A Baltimore City health inspector seeking the source of a rat
infestation discovered evidence of such an infestation in the rear
of appellant's home, and, having no search warrant, requested
appellant's permission to inspect his basement in the daytime. For
refusing such permission, appellant was convicted and fined for a
violation of § 120 of Art. 12 of the Baltimore City Code, which
provides that
"Whenever the Commissioner of Health shall have cause to suspect
that a nuisance exists in any house, cellar, or enclosure, he may
demand entry therein in the day time, and if the owner or occupier
shall refuse or delay to open the same and admit a free
examination, he shall forfeit and pay for every such refusal the
sum of Twenty Dollars."
Held: Section 120 is valid, and appellant's conviction
for resisting an inspection of his house without a warrant did not
violate the Due Process Clause of the Fourteenth Amendment. Pp.
359 U. S.
361-373.
Affirmed.
Page 359 U. S. 361
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Acting on a complaint from a resident of the 4300 block of
Reisterstown Road, Baltimore, Maryland, that there were rats in her
basement, Gentry, an inspector of the Baltimore City Health
Department, began an inspection of the houses in the vicinity
looking for the source of the rats. In the middle of the afternoon
of February 27, 1958, Gentry knocked on the door or appellant's
detached frame home at 4335 Reisterstown Road. After receiving no
response, he proceeded to inspect the area outside the house. This
inspection revealed that the house was in an "extreme state of
decay," and that, in the rear of the house, there was a pile later
identified as "rodent feces mixed with straw and trash and debris
to approximately half a ton." During this inspection, appellant
came around the side of the house and asked Gentry to explain his
presence. Gentry responded that he had evidence of rodent
infestation and asked appellant for permission to inspect the
basement area. Appellant refused. At no time did Gentry have a
warrant authorizing him to enter. The next forenoon, Gentry, in the
company of two police officers, returned to appellant's house.
After receiving no response to his knock, he reinspected the
exterior of the premises. He then swore out a warrant for
appellant's arrest alleging a violation of § 120 of Art. 12 of the
Baltimore City Code. That section provides:
"Whenever the Commissioner of Health shall have cause to suspect
that a nuisance exists in any house, cellar or enclosure, he may
demand entry therein in the day time, and if the owner or occupier
shall refuse or delay to open the same and admit a free
examination, he shall forfeit and pay for every such refusal the
sum of Twenty Dollars. "
Page 359 U. S. 362
Appellant was arrested on March 5, and the next day was found
guilty of the offense alleged in the warrant by a Police Justice
for the Northern District of Baltimore and fined twenty dollars. On
appeal, the Criminal Court of Baltimore, in a
de novo
proceeding, also found appellant guilty. The Maryland Court of
Appeals denied certiorari. The case came here under a challenge, 28
U.S.C. § 1257(2), to the validity of § 120, to determine whether
appellant's conviction for resisting an inspection of his house
without a warrant was obtained in violation of the Fourteenth
Amendment.
The Health Code of the City of Baltimore, of which § 120 is an
important part, deals with many of the multiform aspects of hygiene
in modern urban areas. A vital portion concerns the hygiene of
housing. Typical of the content and method of enforcing its
provisions is the section requiring that
"[e]very dwelling and every part thereof shall be kept clean and
free from any accumulation of dirt, filth, rubbish, garbage or
similar matter, and shall be kept free from vermin or rodent
infestation."
Baltimore City Code, Art. 12, § 112. If the occupant of a
building fails to meet this standard, he is notified by the
Commissioner of Health to abate the substandard conditions.
[
Footnote 1] Failure to remove
these hazards to community health gives rise to criminal
prosecution.
Ibid. The attempted inspection of appellant's
home was merely to ascertain the existence of evils to be corrected
upon due notification or, in default of such correction, to be made
the basis of punishment.
We have said that "[t]he security of one's privacy against
arbitrary intrusion by the police" is fundamental to a free
society, and, as such, protected by the Fourteenth
Page 359 U. S. 363
Amendment.
Wolf v. Colorado, 338 U. S.
25,
338 U. S. 27.
Application of the broad restraints of due process compels inquiry
into the nature of the demand being made upon individual freedom in
a particular context and the justification of social need on which
the demand rests.
The history of the constitutional protection against official
invasion of the citizen's home makes explicit the human concerns
which it was meant to respect. In years prior to the Revolution,
leading voices in England and the Colonies protested against the
ransacking by Crown officers of the homes of citizens in search of
evidence of crime or of illegally imported goods. The vivid memory
by the newly independent Americans of these abuses produced the
Fourth Amendment as a safeguard against such arbitrary official
action by officers of the new Union, as like provisions had already
found their way into State Constitutions.
In 1765, in England, what is properly called the great case of
Entick v. Carrington, 19 Howell's State Trials, col. 1029,
announced the principle of English law which became part of the
Bill of Rights and whose basic protection has become imbedded in
the concept of due process of law. It was there decided that
English law did not allow officers of the Crown to break into a
citizen's home, under cover of a general executive warrant, to
search for evidence of the utterance of libel. Among the reasons
given for that decision were these:
"It is very certain, that the law obligeth no man to accuse
himself; because the necessary means of compelling self-accusation,
falling upon the innocent as well as the guilty, would be both
cruel and unjust; and it should seem that search for evidence is
disallowed upon the same principle. There, too, the innocent would
be confounded with the guilty."
