not treat additional questions raised by respondent in his
brief to support the judgment of the Court of Appeals. We consider
it appropriate to dispose of these issues on the basis of the
excellent discussion below.
The motion to suppress the evidence was properly denied by the
District Court. The judgment of the Court of Appeals is
reversed.
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
The stamps involved were genuine postage stamps. At certain
times, the Government has printed the name of a particular state or
possession on stamps prior to post office sale. Canceled stamps
bearing these overprints have an unusual value for stamp
collectors.
[
Footnote 2]
"Q. Now, when you went to Mr. Rabinowitz' place of business, all
you had with you was a warrant to arrest him in connection with the
alleged sale of those four stamps; is that correct? A. And all
information contained in the arrest warrant, yes."
"Q. I didn't hear the last part of your answer."
"A. In our questions a few minutes back, I stated that the four
stamps were specifically mentioned in the application for the
warrant for arrest, but that there was other information in my
possession that was included in that warrant for arrest."
"Q. Well, wasn't the warrant of arrest issued solely on the
charge that Mr. Rabinowitz had sold four stamps containing false or
altered overprints? Wasn't that what the warrant of arrest was
issued for?"
"A. Primarily, yes, but not completely."
[
Footnote 3]
18 U.S.C. (1946 ed.) § 268.
[
Footnote 4]
18 U.S.C. (1946 ed.) § 265. All of these stamps are defined by
statute as obligations of the United States. 18 U.S.C. (1946 ed.) §
261.
[
Footnote 5]
When construing state safeguards similar to the Fourth Amendment
of the Federal Constitution, state courts have shown little
hesitancy in holding that, incident to a lawful arrest upon
premises within the control of the arrested person, a search of the
premises at least to the extent conducted in the instant case is
not unreasonable.
See, e.g., Argetakis v. State, 24 Ariz.
599, 212 P. 372;
Italiano v. State, 141 Fla. 249, 193 So.
48,
certiorari denied, 310 U.S. 640;
State v.
Conner, 59 Idaho 695, 89 P.2d 197;
State v. Carenza,
357 Mo. 1172, 212 S.W.2d 743;
State ex rel. Wong You v.
District Court, 106 Mont. 347, 78 P.2d 353;
Davis v.
State, 30 Okl.Cr. 61, 234 P. 787;
State ex rel. Fong v.
Superior Court, 29 Wash. 2d 601, 188 P.2d 125,
certiorari
denied, 337 U.S. 956;
State v. Adams, 103 W.Va. 77,
136 S.E. 703.
[
Footnote 6]
There is no dispute that the objects searched for and seized
here, having been utilized in perpetrating a crime for which arrest
was made, were properly subject to seizure. Such objects are to be
distinguished from merely evidentiary materials which may not be
taken into custody.
United States v. Lefkowitz, supra, at
285 U. S.
464-466;
Gouled v. United States, 255 U.
S. 298,
255 U. S.
309-311. This is a distinction of importance, for
"limitations upon the fruit to be gathered tend to limit the quest
itself. . . ."
United States v. Poller, 43 F.2d 911,
914.
MR. JUSTICE BLACK, dissenting.
Trupiano v. United States, 334 U.
S. 699, was decided on the unarticulated premise that
the Fourth Amendment, of itself, barred the use of evidence
obtained by what the Court considered an "unreasonable" search. I
dissented in that case. Later, concurring in this Court's decision
in
Wolf v. Colorado, 338 U. S. 25,
338 U. S. 39-40,
I stated my agreement with the "plain implication" of the
Wolf opinion that
"the federal exclusionary rule is not a command
Page 339 U. S. 67
of the Fourth Amendment, but is a judicially created rule of
evidence which Congress might negate."
In the light of the
Wolf case, the
Trupiano
rule is not a constitutional command, but rather an evidentiary
policy adopted by this Court in the exercise of its supervisory
powers over federal courts.
Cf. McNabb v. United States,
318 U. S. 332. The
present case comes within that rule: the trial court admitted
certain evidence procured by a search and seizure without a search
warrant, although the officers had ample time and opportunity to
get one. Whether this Court should adhere to the
Trupiano
principle making evidence so obtained inadmissible in federal
courts now presents no more than a question of what is wise
judicial policy. Although the rule does not in all respects conform
to my own ideas, I think that the reasons for changing it are
outweighed by reasons against its change.
