Police went to petitioner's home on January 28, 1964, to
question him about a murder. In the course of their inquiry, he
showed them three guns, and he agreed to take a lie detector test
on February 2. The test was inconclusive on the murder, but, during
its course, petitioner admitted a theft. In petitioner's absence,
two other policemen came to the house and questioned petitioner's
wife to check petitioner's story and corroborate his admission of
the theft. Unaware of the visit of the other officers who had been
shown the guns and knowing little about the murder weapon, the
police asked about any guns there might be in the house, and were
shown four by petitioner's wife which she offered to let them take.
After one policeman first declined the offer, they took the guns,
along with various articles of petitioner's clothing his wife made
available to them. On February 19, petitioner was arrested in his
house for the murder, and, on that date, a warrant to search
petitioner's automobile was applied for by the police chief and
issued by the Attorney General (who had assumed charge of the
investigation and was later the chief prosecutor at the trial),
acting as a justice of the peace. The car, which, at the time of
the arrest, was parked in petitioner's driveway, was subsequently
towed to the police station, where, on February 21 and on two
occasions the next year, it was searched. Vacuum sweepings from the
car as well as from the clothing were used as evidence at the
trial, along with one of the guns made available by petitioner's
wife. Following the overruling of pretrial motions to suppress that
evidence, petitioner was convicted, and the State Supreme Court
affirmed.
Held:
1. The warrant for the search and seizure of petitioner's
automobile did not satisfy the requirements of the Fourth
Amendment, as made applicable to the States by the Fourteenth,
because it was not issued by a "neutral and detached magistrate."
Johnson v. United States, 333 U. S.
10,
333 U. S. 14.
Pp. 449-453.
2. The basic constitutional rule is that
"searches conducted outside the judicial process, without prior
approval by judge or magistrate, are
per se unreasonable
under the Fourth Amendment -- subject only to a few specifically
established and well
Page 403 U. S. 444
defined exceptions,"
and, on the facts of this case, a warrantless search and seizure
of the car cannot be justified under those exceptions. Pp.
403 U. S.
453-482.
(a) The seizure of the car in the driveway cannot be justified
as incidental to the arrest, which took place inside the house.
Even assuming,
arguendo, that the police could properly
have made a warrantless search of the car in the driveway when they
arrested petitioner, they could not have done so at their leisure
after its removal. Pp.
403 U. S.
455-457.
(b) Under the circumstances present here -- where the police for
some time had known of the probable role of the car in the crime,
petitioner had had ample opportunity to destroy incriminating
evidence, the house was guarded at the time of arrest and
petitioner had no access to the car -- there were no exigent
circumstances justifying the warrantless search even had it been
made before the car was taken to the police station, and the
special exceptions for automobile searches in
Carroll v. United
States, 267 U. S. 132, and
Chambers v. Maroney, 399 U. S. 42, are
clearly inapplicable.
Cf. Dyke v. Taylor Implement Mfg.
Co., 391 U. S. 216. Pp.
403 U. S.
458-464.
(c) Under certain circumstances, the police may, without a
warrant seize, evidence in "plain view," though not for that reason
alone, and only when the discovery of the evidence is inadvertent.
That exception is inapplicable to the facts of the instant case,
where the police had ample opportunity to obtain a valid warrant,
knew in advance the car's description and location, intended to
seize it when they entered on petitioner's property, and no
contraband or dangerous objects were involved. Pp.
403 U. S.
464-473.
3. No search and seizure were implicated in the February 2 visit
when the police obtained the guns and clothing from petitioner's
wife, and hence they needed no warrant. The police, who exerted no
effort to coerce or dominate her, were not obligated to refuse her
offer for them to take the guns, and, in making these and the other
items available to the police, she was not acting as the instrument
or agent of the police. Pp.
403 U. S.
484-490.
109 N.H. 403, 260 A.2d 547, reversed and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J. (as to Part III), and HARLAN (as to Parts I, II-D, and
III), DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. HARLAN, J.,
filed a concurring opinion,
post, p.
403 U. S. 490.
BURGER, C.J., filed a concurring and dissenting opinion,
post, p.
403 U. S. 492.
BLACK, J., filed a concurring
Page 403 U. S. 445
and dissenting opinion, in a portion of Part I and in Parts II
and III of which BURGER, C.J., and BLACKMUN, J., joined,
post, p.
403 U. S. 493.
WHITE, J., filed a concurring and dissenting opinion, in which
BURGER, C.J., joined,
post, p.
403 U. S.
510.
MR. JUSTICE STEWART delivered the opinion of the Court.
*
We are called upon in this case to decide issues under the
Fourth and Fourteenth Amendments arising in the context of a state
criminal trial for the commission of a particularly brutal murder.
As in every case, our single duty is to determine the issues
presented in accord with the Constitution and the law.
Pamela Mason, a 14-year-old girl, left her home in Manchester,
New Hampshire, on the evening of January 13, 1964, during a heavy
snowstorm, apparently in response to a man's telephone call for a
babysitter. Eight days later, after a thaw, her body was found by
the side of a major north-south highway several miles away. She had
been murdered. The event created great alarm in the area, and the
police immediately began a massive investigation.
On January 28, having learned from a neighbor that the
petitioner, Edward Coolidge, had been away from home on the evening
of the girl's disappearance, the police went to his house to
question him. They asked
Page 403 U. S. 446
him, among other things, if he owned any guns, and he produced
three, two shotguns and a rifle. They also asked whether he would
take a lie detector test concerning his account of his activities
on the night of the disappearance. He agreed to do so on the
following Sunday, his day off. The police later described his
attitude on the occasion of this visit as fully "cooperative." His
wife was in the house throughout the interview.
On the following Sunday, a policeman called Coolidge early in
the morning and asked him to come down to the police station for
the trip to Concord, New Hampshire, where the lie detector test was
to be administered. That evening, two plainclothes policemen
arrived at the Coolidge house, where Mrs. Coolidge was waiting with
her mother-in-law for her husband's return. These two policemen
were not the two who had visited the house earlier in the week, and
they apparently did not know that Coolidge had displayed three guns
for inspection during the earlier visit. The plainclothesmen told
Mrs. Coolidge that her husband was in "serious trouble," and
probably would not be home that night. They asked Coolidge's mother
to leave, and proceeded to question Mrs. Coolidge. During the
course of the interview, they obtained from her four guns belonging
to Coolidge, and some clothes that Mrs. Coolidge thought her
husband might have been wearing on the evening of Pamela Mason's
disappearance.
Coolidge was held in jail on an unrelated charge that night, but
he was released the next day. [
Footnote 1] During the ensuing two and a half weeks, the
State accumulated a quantity of evidence to support the theory that
it was he who had killed Pamela Mason. On February 19, the results
of the investigation were presented at a meeting between the police
officers working on the case and the
Page 403 U. S. 447
State Attorney General, who had personally taken charge of all
police activities relating to the murder, and was later to serve as
chief prosecutor at the trial. At this meeting, it was decided that
there was enough evidence to justify the arrest of Coolidge on the
murder charge and a search of his house and two cars. At the
conclusion of the meeting, the Manchester police chief made formal
application, under oath, for the arrest and search warrants. The
complaint supporting the warrant for a search of Coolidge's Pontiac
automobile, the only warrant that concerns us here, stated that the
affiant
"has probable cause to suspect and believe, and does suspect and
believe, and herewith offers satisfactory evidence, that there are
certain objects and things used in the Commission of said offense,
now kept, and concealed in or upon a certain vehicle, to-wit: 1951
Pontiac two-door sedan. . . ."
The warrants were then signed and issued by the Attorney General
himself, acting as a justice of the peace. Under New Hampshire law
in force at that time, all justices of the peace were authorized to
issue search warrants. N.H.Rev.Stat.Ann. § 595:1 (repealed
1969).
The police arrested Coolidge in his house on the day the warrant
issued. Mrs. Coolidge asked whether she might remain in the house
with her small child, but was told that she must stay elsewhere,
apparently in part because the police believed that she would be
harassed by reporters if she were accessible to them. When she
asked whether she might take her car, she was told that both cars
had been "impounded," and that the police would provide
transportation for her. Some time later, the police called a towing
company, and, about two and a half hours after Coolidge had been
taken into custody, the cars were towed to the police station. It
appears that, at the time of the arrest, the cars were parked in
the Coolidge driveway, and that, although dark had fallen,
Page 403 U. S. 448
they were plainly visible both from the street and from inside
the house where Coolidge was actually arrested. The 1951 Pontiac
was searched and vacuumed on February 21, two days after it was
seized, again a year later, in January, 1965, and a third time in
April, 1965.
At Coolidge's subsequent jury trial on the charge of murder,
vacuum sweepings, including particles of gun powder, taken from the
Pontiac were introduced in evidence against him, as part of an
attempt by the State to show by microscopic analysis that it was
highly probable that Pamela Mason had been in Coolidge's car.
[
Footnote 2] Also introduced in
evidence was one of the guns taken by the police on their Sunday
evening visit to the Coolidge house -- a .22-caliber Mossberg
rifle, which the prosecution claimed was the murder weapon.