Id. at col. 1073.
Page 359 U. S. 364
These were not novel pronouncements to the colonists. A few
years earlier, in Boston, revenue officers had been authorized to
sue Writs of Assistance, empowering them to search suspected
places, including private houses, for smuggled goods. In 1761, the
validity of the use of the Writs was contested in the historic
proceedings in Boston. James Otis attacked the Writ of Assistance
because its use placed "the liberty of every man in the hands of
every petty officer." [
Footnote
2] His powerful argument so impressed itself first on his
audience and later on the people of all the Colonies that President
Adams was in retrospect moved to say that "American Independence
was then and there born." [
Footnote
3] Many years later, this Court, in
Boyd v. United
States, 116 U. S. 616,
carefully reviewed this history and pointed out, as did Lord Camden
in
Entick v. Carrington, that
". . . the 'unreasonable searches and seizures' condemned in the
Fourth Amendment are almost always made for the purpose of
compelling a man to give
Page 359 U. S. 365
evidence against himself, which in criminal cases is condemned
in the Fifth Amendment; and compelling a man 'in a criminal case to
be a witness against himself,' which is condemned in the Fifth
Amendment, throws light on the question as to what is an
'unreasonable search and seizure' within the meaning of the Fourth
Amendment."
116 U.S. at
116 U. S.
633.
Against this background, two protections emerge from the broad
constitutional proscription of official invasion. The first of
these is the right to be secure from intrusion into personal
privacy, the right to shut the door on officials of the state
unless their entry is under proper authority of law. The second,
and intimately related protection, is self-protection: the right to
resist unauthorized entry which has as its design the securing of
information to fortify the coercive power of the state against the
individual, information which may be used to effect a further
deprivation of life or liberty or property. Thus, evidence of
criminal action may not, save in very limited and closely confined
situations, be seized without a judicially issued search warrant.
It is this aspect of the constitutional protection to which the
quoted passages from
Entick v. Carrington and
Boyd v.
United States refer. Certainly it is not necessary to accept
any particular theory of the interrelationship of the Fourth and
Fifth Amendments [
Footnote 4]
to realize what history makes plain -- that it was on the issue of
the right to be secure from searches for evidence to be used in
criminal prosecutions or for forfeitures that the great battle for
fundamental liberty was fought. While these concerns for individual
rights were the historic impulses behind the Fourth Amendment and
its analogues in state constitutions, the application
Page 359 U. S. 366
of the Fourth Amendment and the extent to which the essential
right of privacy is protected by the Due Process Clause of the
Fourteenth Amendment are, of course, not restricted within these
historic bounds.
But giving the fullest scope to this constitutional right to
privacy, its protection cannot be here invoked. The attempted
inspection of appellant's home is merely to determine whether
conditions exist which the Baltimore Health Code proscribes. If
they do, appellant is notified to remedy the infringing conditions.
No evidence for criminal prosecution is sought to be seized.
Appellant is simply directed to do what he could have been ordered
to do without any inspection, and what he cannot properly resist,
namely, act in a manner consistent with the maintenance of minimum
community standards of health and wellbeing, including his own.
Appellant's resistance can only be based not on admissible
self-protection, but on a rarely voiced denial of any official
justification for seeking to enter his home. The constitutional
"liberty" that is asserted is the absolute right to refuse consent
for an inspection designed and pursued solely for the protection of
the community's health, even when the inspection is conducted with
due regard for every convenience of time and place.
The power of inspection granted by the Baltimore City Code is
strictly limited, more exacting than the analogous provisions of
many other municipal codes. Valid grounds for suspicion of the
existence of a nuisance must exist. Certainly the presence of a
pile of filth in the back yard combined with the rundown condition
of the house gave adequate grounds for such suspicion. The
inspection must be made in the daytime. Here was no midnight knock
on the door, but an orderly visit in the middle of the afternoon
with no suggestion that the hour was inconvenient. Moreover, the
inspector has no power to force
Page 359 U. S. 367
entry and did not attempt it. A fine is imposed for resistance,
but officials are not authorized to break past the unwilling
occupant.
Thus, not only does the inspection touch, at most, upon the
periphery of the important interests safeguarded by the Fourteenth
Amendment's protection against official intrusion, but it is hedged
about with safeguards designed to make the least possible demand on
the individual occupant, and to cause only the slightest
restriction on his claims of privacy. Such a demand must be
assessed in the light of the needs which have produced it.
Inspection without a warrant, as an adjunct to a regulatory
scheme for the general welfare of the community and not as a means
of enforcing the criminal law, has antecedents deep in our history.