In recent years, the scope of the rule has been a subject of
almost constant judicial controversy both in trial and appellate
courts. In no other field has the law's uncertainty been more
clearly manifested. To some extent, that uncertainty may be
unavoidable. The
Trupiano case itself added new confusions
"in a field already replete with complexities."
Trupiano v.
United States, supra,
334 U. S. 716. But overruling that decision merely
aggravates existing uncertainty. For as MR. JUSTICE FRANKFURTER
points out, today's holding casts doubt on other cases recently
decided. And I do not understand how trial judges can be expected
to foresee what further shifts may occur. In my judgment, it would
be wiser judicial policy to adhere to the
Trupiano rule of
evidence, at least long enough to see how it works.
That rule is based upon very strict requirements designed to
narrow the occasions upon which officers can make searches and
seizures without judicial warrant. Unquestionably its application
will now and then permit
Page 339 U. S. 68
a guilty person to escape conviction because of hasty or
ill-advised action on the part of enforcement officers. But the
same may be said of the requirements of the Fourth Amendment which
the exclusionary rule was fashioned to implement. The framers of
the Fourth Amendment must have concluded that reasonably strict
search and seizure requirements were not too costly a price to pay
for protection against the dangers incident to invasion of private
premises and papers by officers, some of whom might be overzealous
and oppressive.
See dissent in
Feldman v. United
States, 322 U. S. 487,
322 U. S.
500-502. Nor can I see where the enforcement of criminal
justice is likely to be seriously handicapped by adhering to the
Trupiano holding.
I would affirm the judgment of the Court of Appeals.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins,
dissenting.
The clear-cut issue before us is this: in making a lawful
arrest, may arresting officers search without a search warrant not
merely the person under arrest or things under his immediate
physical control, but the premises where the arrest is made,
although there was ample time to secure such a warrant and no
danger that the "papers and effects" for which a search warrant
could be issued would be despoiled or destroyed?
The old saw that hard cases make bad law has its basis in
experience. But petty cases are even more calculated to make bad
law. The impact of a sordid little case is apt to obscure the
implications of the generalization to which the case gives rise.
Only thus can I account for a disregard of the history embedded in
the Fourth Amendment and the great place which belongs to that
Amendment in the body of our liberties as recognized and applied by
unanimous decisions over a long stretch of the Court's history.
Page 339 U. S. 69
It is a fair summary of history to say that the safeguards of
liberty have frequently been forged in controversies involving not
very nice people. And so, while we are concerned here with a shabby
defrauder, we must deal with his case in the context of what are
really the great themes expressed by the Fourth Amendment. A
disregard of the historic materials underlying the Amendment does
not answer them.
1. It is true also of journeys in the law that the place you
reach depends on the direction you are taking. And so, where one
comes out on a case depends on where one goes in. It makes all the
difference in the world whether one approaches the Fourth Amendment
as the Court approached it in
Boyd v. United States,
116 U. S. 616, in
Weeks v. United States, 232 U. S. 383, in
Silverthorne Lumber Co. v. United States, 251 U.
S. 385, in
Gouled v. United States,
255 U. S. 298, or
one approaches is as a provision dealing with a formality. It makes
all the difference in the world whether one recognizes the central
fact about the Fourth Amendment, namely, that it was a safeguard
against recurrence of abuses so deeply felt by the Colonies as to
be one of the potent causes of the Revolution, or one thinks of it
as merely a requirement for a piece or paper.
2. This is the Fourth Amendment:
"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."
These words are not just a literary composition. They are not to
be read as they might be ready by a man who knows English but has
no knowledge of the history that gave rise to the words. The clue
to the meaning and
Page 339 U. S. 70
scope of the Fourth Amendment is John Adams' characterization of
Otis' argument against search by the police that "American
independence was then and there born." 10 Adams,
Works
247. One cannot wrench "unreasonable searches" from the text and
context and historic content of the Fourth Amendment. It was the
answer of the Revolutionary statesmen to the evils of searches
without warrants and searches with warrants unrestricted in scope.