Conflicting ballistics testimony was offered on the question
whether the bullets found in Pamela Mason's body had been fired
from this rifle. Finally, the prosecution introduced vacuum
sweepings of the clothes taken from the Coolidge house that same
Sunday evening, and attempted to show through microscopic analysis
that there was a high probability that the clothes had been in
contact with Pamela Mason's body. Pretrial motions to suppress all
this evidence were referred by the trial judge to the New Hampshire
Supreme Court, which ruled the evidence admissible. 106 N.H. 186,
208 A.2d 322. The jury found Coolidge guilty, and he was sentenced
to life imprisonment. The New Hampshire Supreme Court affirmed the
judgment of conviction, 109 N.H. 403, 260 A.2d 547, and we granted
certiorari to consider the constitutional questions raised by the
admission of this evidence against Coolidge at his trial. 399 U.S.
926.
Page 403 U. S. 449
I
The petitioner's first claim is that the warrant authorizing the
seizure and subsequent search of his 1951 Pontiac automobile was
invalid because not issued by a "neutral and detached magistrate."
Since we agree with the petitioner that the warrant was invalid for
this reason, we need not consider his further argument that the
allegations under oath supporting the issuance of the warrant were
so conclusory as to violate relevant constitutional standards.
Cf. Giordenello v. United States, 357 U.
S. 480;
Aguilar v. Texas, 378 U.
S. 108. The classic statement of the policy underlying
the warrant requirement of the Fourth Amendment is that of Mr.
Justice Jackson, writing for the Court in
Johnson v. United
States, 333 U. S. 10,
333 U. S.
13-14:
"The point of the Fourth Amendment, which often is not grasped
by zealous officers, is not that it denies law enforcement the
support of the usual inferences which reasonable men draw from
evidence. Its protection consists in requiring that those
inferences be drawn by a neutral and detached magistrate, instead
of being judged by the officer engaged in the often competitive
enterprise of ferreting out crime. Any assumption that evidence
sufficient to support a magistrate's disinterested determination to
issue a search warrant will justify the officers in making a search
without a warrant would reduce the Amendment to a nullity, and
leave the people's homes secure only in the discretion of police
officers. . . . When the right of privacy must reasonably yield to
the right of search is, as a rule, to be decided by a judicial
officer, not by a policeman or government enforcement agent."
Cf. United States v. Lefkowitz, 285 U.
S. 452,
285 U. S. 464;
Giordenello v. United States, supra, at
357 U. S. 486.
Wong Sun
v.
Page 403 U. S. 450
United States, 371 U. S. 471,
371 U. S.
481-482;
Katz v. United States, 389 U.
S. 347,
389 U. S.
356-357.
In this case, the determination of probable cause was made by
the chief "government enforcement agent" of the State the Attorney
General -- who was actively in charge of the investigation and
later was to be chief prosecutor at the trial. To be sure, the
determination was formalized here by a writing bearing the title
"Search Warrant," whereas, in
Johnson, there was no piece
of paper involved, but the State has not attempted to uphold the
warrant on any such artificial basis. Rather, the State argues that
the Attorney General, who was unquestionably authorized as a
justice of the peace to issue warrants under then-existing state
law, did, in fact, act as a "neutral and detached magistrate."
Further, the State claims that any magistrate, confronted with the
showing of probable cause made by the Manchester chief of police,
would have issued the warrant in question. To the first
proposition, it is enough to answer that there could hardly be a
more appropriate setting than this for a
per se rule of
disqualification, rather than a case-by-case evaluation of all the
circumstances. Without disrespect to the state law enforcement
agent here involved, the whole point of the basic rule so well
expressed by Mr. Justice Jackson is that prosecutors and policemen
simply cannot be asked to maintain the requisite neutrality with
regard to their own investigations -- the "competitive enterprise"
that must rightly engage their single-minded attention. [
Footnote 3]
Cf. Mancusi v.
DeForte, 392 U. S. 364,
392 U. S. 371.
As for the proposition that the existence of probable cause renders
noncompliance with the warrant procedure an irrelevance,
Page 403 U. S. 451
it is enough to cite
Agnello v. United States,
269 U. S. 20,
269 U. S. 33,
decided in 1925:
"Belief, however well founded, that an article sought is
concealed in a dwelling house furnishes no justification for a
search of that place without a warrant. And such searches are held
unlawful notwithstanding facts unquestionably showing probable
cause."
See also Jones v. United States, 357 U.
S. 493,
357 U. S.
497-498;
Silverthorne Lumber Co. v. United
States, 251 U. S. 385,
251 U. S. 392.
("[T]he rights . . . against unlawful search and seizure are to be
protected even if the same result might have been achieved in a
lawful way.")
But the New Hampshire Supreme Court, in upholding the
conviction, relied upon the theory that, even if the warrant
procedure here in issue would clearly violate the standards imposed
on the Federal Government by the Fourth Amendment, it is not
forbidden the States under the Fourteenth. This position was
premised on a passage from the opinion of this Court in
Ker v.
California, 374 U. S. 23,
374 U. S.
31:
"Preliminary to our examination of the search and seizures
involved here, it might be helpful for us to indicate what was not
decided in
Mapp \[v. Ohio,
367 U. S.
643]. First, it must be recognized that the"
"principles governing the admissibility of evidence in federal
criminal trials have not been restricted . . . to those derived
solely from the Constitution. In the exercise of its supervisory
authority over the administration of criminal justice in the
federal courts . . . , this Court has . . . formulated rules of
evidence to be applied in federal criminal prosecutions."
"
McNabb v. United States, 318 U. S.
332,
318 U. S. 341. . . .
Mapp, however, established no assumption by this Court of
supervisory authority over state courts . . . , and, consequently,
it implied no total
Page 403 U. S. 452
obliteration of state laws relating to arrests and searches in
favor of federal law.
Mapp sounded no death knell for our
federalism; rather, it echoed the sentiment of
Elkins v. United
States, supra, at
364 U. S. 221, that 'a
healthy federalism depends upon the avoidance of needless conflict
between state and federal courts' by itself urging that"
"[f]ederal-state cooperation in the solution of crime under
constitutional standards will be promoted, if only by recognition
of their now mutual obligation to respect the same fundamental
criteria in their approaches."
"367 U.S. at
367 U. S. 658."
(Emphasis in
Ker.) It is urged that the New Hampshire
statutes which, at the time of the searches here involved,
permitted a law enforcement officer himself to issue a warrant was
one of those
"workable rules governing arrests, searches and seizures to meet
'the practical demands of effective criminal investigation and law
enforcement' in the States,"
id. at
374 U. S. 34,
authorized by
Ker.
That such a procedure was indeed workable from the point of view
of the police is evident from testimony at the trial in this
case:
"The Court: You mean that another police officer issues these
[search warrants]?"
"The Witness: Yes. Captain Courture and Captain Shea and Captain
Loveren are J.P.'s."
"The Court: Well, let me ask you, Chief, your answer is to the
effect that you never go out of the department for the Justice of
the Peace?"
"The Witness: It hasn't been our -- policy to go out of the
department."
"Q. Right. Your policy and experience is to have a fellow police
officer take the warrant in the capacity of Justice of the
Peace?"
"A. That has been our practice. "
Page 403 U. S. 453
But it is too plain for extensive discussion that this now
abandoned New Hampshire method of issuing "search warrants"
violated a fundamental premise of both the Fourth and Fourteenth
Amendments -- a premise fully developed and articulated long before
this Court's decisions in
Ker v. California, supra, and
Mapp v. Ohio, 367 U. S. 643. As
Mr. Justice Frankfurter put it in
Wolf v. Colorado,
338 U. S. 25,
338 U. S.
27-28:
"The security of one's privacy against arbitrary intrusion by
the police -- which is at the core of the Fourth Amendment -- is
basic to a free society. It is therefore implicit in 'the concept
of ordered liberty,' and, as such, enforceable against the States
through the Due Process Clause. The knock at the door, whether by
day or by night, as a prelude to a search, without authority of law
but solely on the authority of the police, did not need the
commentary of recent history to be condemned. . . ."
We find no escape from the conclusion that the seizure and
search of the Pontiac automobile cannot constitutionally rest upon
the warrant issued by the state official who was the chief
investigator and prosecutor in this case. Since he was not the
neutral and detached magistrate required by the Constitution, the
search stands on no firmer ground than if there had been no warrant
at all. If the seizure and search are to be justified, they must,
therefore, be justified on some other theory.
II
The State proposes three distinct theories to bring the facts of
this case within one or another of the exceptions to the warrant
requirement. In considering them, we must not lose sight of the
Fourth Amendment's fundamental guarantee. Mr. Justice Bradley's
admonition in his opinion for the Court almost a century ago in
Boyd
Page 403 U. S. 454
v. United States, 116 U. S. 616,
116 U. S. 635,
is worth repeating here:
"It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of procedure.