For more than 200 years, Maryland has empowered its officers to
enter upon ships, carriages, shops, and homes in the service of the
common welfare. In pre-revolutionary days, trade, on which the
viability of the struggling Colonies depended, was of primary
concern. Thus, at a time when the tobacco trade was a vital part of
Maryland's economy, inspections of ships and carriages without a
warrant could be made to enforce uniform standards for packing and
shipping tobacco. [
Footnote 5]
Similarly, suspected evasion of import
Page 359 U. S. 368
duties on liquor and other goods could be found out by
inspection of stores and homes. [
Footnote 6] Generally, the power of entry was carefully
limited, requiring that ground for suspicion must exist and that
the inspection be conducted between "the rising and the setting of
the sun." [
Footnote 7]
In 1776, the newly independent State of Maryland incorporated,
as part of its basic Declaration of Rights, the principle
"That all warrants, without oath or affirmation, to search
suspected places, or to seize any person or property, are grievious
and oppressive; and all general warrants -- to search suspected
places, or to apprehend suspected persons, without naming or
describing the place, or the person in special -- are illegal, and
ought not to be granted."
See 3 Thorpe, Federal and State Constitutions (1909)
1688.
This provision was a product of the same history of abuse and
protest that gave birth to the Fourth Amendment. [
Footnote 8] It remains today as an essential
part of Maryland's Constitution. Yet the years following its
proclamation saw not a decline, but a marked increase, in statutory
authorization for inspection of the citizen's home. Not only were
the old regulations continued, but the power of
Page 359 U. S. 369
inspection was extended to new community concerns. In 1782,
Commissioners were empowered to "enter upon the lots, grounds, and
possessions, of any person or persons . . ." in order to regulate
and keep in repair the common sewerage systems. [
Footnote 9] Five years later, similar entries
on private property were allowed for the purpose of keeping the
public roads in repair. [
Footnote 10] Typical of the regulatory statutes enacted
in this period was an act permitting the clerk of the market
"to examine and weigh all such bread, and to seize, for the use
of the poor of the county, all such as they shall find deficient in
weight or fineness, and not baked or marked as aforesaid. . . .
[
Footnote 11]"
The penalty for resisting the entry of the clerk was "five
pounds current money." And so, when, in 1801, the power of
inspection without a warrant became an instrument of the
enforcement of the Baltimore health laws, no novel or untried
procedures were being invoked. The ordinance now challenged derives
from this 1801 ordinance. It provided:
"And be it enacted and ordained, That when, and as often as the
said commissioners of health, or any of them, shall have cause to
suspect a nuisance dangerous to the health of the city exists in
any house, cellar or inclosure shut up from public view, they, or
any one of them, may demand entry therein in the day time for the
purpose of examining the same, and if the owner or occupier thereof
shall refuse or delay
Page 359 U. S. 370
to open the same and to admit a free examination, he shall
forfeit and pay for every such refusal the sum of twenty dollars,
for the use of the corporation. [
Footnote 12]"
From the passage of this ordinance to the present, the
prevention and abatement of "nuisances" on private property has
been one of the chief concerns of the Baltimore City Health
Department. [
Footnote 13] In
the latter half of the nineteenth century, in the years following
the ratification of the Fourteenth Amendment, thousands upon
thousands of inspections were made under authority of this
ordinance. [
Footnote 14]
Thus, the system of inspection here under attack, having its
beginning in Maryland's colonial history, has been an integral part
of the enforcement of Baltimore's health laws for more than a
century and a half. The legal significance of such a long and
consistent history of state practice has been illuminated for us by
Mr. Justice Holmes:
"The Fourteenth Amendment, itself a historical product, did not
destroy history for the States and substitute mechanical
compartments of law all exactly alike. If a thing has been
practised for two hundred years by common consent, it will need a
strong case for the Fourteenth Amendment to affect it. . . ."
Jackman v. Rosenbaum Co., 260 U. S.
22,
260 U. S. 31.
(As to the constitutional significance of a "time-honored
procedure,"
Murray's Lessee v. Hoboken
Land and Improvement Co., 18 How. 272, and
Ownbey v. Morgan, 256 U. S. 94.)
Page 359 U. S. 371
Of course, this wise reminder, that what free people have found
consistent with their enjoyment of freedom for centuries is hardly
to be deemed to violate due process, does not freeze due process
within the confines of historical facts or discredited attitudes.
[
Footnote 15]
"It is of the very nature of a free society to advance in its
standards of what is deemed reasonable and right. Representing, as
it does, a living principle, due process is not confined within a
permanent catalogue of what may at a given time be deemed the
limits or the essentials of fundamental rights."
Wolf v. Colorado, 338 U. S. 25,
338 U. S.
27.
The power here challenged rests not only on a long history of
its exercise. It is a power which was continually strengthened and
applied to wider concerns through those very years when the right
of individuals to be free from peremptory official invasion
received increasing legislative and judicial protection. Nor is
this a situation where a new body of knowledge displaces previous
premises of action. There is a total want of important modification
in the circumstances or the structure of society which calls for a
disregard of so much history. On the contrary, the problems which
gave rise to these ordinances have multiplied manifold, as have the
difficulties of enforcement. The need to maintain basic, minimal
standards of housing, to prevent the spread of disease and of that
pervasive breakdown in the fiber of a people which is produced by
slums and the absence of the barest essentials of civilized living,
has mounted to a major concern of American government. The growth
of cities, the crowding of populations, the increased awareness of
the responsibility of the state for the living conditions of its
citizens, all have combined to create problems of the
Page 359 U. S. 372
enforcement of minimum standards of far greater magnitude than
the writers of these ancient inspection laws ever dreamed. Time and
experience have forcefully taught that the power to inspect
dwelling places, either as a matter of systematic area-by-area
search or, as here, to treat a specific problem, is of
indispensable importance to the maintenance of community health; a
power that would be greatly hobbled by the blanket requirement of
the safeguards necessary for a search of evidence of criminal acts.