Both were deemed "unreasonable." Words must be read with the gloss
of the experience of those who framed them. Because the experience
of the framers of the Bill of Rights was so vivid, they assumed
that it would be carried down the stream of history and that their
words would receive the significance of the experience to which
they were addressed -- a significance not to be found in the
dictionary. When the Fourth Amendment outlawed "unreasonable
searches" and then went on to define the very restricted authority
that even a search warrant issued by a magistrate could give, the
framers said with all the clarity of the gloss of history that a
search is "unreasonable" unless a warrant authorizes it, barring
only exceptions justified by absolute necessity. Even a warrant
cannot authorize it except when it is issued "upon probable cause .
. . and particularly describing the place to be searched, and the
persons or things to be seized." [
Footnote 2/1] With all respect, I suggest that it makes
a mockery of the Fourth Amendment to sanction search without a
search warrant merely because of the
Page 339 U. S. 71
legality of an arrest. I have yet to hear the answer to Judge
Learned Hand's reasoning below that to make the validity of a
search
"depend upon the presence of the party in the premises searched
at the time of the arrest . . . would make crucial a circumstance
that has no rational relevance to the purposes of the privilege.
The feelings which lie behind it have their basis in the
resentment, inevitable in a free society, against the invasion of a
man's privacy without some judicial sanction. It is true that, when
one has been arrested in his home or his office, his privacy has
already been invaded; but that interest, though lost, is altogether
separate from the interest in protecting his papers from
indiscriminate rummage, even though both are customarily grouped
together as parts of the 'right of privacy.' . . . The history of
the two privileges is altogether different; the Fourth Amendment
distinguishes between them; and, in statutes, they have always been
treated as depending upon separate conditions."
176 F.2d 732, 735.
3. This brings me to a consideration of the right of search and
seizure "incident to arrest." Undue haste in coming to that issue
too readily leads to getting off the track of the Fourth Amendment.
The Government argued as though the Constitution said search of
premises may be at large whenever an arrest is made in them. The
utterly free hand, for all practical purposes, this gives the
arresting officers to rummage all over the house is, I think,
inevitable unless the basis of any right to search as an incident
to arrest is put in proper focus. Photographs can be so taken as to
make a midget look like a giant, and vice versa. The same kind of
distortion results if a legal doctrine embedded in a larger matrix
of principle is taken out of the matrix and elevated to an
independent position. In
Page 339 U. S. 72
plain English, the right to search incident to arrest is merely
one of those very narrow exceptions to the
"guaranties and immunities which we had inherited from our
English ancestors, and which had, from time immemorial, been
subject to certain well recognized exceptions arising from the
necessities of the case."
Robertson v. Baldwin, 165 U. S. 275,
165 U. S.
281.
4. What, then, is the exception to the prohibition by the Fourth
Amendment of search without a warrant in case of a legal arrest,
whether the arrest is on a warrant or based on the historic right
of arrest without a warrant if a crime is committed in the presence
of the arrester? The exception may in part be a surviving incident
of the historic role of "hue and cry" in early Anglo-Saxon law.
See Judge Cardozo in
People v. Chiagles, 237 N.Y.
193, 196, 142 N.E. 583, 584. Its basic roots, however, lie in
necessity. What is the necessity? Why is search of the arrested
person permitted? For two reasons: first, in order to protect the
arresting officer and to deprive the prisoner of potential means of
escape,
Closson v. Morrison, 47 N.H. 482, and, secondly,
to avoid destruction of evidence by the arrested person.
See
Reifsnyder v. Lee, 44 Iowa 101, 103;
Holker v.
Hennessey, 141 Mo. 527, 540, 42 S.W. 1090, 1093. From this it
follows that officers may search and seize not only the things
physically on the person arrested, but those within his immediate
physical control. What a farce it makes of the whole Fourth
Amendment to say that, because, for many legal purposes, everything
in a man's house is under his control, therefore his house -- his
rooms -- may be searched. Of course, in this field of law, as in
others, opinions sometimes use language not with fastidious
precision. Apart from such instances of loose use of language, the
doctrine of search incidental to arrest has, until very recently,
been strictly confined to the necessities of the situation,
i.e., the search
Page 339 U. S. 73
of the person and those immediate physical surroundings which
may fairly be deemed to be an extension of his person.
5. Another exception to the constitutional prohibition of
unreasonable searches is likewise rooted in necessity. The search
without a warrant of moving objects -- vehicles and vessels -- was
sanctioned in
Carroll v. United States, 267 U.
S. 132, on the ground that
"it is not practicable to secure a warrant, because the vehicle
can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought."