This can only be obviated by adhering to the rule that
constitutional provisions for the security of person and property
should be liberally construed. A close and literal construction
deprives them of half their efficacy, and leads to gradual
depreciation of the right, as if it consisted more in sound than in
substance. It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy
encroachments thereon. [
Footnote
4]"
Thus, the most basic constitutional rule in this area is
that
"searches conducted outside the judicial process, without prior
approval by judge or magistrate, are
per se
Page 403 U. S. 455
unreasonable under the Fourth Amendment -- subject only to a few
specifically established and well delineated exceptions. [
Footnote 5]"
The exceptions are "jealously and carefully drawn," [
Footnote 6] and there must be "a
showing by those who seek exemption . . . that the exigencies of
the situation made that course imperative." [
Footnote 7] "[T]he burden is on those seeking the
exemption to show the need for it." [
Footnote 8] In times of unrest, whether caused by crime or
racial conflict or fear of internal subversion, this basic law and
the values that it represents may appear unrealistic or
"extravagant" to some. But the values were those of the authors of
our fundamental constitutional concepts. In times not altogether
unlike our own they won -- by legal and constitutional means in
England, [
Footnote 9] and by
revolution on this continent -- a right of personal security
against arbitrary intrusions by official power. If times have
changed, reducing everyman's scope to do as he pleases in an urban
and industrial world, the changes have made the values served by
the Fourth Amendment more, not less, important. [
Footnote 10]
A
The State's first theory is that the seizure on February 19 and
subsequent search of Coolidge's Pontiac were "incident" to a valid
arrest. We assume that the arrest of Coolidge inside his house was
valid, so that the first condition of a warrantless "search
incident" is met.
Whiteley v. Warden, 401 U.
S. 560,
401 U. S. 567
n. 11. And since the events in issue took place in 1964, we assess
the State's argument
Page 403 U. S. 456
in terms of the law as it existed before
Chimel v.
California, 395 U. S. 752,
which substantially restricted the "search incident" exception to
the warrant requirement, but did so only prospectively.
Williams v. United States, 401 U.
S. 646. But even under pre
Chimel law, the
State's position is untenable.
The leading case in the area before
Chimel was
United States v. Rabinowitz, 339 U. S.
56, which was taken to stand
"for the proposition,
inter alia, that a warrantless
search 'incident to a lawful arrest' may generally extend to the
area that is considered to be in the 'possession' or under the
'control' of the person arrested."
Chimel, supra, at
395 U. S. 760.
In this case, Coolidge was arrested inside his house; his car was
outside in the driveway. The care was not touched until Coolidge
had been removed from the scene. It was then seized and taken to
the station, but it was not actually searched until two days
later.
First, it is doubtful whether the police could have carried out
a contemporaneous search of the car under
Rabinowitz
standards. For this Court has repeatedly held that, even under
Rabinowitz,
"[a] search may be incident to an arrest "
only if it is
substantially contemporaneous with the arrest and is confined to
the immediate vicinity of the arrest. . . .'""
Vale v. Louisiana, 399 U. S. 30,
399 U. S. 33,
quoting from
Shipley v. California, 395 U.
S. 818,
395 U. S. 819,
quoting from
Stoner v. California, 376 U.
S. 483,
376 U. S. 486.
(Emphasis in
Shipley.)
Cf. Agnello v. United
States, 269 U.S. at
269 U. S. 30-31;
James v. Louisiana, 382 U. S. 36. These
cases make it clear beyond any question that a lawful
pre-
Chimel arrest of a suspect outside his house could
never, by itself, justify a warrantless search inside the house.
There is nothing in search-incident doctrine (as opposed to the
special rules for automobiles and evidence in "plain view," to be
considered below) that suggests
Page 403 U. S. 457
a different result where the arrest is made inside the house and
the search outside and at some distance away. [
Footnote 11]
Even assuming,
arguendo, that the police might have
searched the Pontiac in the driveway when they arrested Coolidge in
the house,
Preston v. United States, 376 U.
S. 364, makes plain that they could not legally seize
the car, remove it, and search it at their leisure without a
warrant. In circumstances virtually identical to those here, MR.
JUSTICE BLACK's opinion for a unanimous Court held that,
"[o]nce an accused is under arrest and in custody, then a search
[of his car] made at another place, without a warrant, is simply
not incident to the arrest."
Id. at
376 U. S. 367.
Dyke v. Taylor Implement Mfg. Co., 391 U.
S. 216.
Cf. Chambers v. Maroney, 399 U. S.
42,
399 U. S. 47.
Search-incident doctrine, in short, has no applicability to this
case. [
Footnote 12]
Page 403 U. S. 458
B
The second theory put forward by the State to justify a
warrantless seizure and search of the Pontiac car is that, under
Carroll v. United States, 267 U.
S. 132, the police may make a warrantless search of an
automobile whenever they have probable cause to do so, and, under
our decision last Term in
Chambers v. Maroney,
399 U. S. 42,
whenever the police may make a legal contemporaneous search under
Carroll, they may also seize the car, take it to the
police station, and search it there. But even granting that the
police had probable cause to search the car, the application of the
Carroll case to these facts would extend it far beyond its
original rationale.
Carroll did indeed hold that "contraband goods
concealed and illegally transported in an automobile or other
vehicle may be searched for without a warrant," [
Footnote 13] provided that
"the seizing officer shall have reasonable or probable cause for
believing that the automobile which he stops and seizes has
contraband liquor therein which is being illegally transported.
[
Footnote 14]"
Such searches had been explicitly authorized by Congress, and,
as we have pointed out elsewhere, [
Footnote 15] in the conditions of the time,
"[a]n automobile . . . was an almost indispensable
instrumentality in large-scale violation of the National
Prohibition Act, and the car itself therefore was treated somewhat
as an offender, and became contraband."
In two later cases, [
Footnote
16] each involving an occupied automobile stopped on the open
highway and searched for contraband
Page 403 U. S. 459
liquor, the Court followed and reaffirmed
Carroll.
[
Footnote 17] And last Term,
in
Chambers, supra, we did so again.
The underlying rationale of
Carroll and of all the
cases that have followed it is that there is
"a necessary difference between a search of a store, dwelling
house or other structure in respect of which a proper official
warrant readily may be obtained, and a search of a ship, motor
boat, wagon or automobile,
Page 403 U. S. 460
for contraband goods, where 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.
(Emphasis supplied.) As we said in
Chambers, supra, at
399 U. S. 51,
"exigent circumstances" justify the warrantless search of "an
automobile
stopped on the highway," where there is
probable cause, because the car is "movable, the occupants are
alerted, and the car's contents may never be found again if a
warrant must be obtained." "[T]he opportunity to search is
fleeting. . . ." (Emphasis supplied.)
In this case, the police had known for some time of the probable
role of the Pontiac car in the crime. Coolidge was aware that he
was a suspect in the Mason murder, but he had been extremely
cooperative throughout the investigation, and there was no
indication that he meant to flee. He had already had ample
opportunity to destroy any evidence he thought incriminating. There
is no suggestion that, on the night in question, the car was being
used for any illegal purpose, and it was regularly parked in the
driveway of his house. The opportunity for search was thus hardly
"fleeting." The objects that the police are assumed to have had
probable cause to search for in the car were neither stolen nor
contraband nor dangerous.
When the police arrived at the Coolidge house to arrest him, two
officers were sent to guard the back door while the main party
approached from the front. Coolidge was arrested inside the house,
without resistance of any kind on his part, after he had
voluntarily admitted the officers at both front and back doors.
There was no way in which he could conceivably have gained access
to the automobile after the police arrived on his property. When
Coolidge had been taken away, the police informed Mrs. Coolidge,
the only other adult occupant of the
Page 403 U. S. 461
house, that she and her baby had to spend the night elsewhere,
and that she could not use either of the Coolidge cars. Two police
officers then drove her in police car to the house of a relative in
another town, and they stayed with her there until around midnight,
long after the police had had the Pontiac towed to the station
house. The Coolidge premises were guarded throughout the night by
two policemen. [
Footnote
18]
The word "automobile" is not a talisman in whose presence the
Fourth Amendment fade away and disappears.
Page 403 U. S. 462
And surely there is nothing in this case to invoke the meaning
and purpose of the rule of
Carroll v. United States -- no
alerted criminal be on flight, no fleeting opportunity on an open
highway after a hazardous chase, no contraband or stolen goods or
weapons, no confederates waiting to move the evidence, not even the
inconvenience of a special police detail to guard the immobilized
automobile. In short, by no possible stretch of the legal
imagination can this be made into a case where "it is not
practicable to secure a warrant,"
Carroll, supra, at
267 U. S. 153,
and the "automobile exception," despite its label, is simply
irrelevant. [
Footnote
19]
Page 403 U. S. 463
Since
Carroll would not have justified a warrantless
search of the Pontiac at the time Coolidge was arrested, the later
search at the station house was plainly illegal, at least so far as
the automobile exception is concerned.
Chambers, supra, is
of no help to the State, since that case held only that, where the
police may stop and search an automobile under
Carroll,
they may also seize it and search it later at the police station.
[
Footnote 20] Rather, this
case is controlled by
Dyke v. Taylor Implement Mfg. Co.,
supra. There, the police lacked probable cause to seize or
search the defendant's automobile at the time of his
Page 403 U. S. 464
arrest, and this was enough, by itself, to condemn the
subsequent search at the station house. Here there was probable
cause, but no exigent circumstances justified the police in
proceeding without a warrant. As in
Dyke, the later search
at the station house was therefore illegal. [
Footnote 21]
C
The State's third theory in support of the warrantless seizure
and search of the Pontiac car is that the car itself was an
"instrumentality of the crime," and, as such, might be seized by
the police on Coolidge's property because it was in plain view.