The need for preventive action is great, and city after city has
seen this need and granted the power of inspection to its health
officials; and these inspections are apparently welcomed by all but
an insignificant few. [
Footnote
16] Certainly, the nature of our society has not vitiated the
need for inspections first thought necessary 158 years ago, nor has
experience revealed any abuse or inroad on freedom in meeting this
need by means that history and dominant public opinion have
sanctioned.
That there is "a total unlikeness" between "official acts and
proceedings,"
Boyd v. United States, 116 U.
S. 616,
116 U. S. 624,
for which the legal protection of privacy requires a
Page 359 U. S. 373
search warrant under the Fourteenth Amendment, and the situation
now under consideration is laid bare by the suggestion that the
kind of an inspection by a health official with which we are
concerned may be satisfied by what is, in effect, a synthetic
search warrant, an authorization "for periodic inspections." If a
search warrant be constitutionally required, the requirement cannot
be flexibly interpreted to dispense with the rigorous
constitutional restrictions for its issue. A loose basis for
granting a search warrant for the situation before us is to enter
by way of the back door to a recognition of the fact that, by
reason of their intrinsic elements, their historic sanctions, and
their safeguards, the Maryland proceedings requesting permission to
make a search without intruding when permission is denied do not
offend the protection of the Fourteenth Amendment.
In light of the long history of this kind of inspection and of
modern needs, we cannot say that the carefully circumscribed demand
which Maryland here makes on appellant's freedom has deprived him
of due process of law.
Affirmed.
[
Footnote 1]
If the nuisance constitutes an actual menace to health, the
Commissioner may abate it forthwith. Baltimore City Code, Art. 12,
§ 112.
[
Footnote 2]
Tudor, Life of James Otis (1823), 66. No complete text of the
Otis speech is extant, but see notes of Horace Gray, Jr., in
Quincy's Massachusetts Reports for 1761-1762, App. I, p. 469 et
seq. Tudor's life contains an account of it as well as of the
events leading to the speech and the reaction to it.
[
Footnote 3]
Id. at 61. Adams said:
"Otis was a flame of fire; with a promptitude of classical
allusions, a depth of research, a rapid summary of historical
events and dates, a profusion of legal authorities, a prophetic
glance of his eyes into futurity, and a rapid torrent of impetuous
eloquence, he hurried away all before him. American Independence
was then and there born. The seeds of patriots and heroes, to
defend the
Non sine Diis animosus infans, to defend the
vigorous youth, were then and there sown. Every man of an immense
crowded audience appeared to me to go away, as I did, ready to take
arms against Writs of Assistance. Then and there, was the first
scene of the first act of opposition to the arbitrary claims of
Great Britain. Then and there, the child Independence was born. In
fifteen years,
i.e., in 1776, he grew up to manhood and
declared himself free."
Id. at 60-61.
[
Footnote 4]
The Court in
Boyd v. United States, 116 U.
S. 616, relied heavily on the interrelationship between
the Fourth and Fifth Amendments, a view challenged by Professor
Wigmore.
See 8 Wigmore, Evidence (3rd ed. 1940), §
2264.
[
Footnote 5]
Nearly all the early Maryland statutes are contained in Records
of the States of the United States of America, a collection
compiled by the Library of Congress in association with the
University of North Carolina in 1949. This collection is on
microfilm. Many volumes of the early Maryland Session Laws are
available in various library collections throughout the country. No
complete collection is known to exist. A typical tobacco inspection
statute is Maryland Laws, November 1773, c. 1, §§ LXXIV, LXXX. At
times, a warrant was required for inspections of homes.
Id., § LXXIII.
See also Maryland Laws, 1717, c.
VII. Other Colonies also had statutes allowing inspection to
enforce standards for the manufacture or shipping of various items
of trade.
See, e.g., Virginia Laws, 15 Geo. II (1742), c.
IV (pork and beef); Virginia Laws, 12 Geo. III (1772), c. II (flour
and bread); Pennsylvania Laws, 1722, c. CCLII (flour and bread);
Pennsylvania Laws, 1727, c. CCXCV (beef and pork); Pennsylvania
Laws, 1729-1730, c. CCCXVI (hemp).
[
Footnote 6]
See, e.g., Maryland Laws, 1715, c. XLVI (tobacco);
Maryland Laws, May 1756, p. 5, § XLVI; Maryland Laws. March 1758,
p. 3, § X.
[
Footnote 7]
Ibid.