267 U.S. at
267 U. S. 153.
Furthermore, the limits of the exception were carefully defined in
terms of necessity, for the Court added:
"In cases where the securing of a warrant is reasonably
practicable, it must be used and when properly supported by
affidavit and issued after judicial approval protects the seizing
officer against a suit for damages. In cases where seizure is
impossible except without warrant, the seizing officer acts
unlawfully and at his peril unless he can show the court probable
cause."
267 U.S. at
267 U. S.
156.
Even as to moving vehicles, this Court did not lay down an
absolute rule dispensing with a search warrant. It limited
dispensation to the demands of necessity, where want of time
precluded the obtaining of a warrant. The necessity founded on the
time factor which guided the Court in the
Carroll case
cannot justify the search here made of the respondent's premises,
for there was ample time to obtain a warrant before the arrest and
even on the occasion of the arrest.
6. It is in this connection that the body of congressional
enactments becomes significant, particularly legislation
contemporaneous with the adoption of the Bill of Rights. If
explicit legislation was deemed necessary to inspect without
warrant even vessels and vehicles, and if
Page 339 U. S. 74
Congress has been very niggardly in giving authority to search
even with a warrant -- niggardly both as to the officers who may
obtain such warrants and as to strictly defined circumstances under
which search is allowed -- the attitude disclosed by this
impressive legislation bears powerfully on the historic purposes of
the Fourth Amendment and the functions that it fulfills in our
democracy. It deserves to be recalled that Congress, despite
repeated requests by Attorneys General, long refused to make search
by warrant generally available as an aid to criminal prosecution.
It did not do so until the First World War, and even then it did
not do so except under conditions most carefully circumscribed.
[
Footnote 2/2]
7. With only rare deviations, such as today's decision, this
Court has construed the Fourth Amendment "liberally to safeguard
the right of privacy."
United States v. Lefkowitz,
285 U. S. 452,
285 U. S. 464.
[
Footnote 2/3] The guiding line in
dealing with the Fourth Amendment was set forth in
Gouled v.
United States, 255 U. S. 298,
255 U. S.
303-304:
"It would not be possible to add to the emphasis with which the
framers of our Constitution and this court (in
Boyd v. United
States, 116 U. S. 616, in
Weeks v.
United States, 232 U. S. 383, and in
Silverthorne Lumber Co. v. United States, 251 U. S.
385) have declared the importance to political liberty
and to the welfare of our country of the due observance of the
rights guaranteed under the Constitution by these two amendments.
The effect of the decisions cited is: that such rights are declared
to be indispensable to the 'full enjoyment of personal
security,
Page 339 U. S. 75
personal liberty and private property'; that they are to be
regarded as of the very essence of constitutional liberty; and that
the guaranty of them is as important and as imperative as are the
guaranties of the other fundamental rights of the individual
citizen -- the right, to trial by jury, to the writ of habeas
corpus, and to due process of law. It has been repeatedly decided
that these amendments should receive a liberal construction so as
to prevent stealthy encroachment upon or 'gradual depreciation' of
the rights secured by them, by imperceptible practice of courts or
by well intentioned, but mistakenly overzealous, executive
officers."
8. The opinion of the Court insists, however, that its major
premise -- that an arrest creates a right to search the place of
arrest -- finds support in decisions beginning with
Weeks v.
United States, 232 U. S. 383.
These decisions do not justify today's decision. They merely prove
how a hint becomes a suggestion, is loosely turned into dictum and
finally elevated to a decision. This progressive distortion is due
to an uncritical confusion of (1) the right to search the person
arrested and articles in his immediate physical control and (2) the
right to seize visible instruments or fruits of crime at the scene
of the arrest with (3) an alleged right to search the place of
arrest. It is necessary in this connection to distinguish clearly
between prohibited searches and improper seizures. It is
unconstitutional to make an improper search even for articles that
are appropriately subject to seizure when found by legal means.
E.g., Amos v. United States, 255 U.
S. 313;
Byars v. United States, 273 U. S.
28;
Taylor v. United States, 286 U. S.
1. Thus, the seizure of items properly subject to
seizure because in open view at the time of arrest does not carry
with it the right to search for such items.