Supposing the seizure to be thus lawful, the case of
Cooper v.
California, 386 U. S. 58, is
said to support a subsequent warrantless search at the station
house, with or without probable cause. Of course, the distinction
between an "instrumentality of crime" and "mere evidence" was done
away with by
Warden v. Hayden, 387 U.
S. 294, and we may assume that the police had probable
cause to seize the automobile. [
Footnote 22] But, for the reasons that follow, we hold
that the "plain view" exception to the warrant requirement is
inapplicable to this case. Since the seizure was therefore
Page 403 U. S. 465
illegal, it is unnecessary to consider the applicability Of
Cooper, supra, to the subsequent search. [
Footnote 23]
It is well established that, under certain circumstances, the
police may seize evidence in plain view without a warrant. But it
is important to keep in mind that, in the vast majority of cases,
any evidence seized by the police will be in plain view, at least
at the moment of seizure. The problem with the "plain view"
doctrine has been to identify the circumstances in which plain view
has legal significance, rather than being simply the normal
concomitant of any search, legal or illegal.
An example of the applicability of the "plain view" doctrine is
the situation in which the police have a warrant to search a given
area for specified objects, and, in the course of the search, come
across some other article of incriminating character.
Cf.
Go-Bart Importing Co. v. United States, 282 U.
S. 344,
282 U. S. 358;
United States v. Lefkowitz, 285 U.
S. 452,
285 U. S. 465;
Steele v. United States, 267 U. S. 498;
Stanley v. Georgia, 394 U. S. 557,
394 U. S. 571
(STEWART, J., concurring in result). Where the initial intrusion
that brings the police within plain view of such an article is
supported not by a warrant, but by one of the recognized exceptions
to the warrant requirement, the seizure is also legitimate. Thus,
the police may inadvertently come across evidence while in "hot
pursuit" of a fleeing suspect.
Warden v. Hayden, supra; cf.
Hester v. United States, 265 U. S. 57. And
an object that comes into view during a search incident to arrest
that is appropriately limited in scope under existing law may be
seized without a warrant. [
Footnote 24]
Chimel v. California, 395
Page 403 U. S. 466
U.S. at
395 U. S.
762-763. Finally, the "plain view" doctrine has been
applied where a police officer is not searching for evidence
against the accused, but nonetheless inadvertently comes across an
incriminating object.
Harris v. United States,
390 U. S. 234;
Frazier v. Cupp, 394 U. S. 731;
Ker v. California, 374 U.S. at
374 U. S. 43.
Cf. Lewis v. United States, 385 U.
S. 206.
What the "plain view" cases have in common is that the police
officer in each of them had a prior justification for an intrusion
in the course of which he came inadvertently across a piece of
evidence incriminating the accused. The doctrine serves to
supplement the prior justification -- whether it be a warrant for
another object, hot pursuit, search incident to lawful arrest, or
some other legitimate reason for being present unconnected with a
search directed against the accused -- and permits the warrantless
seizure. Of course, the extension of the original justification is
legitimate only where it is immediately apparent to the police that
they have evidence before them; the "plain view" doctrine may not
be used to extend a general exploratory search from one object to
another until something incriminating at last emerges.
Page 403 U. S. 467
Cf. Stanley v. Georgia, supra, at
394 U. S.
571-572 (STEWART, J., concurring in result).
The rationale for the "plain view" exception is evident if we
keep in mind the two distinct constitutional protections served by
the warrant requirement. First, the magistrate's scrutiny is
intended to eliminate altogether searches not based on probable
cause. The premise here is that any intrusion in the way of search
or seizure is an evil, so that no intrusion at all is justified
without a careful prior determination of necessity.
See, e.g.,
McDonald v. United States, 335 U. S. 451;
Warden v. Hayden, 387 U. S. 294;
Katz v. United States, 389 U. S. 347;
Chimel v. California, 395 U.S. at
395 U. S.
761-762. The second, distinct objective is that those
searches deemed necessary should be as limited as possible. Here,
the specific evil is the "general warrant" abhorred by the
colonists, and the problem is not that of intrusion
per
se, but of a general, exploratory rummaging in a person's
belongings.
See, e.g., Boyd v. United States, 116 U.S. at
116 U. S.
624-630;
Marron v. United States, 275 U.
S. 192,
275 U. S.
195-196;
Stanford v. Texas, 379 U.
S. 476. The warrant accomplishes this second objective
by requiring a "particular description" of the things to be
seized.
The "plain view" doctrine is not in conflict with the first
objective, because plain view does not occur until a search is in
progress. In each case, this initial intrusion is justified by a
warrant or by an exception such as "hot pursuit" or search incident
to a lawful arrest, or by an extraneous valid reason for the
officer's presence. And, given the initial intrusion, the seizure
of an object in plain view is consistent with the second objective,
since it does not convert the search into a general or exploratory
one. As against the minor peril to Fourth Amendment protections,
there is a major gain in effective law enforcement. Where, once an
otherwise lawful search is in progress, the police inadvertently
come upon
Page 403 U. S. 468
a piece of evidence, it would often be a needless inconvenience,
and sometimes dangerous -- to the evidence or to the police
themselves -- to require them to ignore it until they have obtained
a warrant particularly describing it.
The limits on the doctrine are implicit in the statement of its
rationale. The first of these is that plain view, alone, is never
enough to justify the warrantless seizure of evidence. This is
simply a corollary of the familiar principle discussed above, that
no amount of probable cause can justify a warrantless search or
seizure absent "exigent circumstances." Incontrovertible testimony
of the senses that an incriminating object is on premises belonging
to a criminal suspect may establish the fullest possible measure of
probable cause. But even where the object is contraband, this Court
has repeatedly stated and enforced the basic rule that the police
may not enter and make a warrantless seizure.
Taylor v. United
States, 286 U. S. 1;
Johnson v. United States, 333 U. S.
10;
McDonald v. United States, 335 U.
S. 451;
Jones v. United States, 357 U.
S. 493,
357 U. S.
497-498;
Chapman v. United States, 365 U.
S. 610;
Trupiano v. United States, 334 U.
S. 699. [
Footnote
25]
Page 403 U. S. 469
The second limitation is that the discovery of evidence in plain
view must be inadvertent. [
Footnote 26] The rationale of the exception to the
warrant requirement, as just stated,
Page 403 U. S. 470
is that a plain view seizure will not turn an initially valid
(and therefore limited) search into a "general" one, while the
inconvenience of procuring a warrant to cover an inadvertent
discovery is great. But where the discovery is anticipated, where
the police know in advance the location of the evidence and intend
to seize it, the situation is altogether different. The requirement
of a warrant to seize imposes no inconvenience whatever, or at
least none which is constitutionally cognizable in a legal system
that regards warrantless searches as "
per se
Page 403 U. S. 471
unreasonable" in the absence of "exigent circumstances." If the
initial intrusion is bottomed upon a warrant that fails to mention
a particular object, though the police know its location and intend
to seize it, then there is a violation of the express
constitutional requirement of "Warrants . . . particularly
describing . . . [the] things to be seized." The initial intrusion
may, of course, be legitimated not by a warrant, but by one of the
exceptions to the warrant requirement, such as hot pursuit or
search incident to lawful arrest. But to extend the scope of such
an intrusion to the seizure of objects -- not contraband nor stolen
nor dangerous in themselves -- which the police know in advance
they will find in plain view and intend to seize would fly in the
face of the basic rule that no amount of probable cause can justify
a warrantless seizure. [
Footnote
27]
Page 403 U. S. 472
In the light of what has been said, it is apparent that the
"plain view" exception cannot justify the police seizure of the
Pontiac car in this case. The police had ample opportunity to
obtain a valid warrant; they knew the automobile's exact
description and location well in advance; they intended to seize it
when they came upon Coolidge's property. And this is not a case
involving contraband or stolen goods or objects dangerous in
themselves. [
Footnote
28]
Page 403 U. S. 473
The seizure was therefore unconstitutional, and so was the
subsequent search at the station house. Since evidence obtained in
the course of the search was admitted at Coolidge's trial, the
judgment must be reversed, and the case remanded to the New
Hampshire Supreme Court.
Mapp v. Ohio, 367 U.
S. 643.
D
In his dissenting opinion today, MR. JUSTICE WHITE marshals the
arguments that can be made against our interpretation of the
"automobile" and "plain view" exceptions to the warrant
requirement. Beyond the
Page 403 U. S. 474
unstartling proposition that, when a line is drawn, there is
often not a great deal of difference between the situations closest
to it on either side, there is a single theme that runs through
what he has to say about the two exceptions. Since that theme is a
recurring one in controversies over the proper meaning and scope of
the Fourth Amendment, it seems appropriate to treat his views in
this separate section, rather than piecemeal.