[
Footnote 8]
See Givner v. State, 210 Md. 484, 492-494, 124 A.2d
764, 768-769. The Maryland Court of Appeals has said that this
provision of its Declaration of Rights (originally Article 23, now
Article 26) is "
in pari materia" with the Fourth Amendment
to the United States Constitution.
Id. at 492.
[
Footnote 9]
Maryland Laws, Nov. 1782, c. XVII, § VII. A similar law had been
in force in Pennsylvania since 1761. Pennsylvania Laws, 1761-1762,
c. CCCCLXXX.
[
Footnote 10]
Maryland Laws, April 1787, c. XXIII.
See also
Pennsylvania Laws, 1782, c. MXXXI.
[
Footnote 11]
Maryland Laws, Nov. 1789, c. VIII, § 5.
See also
Maryland Laws, Nov. 1792, c. LXV, § VII; Maryland Laws, 1793, c.
LVI; Maryland Laws, 1784, c. VII.
[
Footnote 12]
Baltimore Ordinances, 1801-1802, No. 23, § 6. The Baltimore City
Health Department may be the oldest in the country.
See 35
Am.J. of Public Health (Jan. 1945) 49.
[
Footnote 13]
See Howard, Public Health Administration and the
Natural History of Disease in Baltimore, Maryland, 1797-1920 (1924)
140.
[
Footnote 14]
See id. at 145-146. For example, in 1880, there were
4,292 nuisances inspected by sanitary inspectors. In 1890, there
were 34,138 such inspections.
Ibid.
[
Footnote 15]
Compare Kotch v. Board of River Port Pilot Comm'rs,
330 U. S. 552,
and Ownbey v. Morgan, 256 U. S. 94,
with Brown v. Board of Education, 347 U.
S. 483.
[
Footnote 16]
The Baltimore Health Department keeps a record of the number of
inspections made annually. All but a few of these are inspections
of dwellings. The figures for the last five years are as follows:
1954, 28,081 inspections; 1955, 25,021 inspections; 1956, 35,120
inspections; 1957, 33,573 inspections; 1958, 36,119 inspections.
Memorandum of Appellee at Request of Court 2. The Health
Commissioner of Baltimore estimates that the number of prosecutions
under § 120 average one per year.
Of 57 cities whose health codes were studied by the Urban
Renewal Administration, 36 empowered their officers to enter and
inspect for violations.
See Provisions of Housing Codes in
Various American Cities, Urban Renewal Bulletin No. 3 (published by
Urban Renewal Administration of the Housing and Home Finance Agency
of 1956).
For a discussion of some of the problems of Urban Renewal,
see Note, 72 Harv.L.Rev. 504.
MR. JUSTICE WHITTAKER, concurring.
The core of the Fourth Amendment prohibiting unreasonable
searches applies to the States through the Due Process Clause of
the Fourteenth Amendment.
Wolf v. Colorado, 338 U. S.
25. I understand the Court's opinion to adhere fully to
that principle. And being convinced that the health inspector's
request for permission to enter petitioner's premises in midday for
the sole purpose of attempting to locate the habitat of
disease-carrying rodents known to be somewhere in the immediate
area was not a request for permission to make, and that the Code
procedures followed did not amount to enforcement
Page 359 U. S. 374
of, an unreasonable search within the meaning of the Fourth and
Fourteenth Amendments, I join the opinion of the Court.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE BRENNAN concur, dissenting.
The decision today greatly dilutes the right of privacy which
every homeowner had the right to believe was part of our American
heritage. We witness indeed an inquest over a substantial part of
the Fourth Amendment.
The question in this case is whether a search warrant is needed
to enter a citizen's home to investigate sanitary conditions. The
Court holds that no search warrant is needed, that a knock on the
door is all that is required, that, for failure of the citizen to
open the door, he can be punished. From these conclusions I am
forced to dissent.
The Due Process Clause of the Fourteenth Amendment enjoins upon
the States the guarantee of privacy embodied in the Fourth
Amendment (
Wolf v. Colorado, 338 U. S.
25) -- whatever may be the means established under the
Fourth Amendment to enforce that guarantee. The Court now casts a
shadow over that guarantee as respects searches and seizures in
civil cases. Any such conclusion would require considerable editing
and revision of the Fourth Amendment. For, by its terms, it
protects the citizen against unreasonable searches and seizures by
government, whatever may be the complaint. The words are broad and
inclusive:
"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. "
Page 359 U. S. 375
The Court said in
Wolf v. Colorado, supra, at
338 U. S. 27,
that "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." Now that resounding phrase is watered
down to embrace only certain invasions of one's privacy. If
officials come to inspect sanitary conditions, they may come
without a warrant and demand entry as of right. This is a strange
deletion to make from the Fourth Amendment. In some States, the
health inspectors are none other than the police themselves. In
some States, the presence of unsanitary conditions gives rise to
criminal prosecutions. Baltimore City Code, Art. 12, §§ 112 and 119
-- the one involved in the present case -- makes the failure to
abate a nuisance a misdemeanor. The knock on the door in any health
inspection case may thus lay the groundwork for a criminal
prosecution. The resistance of the citizen in the present case led
to the imposition of a fine. If a fine may be imposed, why not a
prison term?