Page 339 U. S. 76
The doctrine of the right to search the place of arrest
announced today rests on the precarious foundation of this passage
in the
Weeks case:
"What, then, is the present case? Before answering that inquiry
specifically, it may be well by a process of exclusion to state
what it is not. It is not an assertion of the right on the part of
the government always recognized under English and American law, to
search the person of the accused when legally arrested, to discover
and seize the fruits or evidences of crime. This right has been
uniformly maintained in many cases. 1 Bishop, Crim. Proc., § 211;
Wharton, Crim.Pl. & Pr., 8th ed., § 60;
Dillon v.
O'Brien, 16 Cox C.C. 245. . . . Nor is it the case of
burglar's tools or other proofs of guilt found upon his arrest
within the control of the accused."
232 U. S. 232 U.S.
383,
232 U. S.
392.
The statement does not even refer to a right to search the place
of arrest, and the authorities cited merely support the assertion
of a right to search the person arrested and to seize visible
instruments or fruits of crime. [
Footnote 2/4]
The authority to search which flows from the right to arrest was
next discussed by this Court in
Carroll v. United States,
267 U. S. 132,
267 U. S.
158:
"When a man is legally arrested for an offense, whatever is
found upon his person or in his control which it is unlawful for
him to have and which may be used to prove the offense may be
seized and held as evidence in the prosecution. "
Page 339 U. S. 77
While broader than the
Weeks statement, this is still
far from claiming the right to search a place merely because of an
arrest there. What was said in the earlier case about articles in
the control of the arrested person not being in issue is now stated
positively as a right to seize whatever is found in the control of
the person arrested. This
Carroll statement is based on
what was said in
Weeks, and on two State cases which did
not enunciate a right to search the place of arrest. [
Footnote 2/5]
These limited statements in the
Weeks and
Carroll opinions were uncritically expanded in
Agnello
v. United States, 269 U. S. 20,
269 U. S.
30:
"The right without a search warrant contemporaneously to search
persons lawfully arrested while committing crime and to search the
place where the arrest is made in order to find and seize things
connected with the crime as its fruits or as the means by which it
was committed, as well as weapons and other things to effect an
escape from custody is not to be doubted.
See Carroll v. United
States, 267 U. S. 132,
267 U. S.
158;
Weeks v. United States, 232 U. S.
383,
232 U. S. 392."
If such a right was "not to be doubted" it certainly cannot be
supported by the cases cited.
Carroll and
Weeks
may
Page 339 U. S. 78
have established a right to seize visible evidences of crime and
to search the person arrested and even objects he physically
controls, but neither case so much as hints that there is a right
to search the entire place of arrest for "things connected with the
crime."
In
Marron v. United States, 275 U.
S. 192, these carelessly phrased dicta were for the
first time reflected in the result. The statement in the opinion
that officers
"had a right without a warrant contemporaneously to search the
place in order to find and seize the things used to carry on the
criminal enterprise,"
275 U.S. at
275 U. S. 199, was
drastically qualified by
Go-Bart Co. v. United States,
282 U. S. 344, and
United States v. Lefkowitz, 285 U.
S. 452. The teaching of those cases is that the warrant
of arrest carries with it authority to seize all that is on the
person, or in such immediate physical relation to the one arrested
as to be in a fair sense a projection of his person. The
Lefkowitz decision emphasized that the things seized in
Marron "being in plain view were picked up by the officers
as an incident of the arrest. No search for them was made." 285
U.S. at
285 U. S. 465.
Thus explained,
Marron stands merely for the historically
justified right to seize visible instruments of crime at the scene
of the arrest.
In reliance on the prior dicta and on the
Marron
decision, it was asserted in
Harris v. United States,
331 U. S. 145,
331 U. S. 150,
that "Search and seizure incident to lawful arrest is a practice of
ancient origin." Literally, this is true: the right to search the
person arrested and to seize visible instruments of crime has a
good legal title. But judicial history cannot be avouched if this
statement is meant to cover the right to search the place of
arrest. Such a claim can only be made by sliding from a search of
the person to a search for things in his "possession" or "in his
immediate control," without regard to the treacherous ambiguity of
these terms, and then using
Page 339 U. S. 79
these phrases, taken out of their original context, so as to
include the entire premises.
The short of it is that the right to search the place of arrest
is an innovation based on confusion, without historic foundation,
and made in the teeth of a historic protection against it.