Much the most important part of the conflict that has been so
notable in this Court's attempts over a hundred years to develop a
coherent body of Fourth Amendment law has been caused by
disagreement over the importance of requiring law enforcement
officers to secure warrants. Some have argued that a determination
by a magistrate of probable cause as a precondition of any search
or seizure is so essential that the Fourth Amendment is violated
whenever the police might reasonably have obtained a warrant but
failed to do so. Others have argued with equal force that a test of
reasonableness, applied after the fact of search or seizure when
the police attempt to introduce the fruits in evidence, affords
ample safeguard for the rights in question, so that "[t]he relevant
test is not whether it is reasonable to procure a search warrant,
but whether the search was reasonable." [
Footnote 29]
Both sides to the controversy appear to recognize a distinction
between searches and seizures that take place on a man's property
-- his home or office -- and those carried out elsewhere. It is
accepted, at least as a matter of principle, that a search or
seizure carried out on a suspect's premises without a warrant is
per se unreasonable, unless the police can show that it
falls within one of a carefully defined set of exceptions based on
the
Page 403 U. S. 475
presence of "exigent circumstances." [
Footnote 30] As to other kinds of intrusions, however,
there has been disagreement about the basic rules to be applied, as
our cases concerning automobile searches, electronic surveillance,
street searches and administrative searches make clear. [
Footnote 31]
With respect to searches and seizures carried out on a suspect's
premises, the conflict has been over the question of what qualifies
as an "exigent circumstance." It might appear that the difficult
inquiry would be when it is that the police can enter upon a
person's property to seize his "person . . . papers, and effects,"
without prior judicial approval. The question of the scope of
search and seizure once the police are on the premises would appear
to be subsidiary to the basic issue of when intrusion is
permissible. But the law has not developed in this fashion.
The most common situation in which Fourth Amendment issues have
arisen has been that in which the police enter the suspect's
premises, arrest him, and then carry out a warrantless search and
seizure of evidence. Where there is a warrant for the suspect's
arrest, the evidence seized may later be challenged, either on the
ground that the warrant was improperly issued because there was not
probable cause, [
Footnote
32] or on the ground that the police search and seizure went
beyond that which they could carry out as an incident to the
execution of the arrest warrant. [
Footnote 33] Where the police act without an
Page 403 U. S. 476
arrest warrant, the suspect may argue that an arrest warrant was
necessary, that there was no probable cause to arrest, [
Footnote 34] or that, even if the
arrest was valid, the search and seizure went beyond permissible
limits. [
Footnote 35]
Perhaps because each of these lines of attack offers a plethora of
litigable issues, the more fundamental question of when the police
may arrest a man in his house without a warrant has been little
considered in the federal courts. This Court has chosen on a number
of occasions to assume the validity of an arrest and decide the
case before it on the issue of the scope of permissible warrantless
search.
E.g., Chimel v. California, supra. The more common
inquiry has therefore been:
"Assuming a valid police entry for purposes of arrest, what
searches and seizures may the police carry out without prior
authorization by a magistrate?"
Two very broad, and sharply contrasting answers to this question
have been assayed by this Court in the past. The answer of
Trupiano v. United States, supra, was that no searches and
seizures could be legitimated by the mere fact of valid entry for
purposes of arrest so long as there was no showing of special
difficulties in obtaining a warrant for search and seizure. The
contrasting answer in
Harris v. United States,
331 U. S. 145, and
United States v. Rabinowitz, supra, was that a valid entry
for purposes of arrest served to legitimate warrantless searches
and seizures throughout the premises where the arrest occurred,
however spacious those premises might be.
The approach taken in
Harris and
Rabinowitz
was open to the criticism that it made it so easy for the police to
arrange to search a man's premises without a warrant
Page 403 U. S. 477
that the Constitution's protection of a man's "effects" became a
dead letter. The approach taken in
Trupiano, on the other
hand, was open to the criticism that it was absurd to permit the
police to make an entry in the dead of night for purposes of
seizing the "person" by main force, and then refuse them permission
to seize objects lying around in plain sight. It is arguable that,
if the very substantial intrusion implied in the entry and arrest
are "reasonable" in Fourth Amendment terms, then the less intrusive
search incident to arrest must also be reasonable.
This argument against the
Trupiano approach is of
little force so long as it is assumed that the police must, in the
absence of one of a number of defined exceptions based on "exigent
circumstances," obtain an arrest warrant before entering a man's
house to seize his person. If the Fourth Amendment requires a
warrant to enter and seize the person, then it makes sense as well
to require a warrant to seize other items that may be on the
premises. The situation is different, however, if the police are
under no circumstances required to obtain an arrest warrant before
entering to arrest a person they have probable cause to believe has
committed a felony. If no warrant is ever required to legitimate
the extremely serious intrusion of a midnight entry to seize the
person, then it can be argued plausibly that a warrant should never
be required to legitimate a very sweeping search incident to such
an entry and arrest. If the arrest without a warrant is
per
se reasonable under the Fourth Amendment, then it is difficult
to perceive why a search incident in the style of
Harris
and
Rabinowitz is not
per se reasonable as
well.
It is clear, then, that the notion that the warrantless entry of
a man's house in order to arrest him on probable cause is
per
se legitimate is in fundamental conflict with the basic
principle of Fourth Amendment law that
Page 403 U. S. 478
searches and seizures inside a man's house without warrant are
per se unreasonable in the absence of some one of a number
of well defined "exigent circumstances." This conflict came to the
fore in
Chimel v. California, supra. The Court there
applied the basic rule that the "search incident to arrest" is an
exception to the warrant requirement, and that its scope must
therefore be strictly defined in terms of the justifying "exigent
circumstances." The exigency in question arises from the dangers of
harm to the arresting officer and of destruction of evidence within
the reach of the arrestee. Neither exigency can conceivably justify
the far-ranging searches authorized under
Harris and
Rabinowitz. The answer of the dissenting opinion of MR.
JUSTICE WHITE in
Chimel, supported by no decision of this
Court, was that a warrantless entry for the purpose of arrest on
probable cause is legitimate and reasonable no matter what the
circumstances. 395 U.S. at
395 U. S. 776-780. From this it was said to follow that
the full-scale search incident to arrest was also reasonable, since
it was a lesser intrusion. 395 U.S. at
395 U. S.
772-775.
The same conflict arises in this case. Since the police knew of
the presence of the automobile, and planned all along to seize it,
there was no "exigent circumstance" to justify their failure to
obtain a warrant. The application of the basic rule of Fourth
Amendment law therefore requires that the fruits of the warrantless
seizure be suppressed. MR. JUSTICE WHITE's dissenting opinion,
however, argues once again that, so long as the police could
reasonably make a warrantless nighttime entry onto Coolidge's
property in order to arrest him, with no showing at all of an
emergency, then it is absurd to prevent them from seizing his
automobile as evidence of the crime.
MR. JUSTICE WHITE takes a basically similar approach to the
question whether the search of the automobile in
Page 403 U. S. 479
this case can be justified under
Carroll v. United States,
supra, and
Chambers v. Maroney, supra.
Carroll, on its face, appears to be a classic example of
the doctrine that warrantless searches are
per se
unreasonable in the absence of exigent circumstances. Every word in
the opinion indicates the Court's adherence to the underlying rule
and its care in delineating a limited exception. Read thus, the
case quite evidently does not extend to the situation at bar. Yet,
if we take the viewpoint of a judge called on only to decide in the
abstract, after the fact, whether the police have behaved
"reasonably" under all the circumstances -- in short, if we simply
ignore the warrant requirement --
Carroll comes to stand
for something more. The stopping of a vehicle on the open highway
and a subsequent search amount to a major interference in the lives
of the occupants.
Carroll held such an interference to be
reasonable without a warrant, given probable cause. It may be
thought to follow
a fortiori that the seizure and search
here -- where there was no stopping and the vehicle was unoccupied
-- were also reasonable, since the intrusion was less substantial,
although there were no exigent circumstances whatever. Using
reasoning of this sort, it is but a short step to the position that
it is never necessary for the police to obtain a warrant before
searching and seizing an automobile, provided that they have
probable cause. And MR. JUSTICE WHITE appears to adopt exactly this
view when he proposes that the Court should "treat searches of
automobiles as we do the arrest of a person."
If we were to accept MR. JUSTICE WHITE's view that warrantless
entry for purposes of arrest and warrantless seizure and search of
automobiles are
per se reasonable so long as the police
have probable cause, it would be difficult to see the basis for
distinguishing searches of houses and seizures of effects. If it is
reasonable for the police to make a warrantless nighttime entry for
the purpose
Page 403 U. S. 480
of arresting a person in his bed, then surely it must be
reasonable as well to make a warrantless entry to search for and
seize vital evidence of a serious crime. If the police may, without
a warrant, seize and search an unoccupied vehicle parked on the
owner's private property, not being used for any illegal purpose,
then it is hard to see why they need a warrant to seize and search
a suitcase, a trunk, a shopping bag, or any other portable
container in a house, garage, or backyard.