It is said, however, that this fine is so small as to amount
only to an assessment to cover the costs of the inspection. Yet if
this fine can be imposed, the premises can be revisited without a
warrant and repeated fines imposed. The truth is that the amount of
the fine is not the measure of the right. The right is the
guarantee against invasion of the home by officers without a
warrant. No officer of government is authorized to penalize the
citizen because he invokes his constitutional protection.
Moreover, the protection of the Fourth Amendment has heretofore
been thought to protect privacy when civil litigation, as well as
criminal prosecutions, was in the offing. Why otherwise the great
care exercised by the Court in restricting agencies like the
Federal Trade Commission in making investigations in support of
their power to issue cease and desist orders? Fear of trespassing
on Fourth Amendment rights was expressly made the
Page 359 U. S. 376
ground for a narrow reading of statutory powers in
Federal
Trade Comm'n v. American Tobacco Co., 264 U.
S. 298,
264 U. S. 307.
The "fishing expeditions" there condemned,
id. at
264 U. S. 306,
led no more directly to possible criminal prosecutions than the
knock on the door in the present case.
The Court misreads history when it relates the Fourth Amendment
primarily to searches for evidence to be used in criminal
prosecutions. That certainly is not the teaching of
Entick v.
Carrington, 19 Howell's St.Tr. col. 1029. At that time -- 1765
-- it was the search for the nonconformist that led British
officials to ransack private homes. The commands of our First
Amendment (as well as the prohibitions of the Fourth and the Fifth)
reflect the teachings of
Entick v. Carrington, supra.
These three amendments are indeed closely related, safeguarding not
only privacy and protection against self-incrimination, but
"conscience and human dignity and freedom of expression as well."
See Ullmann v. United States, 350 U.
S. 422,
350 U. S. 445
et seq. (dissent);
Feldman v. United States,
322 U. S. 487,
322 U. S. 499.
It is only in that setting that
Entick v. Carrington,
supra, can be understood, as evidenced by Lord Camden's long
review of the oppressive practices directed at the press by the
Star Chamber, the Long Parliament, and the Licensing Acts. 19
Howell's St.Tr. cols. 1069-1072. It was in the setting of freedom
of expression that Lord Camden denounced the general warrants.
Taylor, The American Constitution (1911), p. 234, gives the correct
interpretation of that historical episode:
"In the effort to destroy the freedom of the press, by a
strained exercise of the prerogative, a general warrant was issued
in 1763 for the discovery and apprehension of the authors and
printers (not named) of the obnoxious No. 45 of the
North
Briton, which commented in severe and offensive terms on
the
Page 359 U. S. 377
King's Speech at the prorogation of Parliament and upon the
unpopular Peace of Paris recently (February 10, 1763) concluded.
Forty-nine persons, including Wilkes, were arrested under the
general warrant; and when it was ascertained that Wilkes was the
author, an information for libel was filed against him on which a
verdict was obtained. In suits afterward brought against the Under-
Secretary of State who had issued the general warrant, Wilkes, and
Dryden Leach, one of the printers arrested on suspicion, obtained
verdicts for damages. When the matter came before the King's Bench
in 1765, Lord Mansfield and the other three judges pronounced the
general warrant illegal, declaring that 'no degree of antiquity
could give sanction to a usage bad in itself.'"
And see 2 Paterson, Liberty of the Subject (1877), pp.
129-132.
This history, also recounted in
Boyd v. United States,
116 U. S. 616,
116 U. S.
625-626, was, in the words of Mr. Justice Bradley "fresh
in the memories of those who achieved our independence and
established our form of government." The Fourth Amendment thus has
a much wider frame of reference than mere criminal
prosecutions.
The fallacy in maintaining that the Fourth Amendment was
designed to protect criminals only was emphasized by Judge
Prettyman in
District of Columbia v. Little, 85
U.S.App.D.C. 242, 178 F.2d 13, 16-17,
affirmed on other
grounds, 339 U. S. 339 U.S.
1:
"The argument is wholly without merit, preposterous in fact. The
basic premise of the prohibition against searches was not
protection against self-incrimination; it was the common law right
of a man to privacy in his home, a right which is one of the
indispensable ultimate essentials of our concept of civilization.
It was firmly established in the common
Page 359 U. S. 378
law as one of the bright features of the Anglo-Saxon
contributions to human progress. It was not related to crime or to
suspicion of crime. It belonged to all men, not merely to
criminals, real or suspected. So much is clear from any examination
of history, whether slight or exhaustive. The argument made to us
has not the slightest basis in history. It has no greater
justification in reason. 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."
Judge Prettyman added that the Fourth Amendment applied alike to
health inspectors as well as to police officers -- indeed to every
and any official of government seeking admission to any home in the
country:
"We emphasize that, no matter who the officer is or what his
mission, a government official cannot invade a private home, unless
(1) a magistrate has authorized him to do so or (2) an immediate
major crisis in the performance of duty affords neither time nor
opportunity to apply to a magistrate. This right of privacy is not
conditioned upon the objective, the prerogative or the stature of
the intruding officer. His uniform, badge, rank, and the bureau
from which he operates are immaterial. It is immaterial whether he
is motivated by the highest public purpose or by the lowest
personal spite."