9. If the exception of search without a warrant incidental to a
legal arrest is extended beyond the person and his physical
extension, search throughout the house necessarily follows. I am
aware that most differences in the law depend on differences of
degree. But differences though of degree must not be capricious;
the differences must permit rational classification. If upon arrest
you may search beyond the immediate person and the very restricted
area that may fairly be deemed part of the person, what rational
line can be drawn short of searching as many rooms as arresting
officers may deem appropriate for finding "the fruits of the
crime"? Is search to be restricted to the room in which the person
is arrested, but not to another open room into which it leads? Or,
take a house or an apartment consisting largely of one big room
serving as dining room, living room and bedroom. May search be made
in a small room, but not in such a large room? If you may search
the bedroom part of a large room, why not a bedroom separated from
the dining room by a partition? These are not silly hard cases.
They put the principle to a test. The right to search an arrested
person and to take the stuff on top of the desk at which he sits
has a justification of necessity which does not eat away the great
principle of the Fourth Amendment. But to assume that this
exception of a search incidental to arrest permits a free-handed
search without warrant is to subvert the purpose of the Fourth
Amendment by making the exception displace the principle. History
and the policy which it represents alike admonish against it.
Page 339 U. S. 80
10. To tear "unreasonable" from the context and history and
purpose of the Fourth Amendment in applying the narrow exception of
search as an incident to an arrest is to disregard the reason to
which reference must be made when a question arises under the
Fourth Amendment. It is to make the arrest an incident to an
unwarranted search, instead of a warrantless search an incident to
an arrest. The test by which searches and seizures must be judged
is whether conduct is consonant with the main aim of the Fourth
Amendment. The main aim of the Fourth Amendment is against invasion
of the right of privacy as to one's effects and papers, without
regard to the result of such invasion. The purpose of the Fourth
Amendment was to assure that the existence of probable cause as the
legal basis for making a search was to be determined by a judicial
officer before arrest and not after, subject only to what is
necessarily to be excepted from such requirement. The exceptions
cannot be enthroned into the rule. The justification for intrusion
into a man's privacy was to be determined by a magistrate
uninfluenced by what may turn out to be a successful search for
papers, the desire to search for which might be the very reason for
the Fourth Amendment's prohibition. The framers did not regard
judicial authorization as a formal requirement for a piece of
paper. They deemed a man's belongings part of his personality and
his life. In dealing with the question, this Court in
United
States v. Lefkowitz, 285 U. S. 452,
285 U. S. 464,
approvingly cited what was said by Judge Learned Hand in
United
States v. Kirschenblatt, 16 F.2d 202, 203:
"Whatever the casuistry of border cases, it is broadly a totally
different thing to search a man's pockets and use against him what
they contain, from ransacking his house for everything which may
incriminate him, once you have gained lawful entry, either
Page 339 U. S. 81
by means of a search warrant or by his consent. The second is a
practice which English-speaking peoples have thought intolerable
for over a century and a half. It was against general warrants of
search, whose origin was, or was thought to be, derived from Star
Chamber, and which had been a powerful weapon for suppressing
political agitation, that the decisions were directed, of which
Entick v. Carrington, 19 How.St.Trials, 1029, is most
often cited. These cases were decided just after the colonists had
been hotly aroused by the attempt to enforce customs duties by
writs of assistance, and when, within 30 years, they framed the
Fourth Amendment, it was general warrants that they especially had
in mind.
Boyd v. United States, 116 U. S.
616. . . ."
"After arresting a man in his house, to rummage at will among
his papers in search of whatever will convict him appears to us to
be indistinguishable from what might be done under a general
warrant; indeed, the warrant would give more protection, for
presumably it must be issued by a magistrate. True, by hypothesis,
the power would not exist if the supposed offender were not found
on the premises; but it is small consolation to know that one's
papers are safe only so long as one is not at home. Such
constitutional limitations arise from grievances, real or fancied,
which their makers have suffered, and should go
pari passu
with the supposed evil. They withstand the winds of logic by the
depth and toughness of their roots in the past. Nor should be
forget that what seems fair enough against a squalid huckster of
bad liquor may take on a very different face if used by a
government determined to suppress political opposition under the
guise of sedition. "
Page 339 U. S. 82
11. By the Bill of Rights, the founders of this country
subordinated police action to legal restraints not in order to
convenience the guilty, but to protect the innocent. Nor did they
provide that only the innocent may appeal to these safeguards. They
knew too well that the successful prosecution of the guilty does
not require jeopardy to the innocent. The knock at the door under
the guise of a warrant of arrest for a venial or spurious offense
was not unknown to them.