The fundamental objection, then, to the line of argument adopted
by MR. JUSTICE WHITE in his dissent in this case and in
Chimel
v. California, supra, is that it proves too much. If we were
to agree with MR. JUSTICE WHITE that the police may, whenever they
have probable cause, make a warrantless entry for the purpose of
making an arrest, and that seizures and searches of automobiles are
likewise
per se reasonable, given probable cause, then by
the same logic any search or seizure could be carried out without a
warrant, and we would simply have read the Fourth Amendment out of
the Constitution. Indeed, if MR. JUSTICE WHITE is correct that it
has generally been assumed that the Fourth Amendment is not
violated by the warrantless entry of a man's house for purposes of
arrest, it might be wise to reexamine the assumption. Such a
reexamination
"would confront us with a grave constitutional question, namely,
whether the forceful nighttime entry into a dwelling to arrest a
person reasonably believed within, upon probable cause that he had
committed a felony, under circumstances where no reason appears why
an arrest warrant could not have been sought, is consistent with
the Fourth Amendment."
Jones v. United States, 357 U.S. at
357 U. S.
499-500.
None of the cases cited by MR. JUSTICE WHITE disposes of this
"grave constitutional question." The case of
Warden v. Hayden,
supra, where the Court elaborated
Page 403 U. S. 481
a "hot pursuit" justification for the police entry into the
defendant's house without a warrant for his arrest, certainly
stands by negative implication for the proposition that an arrest
warrant is required in the absence of exigent circumstances.
See also Davis v. Mississippi, 394 U.
S. 721,
394 U. S. 728;
Wong Sun v. United States, 371 U.S. at
371 U. S.
481-482. The Court of Appeals for the District of
Columbia Circuit, sitting en banc, has unanimously reached the same
conclusion. [
Footnote 36]
But we find it unnecessary to decide the question in this case. The
rule that
"searches conducted outside the judicial process, without prior
approval by judge or magistrate, are
per se unreasonable
under the Fourth Amendment -- subject only to a few specifically
established and well delineated exceptions, [
Footnote 37]"
is not so frail that its continuing vitality depends on the fate
of a supposed doctrine of warrantless arrest. The warrant
requirement has been a valued part of our constitutional law for
decades, and it has determined the result in scores and scores of
cases in courts all over this country. It is not an inconvenience
to be somehow "weighed" against the claims of police efficiency. It
is, or should be, an important working part of our machinery of
government, operating as a matter of course to check the
"well-intentioned but mistakenly over-zealous executive officers"
[
Footnote 38] who are a part
of any system of law enforcement. If it is to be a true guide to
constitutional police action, rather than just a pious phrase, then
"[t]he exceptions cannot be enthroned into the rule."
United
States v. Rabinowitz, supra, at
339 U. S. 80
(Frankfurter, J., dissenting). The confinement of the exceptions to
their appropriate scope was the function of
Chimel v.
California, supra, where we dealt with the
Page 403 U. S. 482
assumption that a search "incident" to a lawful arrest may
encompass all of the premises where the arrest occurs, however
spacious. The "plain view" exception is intimately linked with the
search-incident exception, as the cases discussed in
403 U.
S. To permit warrantless plain view seizures without
limit would be to undo much of what was decided in
Chimel,
as the similar arguments put forward in dissent in the two cases
indicate clearly enough.
Finally, a word about
Trupiano v. United States, supra.
Our discussion of "plain view" in
403 U. S.
above, corresponds with that given in
Trupiano. Here, as
in
Trupiano, the determining factors are advance police
knowledge of the existence and location of the evidence, police
intention to seize it, and the ample opportunity for obtaining a
warrant.
See 334 U.S. at
334 U. S.
707-708 and n. 27,
supra. However, we do not
"reinstate"
Trupiano, since we cannot adopt all its
implications. To begin with, in
Chimel v. California,
supra, we held that a search of the person of an arrestee and
of the area under his immediate control could be carried out
without a warrant. We did not indicate there, and do not suggest
here, that the police must obtain a warrant if they anticipate that
they will find specific evidence during the course of such a
search.
See n 24,
supra. And as to the automobile exception, we do not
question the decisions of the Court in
Cooper v.
California, 386 U. S. 58, and
Chambers v. Maroney, supra, although both are arguably
inconsistent with
Trupiano.
MR. JUSTICE WHITE s dissent characterizes the coexistence of
Chimel, Cooper, Chambers, and this case as "punitive,"
"extravagant," "inconsistent," "without apparent reason,"
"unexplained," and "inexplicable."
Post at
403 U. S. 517,
403 U. S. 519,
403 U. S. 521.
It is urged upon us that we have here a
"ready opportunity, one way or another,
Page 403 U. S. 483
to bring clarity and certainty to a body of law that lower
courts and law enforcement officials often find confusing."
Post at
403 U. S. 521.
Presumably one of the ways in which MR. JUSTICE WHITE believes we
might achieve clarity and certainty would be the adoption of his
proposal that we treat entry for purposes of arrest and seizure of
an automobile alike as
per se reasonable on probable
cause. Such an approach might dispose of this case clearly and
certainly enough, but, as we have tried to show above, it would
cast into limbo the whole notion of a Fourth Amendment warrant
requirement. And it is difficult to take seriously MR. JUSTICE
WHITE's alternative suggestion that clarity and certainty, as well
as coherence and credibility, might also be achieved by modifying
Chimel and overruling
Chambers and
Cooper. Surely, quite apart from his strong disagreement
on the merits, he would take vehement exception to any such
cavalier treatment of this Court's decisions.
Of course, it would be nonsense to pretend that our decision
today reduces Fourth Amendment law to complete order and harmony.
The decisions of the Court over the years point in differing
directions and differ in emphasis. No trick of logic will make them
all perfectly consistent. But it is no less nonsense to suggest, as
does MR. JUSTICE WHITE,
post at
403 U. S. 521,
403 U. S. 520,
that we cease today "to strive for clarity and consistency of
analysis," or that we have "abandoned any attempt" to find reasoned
distinctions in this area. The time is long past when men believed
that development of the law must always proceed by the smooth
incorporation of new situations into a single coherent analytical
framework. We need accept neither the "clarity and certainty" of a
Fourth Amendment without a warrant requirement nor the facile
consistency obtained by wholesale overruling of recently decided
cases. A remark by
Page 403 U. S. 484
MR. JUSTICE HARLAN concerning the Fifth Amendment is applicable
as well to the Fourth:
"There are those, I suppose, who would put the 'liberal
construction' approach of cases like
Miranda \[v.
Arizona, 384 U. S. 436,] and
Boyd v.
United States, 116 U. S. 616 (1886),
side-by-side with the balancing approach of
Schmerber \[v.
California, 384 U. S. 757,] and perceive
nothing more subtle than a set of constructional antinomies to be
utilized as convenient bootstraps to one result or another. But I
perceive in these cases the essential tension that springs from the
uncertain mandate which this provision of the Constitution gives to
this Court."
California v. Byers, 402 U. S. 424,
402 U. S.
449-450 (concurring in judgment). We are convinced that
the result reached in this case is correct, and that the principle
it reflects -- that the police must obtain a warrant when they
intend to seize an object outside the scope of a valid search
incident to arrest -- can be easily understood and applied by
courts and law enforcement officers alike. It is a principle that
should work to protect the citizen without overburdening the
police, and a principle that preserves and protects the guarantees
of the Fourth Amendment.
III
Because of the prospect of a new trial, the efficient
administration of justice counsels consideration of the second
substantial question under the Fourth and Fourteenth Amendments
presented by this case. The petitioner contends that, when the
police obtained a rifle and articles of his clothing from his home
on the night of Sunday, February 2, 1964, while he was being
interrogated at the police station, they engaged in a search and
seizure violative of the Constitution. In order to
Page 403 U. S. 485
understand this contention, it is necessary to review in some
detail the circumstances of the February 2 episode.
A
The lie detector test administered to Coolidge in Concord on the
afternoon of the 2d was inconclusive as to his activities on the
night of Pamela Mason's disappearance, but, during the course of
the test, Coolidge confessed to stealing $375 from his employer.
After the group returned from Concord to Manchester, the
interrogation about Coolidge's movements on the night of the
disappearance continued, and Coolidge apparently made a number of
statements which the police immediately checked out as best they
could. The decision to send two officers to the Coolidge house to
speak with Mrs. Coolidge was apparently motivated in part by a
desire to check his story against whatever she might say, and in
part by the need for some corroboration of his admission to the
theft from his employer. The trial judge found as a fact, and the
record supports him, that, at the time of the visit, the police
knew very little about the weapon that had killed Pamela Mason. The
bullet that had been retrieved was of small caliber, but the police
were unsure whether the weapon was a rifle or a pistol. During the
extensive investigation following the discovery of the body, the
police had made it a practice to ask all those questioned whether
they owned any guns, and to ask the owners for permission to run
tests on those that met the very general description of the murder
weapon. The trial judge found as a fact that, when the police
visited Mrs. Coolidge on the night of the 2d, they were unaware of
the previous visit during which Coolidge had shown other officers
three guns, and that they were not motivated by a desire to find
the murder weapon.