Id. at 17.
And see 44 Ill.L.Rev. 845.
The well known protest of the elder Pitt against invasion of the
home by the police had nothing to do with criminal proceedings.
"The poorest man may in his cottage bid defiance to all the
force of the Crown. It may be frail -- its roof
Page 359 U. S. 379
may shake -- the wind may blow through it -- the storm may
enter, the rain may enter -- but the King of England cannot enter
-- all his force dares not cross the threshold of the ruined
tenement!"
While this statement did not specifically refer to the general
warrant, it was said in reference to the danger of excise officers
entering private homes to levy the "Cyder Tax." 15 Hansard,
Parliamentary History of England (1753-1765) p. 1307.
Some of the statutes which James Otis denounced did not involve
criminal proceedings. They in the main regulated customs and
allowed forfeitures of goods shipped into the Colonies in violation
of English shipping regulations. [
Footnote 2/1] The twenty dollar forfeiture involved here
is no different in substance from the ones that Otis and the
colonists found so objectionable. For their objection went not to
the amount or size of the forfeiture, but to the lawless manner in
which it was collected. "Every man prompted by revenge, ill humour,
or wantonness to inspect the inside of his neighbor's house may get
a writ of assistance." Tudor, Life of James Otis (1823), p. 68. It
was not the search that was vicious. It was the absence of a
warrant issued on a showing of probable cause that Otis denounced
-- the precise situation we have here:
"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. Customhouse 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,
Page 359 U. S. 380
and whether they break through malice or revenge no man, no
court, can inquire. Bare suspicion without oath is sufficient."
Id. at 66-67.
The philosophy of the Fourth Amendment was well expressed by Mr.
Justice Butler speaking for the Court in
Agnello v. United
States, 269 U. S. 20,
269 U. S. 32.
"The search of a private dwelling without a warrant is in itself
unreasonable and abhorrent to our laws." We have emphasized over
and again that a search without a warrant can be made only in
exceptional circumstances. If a house is on fire or if the police
see a fugitive enter a building, entry without a search warrant
can, of course, be made. Yet, absent such extraordinary situations,
the right of privacy must yield only when a judicial officer issues
a warrant for a search on a showing of probable cause.
Johnson
v. United States, 333 U. S. 10,
333 U. S. 14;
Trupiano v. United States, 334 U.
S. 699,
334 U. S. 705;
McDonald v. United States, 335 U.
S. 451,
335 U. S.
454-455. As we said in
McDonald v. United States,
supra, 335 U. S.
455-456:
"The presence of a search warrant serves a high function. Absent
some grave emergency, the Fourth Amendment has interposed a
magistrate between the citizen and the police. This was done not to
shield criminals nor to make the home a safe haven for illegal
activities. It was done so that an objective mind might weigh the
need to invade that privacy in order to enforce the law. The right
of privacy was deemed too precious to entrust to the discretion of
those whose job is the detection of crime and the arrest of
criminals. Power is a heady thing, and history shows that the
police acting on their own cannot be trusted. And so the
Constitution requires a magistrate to pass on the desires of the
police before they violate the privacy of the home. We cannot be
true to that constitutional requirement and excuse
Page 359 U. S. 381
the absence of a search warrant without a showing by those who
seek exemption from the constitutional mandate that the exigencies
of the situation made that course imperative."
In the present case, the homeowner agreed to let the inspector
in, if he got a search warrant. But none was ever sought. No excuse
exists here for not getting a search warrant. A whole day elapsed
between the first inspection and the arrest. The only reason given
for not getting a warrant was the officer's convenience:
"Q. Could you not just as well have made your inspection one
hour or two hours later than at the time you demanded entry?"
"A. I could not. I had two students I had to release at three
o'clock. I have to be in the office at three-thirty every day to
take care of my reports."
That is indeed flimsy ground for denying this homeowner the
constitutional protection afforded by a search warrant.
We have as little reason for excluding this search from the
Fourth Amendment as we would for limiting that Amendment to the
kinds of warrants James Otis inveighed against -- the writs of
assistance and the general warrants.
Cf. On Lee v. United
States, 343 U. S. 747,
343 U. S. 762;
Schwartz v. Texas, 344 U. S. 199,
344 U. S. 205.
For as Chief Justice Vinson wrote in
Nueslein v. District of
Columbia, 73 App.D.C. 85, 87, 115 F.2d 690, 692, while the
Fourth Amendment "was written against the background of the general
warrants in England and the writs of assistance in the American
colonies," it "gives a protection wider than these abuses."
See 2 Ala.L.Rev. 314; 3 Vand.L.Rev. 820; 63 Harv.L.Rev.
349. It was designed to protect the citizen against uncontrolled
invasion of his privacy. It does not make the home a place of
refuge from the law. It only requires the sanction of the
judiciary, rather than
Page 359 U. S. 382
the executive before that privacy may be invaded. History shows
that all officers tend to be officious, and health inspectors,
making out a case for criminal prosecution of the citizen, are no
exception.