Compare the statement in
Weeks v. United States, 232 U. S. 383,
232 U. S. 390,
that searches and seizures had been made under general warrants in
England "in support of charges, real or imaginary." We have had
grim reminders in our day of their experience. Arrest under a
warrant for a minor or a trumped-up charge has been familiar
practice in the past, is a commonplace in the police state of
today, and too well known in this country.
See Lanzetta v. New
Jersey, 306 U. S. 451. The
progress is too easy from police action unscrutinized by judicial
authorization to the police state. The founders wrote into the
Constitution their conviction that law enforcement does not require
the easy but dangerous way of letting the police determine when
search is called for without prior authorization by a magistrate.
They have been vindicated in that conviction. It may safely be
asserted that crime is most effectively brought to book when the
principles underlying the constitutional restraints upon police
action are most scrupulously observed.
The highly experienced Commission on Law Observance and
Enforcement appointed by President Hoover spoke of "the high
standards of conduct exacted by Englishmen of the police." Vol. IV
Reports of the National Commission on Law Observance and
Enforcement ("Lawlessness in Law Enforcement") p. 259. It is
suggested that we cannot afford the luxury of such
Page 339 U. S. 83
theoretically desirable subordination of the police to law
because greater obedience to law is part of English life generally.
I do not think that acceptance of lower standards than those
prevailing in England should be written by us into law. That only
serves to encourage low standards, not to elevate them. It is
unfair to our people to suggest that they cannot attain as high
standards as do the British in guarding against police excesses
without impairing effective means for combatting crime. Experience
proves that it is a counsel of despair to assume that the police
cannot be kept within the bounds of the principles which the Fourth
and Fifth Amendments embody except at the cost of impotence in
preventing crime and dealing sternly with its commission.
12. To say that the search must be reasonable is to require some
criterion of reason. It is no guide at all either for a jury or for
district judges or the police to say that an "unreasonable search"
is forbidden -- that the search must be reasonable. What is the
test of reason which makes a search reasonable? The test is the
reason underlying and expressed by the Fourth Amendment: the
history and the experience which it embodies and the safeguards
afforded by it against the evils to which it was a response. There
must be a warrant to permit search, barring only inherent
limitations upon that requirement when there is a good excuse for
not getting a search warrant,
i.e., the justifications
that dispense with search warrants when searching the person in his
extension, which is his body and that which his body can
immediately control, and moving vehicles. It is for this Court to
lay down criteria that the district judges can apply. It is no
criterion of reason to say that the district court must find it
reasonable.
13. Even if the test of reasonableness is to be taken out of the
context of the history and purpose of the
Page 339 U. S. 84
Fourth Amendment, the test should not be limited to examination
of arresting officers' conduct in making the arrest. Their conduct
prior to arrest is no less relevant. In any event, therefore, the
presence or absence of an ample opportunity for getting a search
warrant becomes very important. It is not a rule of thumb. It is a
rule of the Fourth Amendment, and of the reasons for its adoption.
It is not a rule invented in
Trupiano v. United States,
334 U. S. 699. It
is not a rule of those who came on this Court in recent years. The
decision in
Taylor v. United States, 286 U. S.
1, turned on it. It was not a sentimental Court that
stated in
Taylor:
"Although, over a considerable period, numerous complaints
concerning the use of these premises had been received, the agents
had made no effort to obtain a warrant for making a search. They
had abundant opportunity so to do and to proceed in an orderly way
even after the odor had emphasized their suspicions; there was no
probability of material change in the situation during the time
necessary to secure such warrant. Moreover, a short period of
watching would have prevented any such possibility."
286 U.S. at
286 U. S. 6.
That the arrest in that case was made after the search was begun
does not affect its importance. Opportunity to obtain a search
warrant is either relevant or irrelevant in determining the
application of the Fourth Amendment. As the Court conceives the
test of unreasonableness, different factors may be given varying
weight. But opportunity to obtain a warrant cannot be relevant in
one situation and totally irrelevant in another. That is the
significance of the
Taylor case.