Page 403 U. S. 486
The two plainclothesmen asked Mrs. Coolidge whether her husband
had been at home on the night of the murder victim's disappearance,
and she replied that he had not. They then asked her if her husband
owned any guns. According to her testimony at the pretrial
suppression hearing, she replied, "Yes, I will get them in the
bedroom." One of the officers replied, "We will come with you." The
three went into the bedroom, where Mrs. Coolidge took all four guns
out of the closet. Her account continued:
"A. I believe I asked if they wanted the guns. One gentleman
said, 'No;' then the other gentleman turned around and said, 'We
might as well take them.' I said, 'If you would like them, you may
take them.'"
"Q. Did you go further and say, 'We have nothing to hide.?'"
"A. I can't recall if I said that then or before. I don't
recall."
"Q. But, at some time, you indicated to them that, as far as you
were concerned, you had nothing to hide, and they might take what
they wanted?"
"A. That was it."
"
* * * *"
"Q. Did you feel at that time that you had something to
hide?"
"A. No."
The two policemen also asked Mrs. Coolidge what her husband had
been wearing on the night of the disappearance. She then produced
four pairs of trousers, and indicated that her husband had probably
worn either of two of them on that evening. She also brought out a
hunting jacket. The police gave her a receipt for the guns and the
clothing, and, after a search of the Coolidge cars not here in
issue, took the various articles to the police station.
Page 403 U. S. 487
B
The first branch of the petitioner's argument is that, when Mrs.
Coolidge brought out the guns and clothing and then handed them
over to the police, she was acting as an "instrument" of the
officials, complying with a "demand" made by them. Consequently, it
is argued, Coolidge was the victim of a search and seizure within
the constitutional meaning of those terms. Since we cannot accept
this interpretation of the facts, we need not consider the
petitioner's further argument that Mrs. Coolidge could not or did
not "waive" her husband's constitutional protection against
unreasonable searches and seizures.
Had Mrs. Coolidge, wholly on her own initiative, sought out her
husband's guns and clothing and then taken them to the police
station to be used as evidence against him, there can be no doubt
under existing law that the articles would later have been
admissible in evidence.
Cf. Burdeau v. McDowell,
256 U. S. 465. The
question presented here is whether the conduct of the police
officers at the Coolidge house was such as to make her actions
their actions for purposes of the Fourth and Fourteenth Amendments
and their attendant exclusionary rules. The test, as the
petitioner's argument suggests, is whether Mrs. Coolidge, in light
of all the circumstances of the case, must be regarded as having
acted as an "instrument" or agent of the state when she produced
her husband's belongings.
Cf. United States v. Goldberg,
330 F.2d 30 (CA3),
cert. denied, 377 U.S. 953 (1964);
People v. Tarantino, 45 Cal. 2d
590, 290 P.2d 505 (1955);
see Byars v. United States,
273 U. S. 28;
Gambino v. United States, 275 U.
S. 310.
In a situation like the one before us, there no doubt always
exist forces pushing the spouse to cooperate with
Page 403 U. S. 488
the police. Among these are the simple, but often powerful,
convention of openness and honesty, the fear that secretive
behavior will intensify suspicion, and uncertainty as to what
course is most likely to be helpful to the absent spouse. But there
is nothing constitutionally suspect in the existence, without more,
of these incentives to full disclosure or active cooperation with
the police. The exclusionary rules were fashioned "to prevent, not
to repair," and their target is official misconduct. They are "to
compel respect for the constitutional guaranty in the only
effectively available way -- by removing the incentive to disregard
it."
Elkins v. United States, 364 U.
S. 206,
364 U. S. 217.
But it is no part of the policy underlying the Fourth and
Fourteenth Amendments to discourage citizens from aiding to the
utmost of their ability in the apprehension of criminals. If, then,
the exclusionary rule is properly applicable to the evidence taken
from the Coolidge house on the night of February 2, it must be upon
the basis that some type of unconstitutional police conduct
occurred.
Yet it cannot be said that the police should have obtained a
warrant for the guns and clothing before they set out to visit Mrs.
Coolidge, since they had no intention of rummaging around among
Coolidge's effects or of dispossessing him of any of his property.
Nor can it be said that they should have obtained Coolidge's
permission for a seizure they did not intend to make. There was
nothing to compel them to announce to the suspect that they
intended to question his wife about his movements on the night of
the disappearance or about the theft from his employer. Once Mrs.
Coolidge had admitted them, the policemen were surely acting
normally and properly when they asked her, as they had asked those
questioned earlier in the investigation, including Coolidge
himself, about any guns there might be in the house. The
question
Page 403 U. S. 489
concerning the clothes Coolidge had been wearing on the night of
the disappearance was logical, and in no way coercive. Indeed, one
might doubt the competence of the officers involved had they not
asked exactly the questions they did ask. And surely, when Mrs.
Coolidge, of her own accord, produced the guns and clothes for
inspection, rather than simply describing them, it was not
incumbent on the police to stop her or avert their eyes.
The crux of the petitioner's argument must be that, when Mrs.
Coolidge asked the policemen whether they wanted the guns, they
should have replied that they could not take them, or have first
telephoned Coolidge at the police station and asked his permission
to take them, or have asked her whether she had been authorized by
her husband to release them. Instead, after one policeman had
declined the offer, the other turned and said, "We might as well
take them," to which Mrs. Coolidge replied, "If you would like
them, you may take them."
In assessing the claim that this course of conduct amounted to a
search and seizure, it is well to keep in mind that Mrs. Coolidge
described her own motive as that of clearing her husband, and that
she believed that she had nothing to hide. She had seen her husband
himself produce his guns for two other policemen earlier in the
week, and there is nothing to indicate that she realized that he
had offered only three of them for inspection on that occasion. The
two officers who questioned her behaved, as her own testimony
shows, with perfect courtesy. There is not the slightest
implication of an attempt on their part to coerce or dominate her,
or, for that matter, to direct her actions by the more subtle
techniques of suggestion that are available to officials in
circumstances like these. To hold that the conduct of the police
here was a search and seizure would be to hold, in effect, that a
criminal suspect has constitutional protection against
Page 403 U. S. 490
the adverse consequences of a spontaneous, good faith effort by
his wife to clear him of suspicion. [
Footnote 39]
The judgment is reversed, and the case is remanded to the
Supreme Court of New Hampshire for further proceedings not
inconsistent with this opinion.
It is so ordered.
* Parts II-A, II-B, and II-C of this opinion are joined only by
MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE
MARSHALL.
[
Footnote 1]
During the lie detector test, Coolidge had confessed to a theft
of money from his employer.
See 403 U.
S. infra.
[
Footnote 2]
For a very strong argument that this evidence should have been
excluded because altogether lacking in probative value,
see Tribe, Trial by Mathematics: Precision and Ritual in
the Legal Process, 84 Harv.L.Rev. 1329, 1342 n. 40 (1971).
[
Footnote 3]
After hearing the Attorney General's testimony on the issuance
of the warrants, the trial judge said:
"I found that an impartial Magistrate would have done the same
as you did. I don't think, in all sincerity, that I would expect
that you could wear two pairs of shoes."
[
Footnote 4]
See also Gouled v. United States, 255 U.
S. 298,
255 U. S.
303-304 (1921):
"It would not be possible to add to the emphasis with which the
framers of our Constitution and this court . . . 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 Fourth and Fifth]. The
effect of the decisions cited is: that such rights are declared to
be indispensable to the 'full enjoyment of personal security,
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 over-zealous executive
officers."
See also Go-Bart Importing Co. v. United States,
282 U. S. 344,
282 U. S.
357.
[
Footnote 5]
Katz v. United States, 389 U.
S. 347,
389 U. S.
357.
[
Footnote 6]
Jones v. United States, 357 U.
S. 493,
357 U. S.
499.
[
Footnote 7]
McDonald v. United States, 335 U.
S. 451,
335 U. S.
456.
[
Footnote 8]
United States v. Jeffers, 342 U. S.
48,
342 U. S.
51.
[
Footnote 9]
See Entick v. Carrington, 19 How.St.Tr. 1029, 95
Eng.Rep. 807 (1765), and
Wilkes v. Wood, 19 How.St.Tr.
1153, 98 Eng.Rep. 489 (1763).
[
Footnote 10]
See Elkins v. United States, 364 U.
S. 206.
[
Footnote 11]
The suggestion in Part III-A of the concurring and dissenting
opinion of MR. JUSTICE BLACK that this represents the formulation
of "a
per se rule reaching far beyond"
Chimel v.
California, 395 U. S. 752,
post at
403 U. S. 503,
is mistaken. The question discussed here is whether, under
pre-
Chimel law, the police could, contemporaneously with
the arrest of Coolidge inside his house, make a search of his car
for evidence --
i.e., the particles later introduced at
his trial. There can be no question that, after
Chimel,
such a search could not be justified as "incident" to the arrest,
since
Chimel held that a search so justified can extend
only to the
"arrestee's person and the area 'within his immediate control'
-- construing that phrase to mean the area from within which he
might gain possession of a weapon or destructible evidence."
395 U.S. at
395 U. S. 763.
The quite distinct question whether the police were entitled to
seize the automobile as evidence in plain view is discussed in
403 U. S.
Cf. n 24,
infra.
[
Footnote 12]
Cooper v. California, 386 U. S. 58, is
not in point, since there, the State did not rely on the theory of
a search incident to arrest, but sought to justify the search on
other grounds.