We live in an era "when politically controlled officials have
grown powerful through an ever increasing series of minor
infractions of civil liberties." 17 U. of Chi.L.Rev. 733, 740. One
invasion of privacy by an official of government can be as
oppressive as another. Health inspections are important. But they
are hardly more important than the search for narcotic peddlers,
rapists, kidnappers, murderers, and other criminal elements. As we
have seen, searches were once in their heyday when the government
was out to suppress the nonconformists. That is the true
explanation of
Entick v. Carrington, supra. Many today
would think that the search for subversives was even more important
than the search for unsanitary conditions. It would seem that the
public interest in protecting privacy is equally as great in one
case as in another. The fear that health inspections will suffer it
constitutional safeguards are applied is strongly held by some.
Like notions obtain by some law enforcement officials who take
shortcuts in pursuit of criminals. The same pattern appears over
and again whenever government seeks to use its compulsive force
against the citizen. Legislative Committees (
Watkins v. United
States, 354 U. S. 178;
Sweezy v. New Hampshire, 354 U. S. 234),
one-man grand juries (
In re Oliver, 333 U.
S. 257), fire marshals (
In re Groban,
352 U. S. 330,
352 U. S.
337), police (
Rochin v. California,
342 U. S. 165;
On Lee v. United States, supra, 343 U. S. 762;
Leyra v. Denno, 347 U. S. 556),
sometimes seek to place their requirements above the Constitution.
The official's measure of his own need often does not square with
the Bill of Rights.
Certainly this is a poor case for dispensing with the need for a
search warrant. Evidence to obtain one was
Page 359 U. S. 383
abundant. The house was in a state of extreme decay, and in the
rear of the house was a pile of "rodent feces mixed with straw and
debris to approximately half a ton." This is not to suggest that a
health official need show the same kind of proof to a magistrate to
obtain a warrant as one must who would search for the fruits or
instrumentalities of crime. Where considerations of health and
safety are involved, the facts that would justify an inference of
"probable cause" to make an inspection are clearly different from
those that would justify such an inference where a criminal
investigation has been undertaken. Experience may show the need for
periodic inspections of certain facilities without a further
showing of cause to believe that substandard conditions dangerous
to the public are being maintained. The passage of a certain period
without inspection might, of itself, be sufficient in a given
situation to justify the issuance of a warrant. The test of
"probable cause" required by the Fourth Amendment can take into
account the nature of the search that is being sought. This is not
to sanction synthetic search warrants, but to recognize that the
showing of probable cause in a health case may have quite different
requirements than the one required in graver situations. It can
hardly be denied, unless history is ignored, that the policeman's
or the inspector's knock on the door is one of these "official acts
and proceedings" which
Boyd v. United States, supra,
116 U. S. 624,
brought squarely within the Fourth Amendment. That being true, it
seems to us plain that there is nothing in the Fourth Amendment
that relieves the health inspector altogether from making an
appropriate showing to a magistrate if he would enter a private
dwelling without the owner's consent.
That problem, while important overall, is not important to the
situation with which we deal. Figures submitted by the Baltimore
Health Department show that citizens
Page 359 U. S. 384
are mostly cooperative in granting entrance to inspectors.
[
Footnote 2/2] There were 28,081
inspections in 1954; 25,021 in 1955; 35,120 in 1956; 33,573 in
1957; and 36,119 in 1958.
And, in all these instances, the
number of prosecutions was estimated to average one a year.
Submission by the overwhelming majority of the populace indicates
there is no peril to the health program. One rebel a year
(
cf. Whyte, The Organization Man) is not too great a price
to pay for maintaining our guarantee of civil rights in full
vigor.
England -- a nation no less mindful of public health than we and
keenly conscious of civil liberties -- has long proceeded on the
basis that, where the citizen denies entrance to a health
inspector, a search warrant is needed. Public Health Act of 1936,
26 Geo. 5 & 1 Edw. 8, c. 49, §§ 285-287;
Vines v.
Governors, 63 J.P. 244 (Q.B.1899);
Robinson v. Corporation
of Sutherland, [1899] 1 Q.B. 751;
Wimbledon Urban District
Counsel v. Hastings, 87 L.T.Rep. (5 N.S.) 118 (K.B.1902);
Consett Urban District Council v. Crawford, (1903) 2 K.B.
183; 24 Halsbury's Laws (2d ed. 1937), p. 102, note m.
We cannot do less and still be true to the command of the Fourth
Amendment, which protects even the lowliest home in the land from
intrusion on the mere say-so of an official.
[
Footnote 2/1]
6 Geo. 2, c. 13 (1733); 13 & 14 Car. 2, c. 11 (1662); 15
Car. 2, c. 7 (1663); 7 & 8 Will. 3, c. 22 (1696).
[
Footnote 2/2]
We are pointed to no body of judicial opinion which purports to
authorize entries into private dwellings without warrants in search
of unsanitary conditions. What is developed in the Court's opinion
concerning Maryland's longstanding health measures may be only a
history of acquiescence or a policy of enforcement which never
tested the procedure in a definitive and authoritative way. Plainly
we are not faced with a situation of constitutional adjudications
of long duration, where change is resisted because community
patterns have been built around them.