In the case before us, there is not the slightest suggestion
that the arresting officers had not the time to
Page 339 U. S. 85
secure a search warrant. The arrest and search were made on
February 16, 1943. On February 1, there was strong evidence that
respondent had in his possession large numbers of stamps bearing
forged overprints, in violation of 18 U.S.C. § 265. On February 6,
a postal employee purchased from respondent four stamps bearing
overprints and, on February 9, reports were received showing the
overprints to be forgeries. Thus, the Government had at least
seven, and more accurately fifteen, days in which to procure a
search warrant. Nor was this a case in which the need for a search
became apparent at the time of arrest. The arresting officers were
accompanied by two stamp experts, whose sole function was to
examine the fruits of the search which they knew would be made.
This is hardly a natural description of a "search incidental to an
arrest."
It is most relevant that the officers had "no excuse for not
getting a search warrant," 176 F.2d 732, 735, for that is precisely
what the Fourth Amendment was directed against -- that some
magistrate, and not the police officer, should determine, if such
determination is not precluded by necessity, who shall be rummaging
around in my room, whether it be a small room or a very large room,
whether it be one room, or two rooms, or three rooms, or four
rooms.
14. It is not as though we are asked to extend a mischievous
doctrine that has been shown to hamper law enforces. We are asked
to overrule decisions based on a long course of prior unanimous
decisions, drawn from history and legislative experience. In
overruling
Trupiano, we overrule the underlying principle
of a whole series of recent cases:
United States v. Di Re,
332 U. S. 581;
Johnson v. United States, 333 U. S.
10;
McDonald v. United States, 335 U.
S. 451, based on the earlier cases. For these cases
ought not to be allowed to remain as
Page 339 U. S. 86
derelicts on the stream of the law if we overrule
Trupiano. These are not outmoded decisions eroded by time.
Even under normal circumstances, the Court ought not to overrule
such a series of decisions where no mischief flowing from them has
been made manifest. Respect for continuity in law, where reasons
for change are wanting, alone requires adherence to
Trupiano and the other decisions. Especially ought the
Court not reenforce needlessly the instabilities of our day by
giving fair ground for the belief that Law is the expression of
chance -- for instance, of unexpected changes in the Court's
composition and the contingencies in the choice of successors.
[
Footnote 2/1]
For a more detailed summary of the English and American history
underlying the Fourth Amendment,
see the dissenting
opinions in
Davis v. United States, 328 U.
S. 582,
328 U. S.
603-605, and
Harris v. United States,
331 U. S. 145,
331 U. S.
157-162. The impact of this history was such that every
State of the Union now affords constitutional safeguards against
governmental search and seizure. Its contemporary vitality is
emphasized by New York's adoption of such a provision as recently
as 1938. N.Y.Const. of 1938, Art. 1, § 12.
[
Footnote 2/2]
See Title XI of the Act of June 15, 1917, 40 Stat. 217,
228, now Rule 41 of the Federal Rules of Criminal Procedure. For a
table of congressional legislation, indicating its scope,
see the Appendix to the dissenting opinion in
Davis v.
United States, 328 U. S. 582,
328 U. S.
616.
[
Footnote 2/3]
See also an analysis of the cases in the Appendix to
the dissenting opinion in
Harris v. United States,
331 U. S. 145,
331 U. S.
175.
[
Footnote 2/4]
A fair sample is § 60 of Wharton, Crim.Plead. and Practice, 8th
ed.: "Right to Take Money from the Person of the Defendant," which
discusses only the right to search the person arrested. Again, in
Dillon v. O'Brien and Davis, 16 Cox C.C. 245, the issue
was the right of arresting officers to seize apparent evidences of
crime, not their right to rifle files in an effort to turn up the
evidence.
[
Footnote 2/5]
Getchell v. Page, 103 Me. 387, 69 A. 624, was an action
for trespass for the seizure of accoutrements of liquor-making
under a warrant which authorized the search and seizure of
intoxicating liquor. The decision that the officer was not liable
for the seizure under those circumstances does not support an
independent right to search the place of arrest. In
Kneeland v.
Connally, 70 Ga. 424, 425, the other case cited, the court
actually held that the trial court had no jurisdiction of the case.
It went on to say that
"just as a warrant to arrest a man charged with murder would
carry with it authority to seize the bloody knife or smoking pistol
which killed,"
the instruments of the crime of gaming could be seized in
arresting a proprietor of a gambling house. But once again no
authority to search for these instruments was suggested.