Id. at
386 U. S. 60.
MR. JUSTICE BLACK's opinion for the Court in
Cooper
reaffirmed
Preston v. United States, 376 U.
S. 364.
[
Footnote 13]
267 U.S. at
267 U. S.
153.
[
Footnote 14]
Id. at
267 U. S.
156.
[
Footnote 15]
United States v. Di Re, 332 U.
S. 581,
332 U. S.
586.
[
Footnote 16]
Husty v. United States, 282 U.
S. 694;
Brinegar v. United States, 338 U.
S. 160.
[
Footnote 17]
A third case that has sometimes been cited as an application of
Carroll v. United States, 267 U.
S. 132, is
Scher v. United States, 305 U.
S. 251. There, the police were following an automobile
that they had probable cause to believe contained a large quantity
of contraband liquor. The facts were as follows:
The driver
"turned into a garage a few feet back of his residence and
within the curtilage. One of the pursuing officers left their car
and followed. As petitioner was getting out of his car, this
officer approached, announced his official character, and stated he
was informed that the car was hauling bootleg liquor. Petitioner
replied, 'just a little for a party.' Asked whether the liquor was
tax-paid, he replied that it was Canadian whiskey; also, he said it
was in the trunk at the rear of the car. T he officer opened the
trunk and found. . . ."
305 U.S. at
305 U. S.
253.
The Court held:
"Considering the doctrine of
Carroll v. United States,
267 U. S.
132 . . . and the application of this to the facts there
disclosed, it seems plain enough that, just before he entered the
garage, the following officers properly could have stopped
petitioner's car, made search, and put him under arrest. So much
was not seriously controverted at the argument."
"Passage of the car into the open garage closely followed by the
observing officer did not destroy this right. No search was made of
the garage. Examination of the automobile accompanied an arrest,
without objection and upon admission of probable guilt. The
officers did nothing either unreasonable or oppressive.
Agnello
v. United States, 269 U. S. 20,
269 U. S.
30;
Wisniewski v. United States, 47 F.2d 825,
826 [CA6 1931]."
305 U.S. at
305 U. S.
254-255. Both
Agnello, at the page cited, and
Wisniewski dealt with the admissibility of evidence seized
during a
search incident to a lawful arrest.
[
Footnote 18]
It is frequently said that occupied automobiles stopped on the
open highway may be searched without a warrant because they are
"mobile," or "movable." No other basis appears for MR. JUSTICE
WHITE's suggestion in his dissenting opinion that we should "treat
searches of automobiles as we do the arrest of a person."
Post at
403 U. S. 527.
In this case, it is, of course, true that, even though Coolidge was
in jail, his wife was miles away in the company of two
plainclothesmen, and the Coolidge property was under the guard of
two other officers, the automobile was in a literal sense "mobile."
A person who had the keys and could slip by the guard could drive
it away. We attach no constitutional significance to this sort of
mobility.
First, a good number of the containers that the police might
discover on a person's property and want to search are equally
movable,
e.g., trunks, suitcases, boxes, briefcases, and
bags. How are such objects to be distinguished from an unoccupied
automobile -- not then being used for any illegal purpose sitting
on the owner's property? It is true that the automobile has wheels
and its own locomotive power. But, given the virtually universal
availability of automobiles in our society, there is little
difference between driving the container itself away and driving it
away in a vehicle brought to the scene for that purpose. Of course,
if there is a criminal suspect close enough to the automobile so
that he might get a weapon from it or destroy evidence within it,
the police may make a search of appropriately limited scope.
Chimel v. California, 395 U. S. 752.
See 403 U. S.
supra. But if
Carroll v. United States,
267 U. S. 132,
permits a warrantless search of an unoccupied vehicle, on private
property and beyond the scope of a valid search incident to an
arrest, then it would permit as well a warrantless search of a
suitcase or a box. We have found no case that suggests such an
extension of
Carroll. See nn.
16 17 supra.
[
Footnote 19]
Cf. United States v. Payne, 429 F.2d 169 (CA9 1970). In
that case, two couples were camping in an individually allotted
campsite in Yosemite National Park. During the evening, an off-duty
policeman, camping with his family in an adjoining site, observed
the two couples smoking a substance he believed to be marihuana,
and also observed them making what he thought "furtive" movements
to remove objects he thought to be drugs from the glove compartment
of a car parked nearby. He summoned a park ranger, and the two
entered the campsite. They found that one of the couples was
preparing to bed down for the night, while the couple to whom the
car belonged were visiting in another campsite. The officers
searched the unoccupied parked automobile, found 12 Seconal
capsules, and arrested the couple who had stayed behind. The
Government attempted to uphold the search under
Carroll,
supra, and
Brinegar, supra. The Court of Appeals
answered:
"While it is true that the Supreme Court has enunciated slightly
different rules concerning a search of an automobile without a
warrant, the rationale is apparently based upon the fact that a
'vehicle can be quickly moved out of the locality or jurisdiction
in which the warrant must be sought.'
Chimel v.
California, 395 U. S. 752,
395 U. S.
764. . . . In the instant case, the search of the
Volkswagen cannot be justified upon this reasoning. There is no
indication in the record that the appellant or any of his party
were preparing to leave, and, quite to the contrary, it is clear
that appellant was bedding down for the evening, and that there was
ample time to secure the necessary warrant for the search of the
car had [the Park Ranger] believed there was probable cause to seek
one."
429 F.2d at 171-172.
[
Footnote 20]
Part
403 U. S.
JUSTICE BLACK argues with vehemence that this case must somehow be
controlled by
Chambers v. Maroney, 399 U. S.
42, yet the precise applicability of
Chambers
is never made clear. On its face,
Chambers purports to
deal only with situations in which the police may legitimately make
a warrantless search under
Carroll v. United States,
267 U. S. 132.
Since the
Carroll rule does not apply in the circumstances
of this case, the police could not have searched the car without a
warrant when they arrested Coolidge. Thus, MR. JUSTICE BLACK's
argument must be that
Chambers somehow operated
sub
silentio to extend the basic doctrine of
Carroll. It
is true that the actual search of the automobile in
Chambers was made at the police station many hours after
the car had been stopped on the highway, when the car was no longer
movable, any "exigent circumstances" had passed, and, for all the
record shows, there was a magistrate easily available. Nonetheless,
the analogy to this case is misleading. The rationale of
Chambers is that, given a justified initial intrusion,
there is little difference between a search on the open highway and
a later search at the station. Here, we deal with the prior
question of whether the initial intrusion is justified. For this
purpose, it seems abundantly clear that there is a significant
constitutional difference between stopping, seizing, and searching
a car on the open highway and entering private property to seize
and search an unoccupied, parked vehicle not then being used for
any illegal purpose. That the police may have been legally on the
property in order to arrest Coolidge is, of course, immaterial,
since, as shown in
403 U. S.
supra, that purpose could not authorize search of the car
even under
United States v. Rabinowitz, 339 U. S.
56.
[
Footnote 21]
Cooper v. California, 386 U. S. 58, is no
more in point here than in the context of a search incident to a
lawful arrest.
See n 12,
supra. In
Cooper, the seizure of
the petitioner's car was mandated by California statute, and its
legality was not questioned. The case stands for the proposition
that, given an unquestionably legal seizure, there are special
circumstances that may validate a subsequent warrantless search.
Cf. Chambers, supra. The case certainly should not be read
as holding that the police can do without a warrant at the police
station what they are forbidden to do without a warrant at the
place of seizure.
[
Footnote 22]
Coolidge had admitted that, on the night of Pamela Mason's
disappearance, he had stopped his Pontiac on the side of the
highway opposite the place where the body was found. He claimed the
car was stuck in the snow. Two witnesses, who had stopped and asked
him if he needed help, testified that his car was not stuck.
[
Footnote 23]
See nn.
12 and |
12 and S. 443fn21|>21,
supra.
[
Footnote 24]
The "plain view" exception to the warrant requirement is not in
conflict with the law of search incident to a valid arrest
expressed in
Chimel v. California, 395 U.
S. 752. The Court there held that
"[t]here is ample justification . . . for a search of the
arrestee's person and the area 'within his immediate control' --
construing that phrase to mean the area from within which he might
gain possession of a weapon or destructible evidence."
Id. at
395 U. S. 763.
The "plain view" doctrine would normally justify as well the
seizure of other evidence that came to light during such an
appropriately limited search. The Court in
Chimel went on
to hold that
"[t]here is no comparable justification, however, for routinely
searching any room other than that in which an arrest occurs -- or,
for that matter, for searching through all the desk drawers or
other closed or concealed areas in that room itself. Such searches,
in the absence of well recognized exceptions, may be made only
under the authority of a search warrant."
Ibid. Where, however, the arresting officer
inadvertently comes within plain view of a piece of evidence, not
concealed, although outside of the area under the immediate control
of the arrestee, the officer may seize it, so long as the plain
view was obtained in the course of an appropriately limited search
of the arrestee.
[
Footnote 25]
Trupiano v. United States, supra, applied the principle
in circumstances somewhat similar to those here. Federal law
enforcement officers had infiltrated an agent into a group engaged
in manufacturing illegal liquor. The agent had given them the
fullest possible description of the layout and equipment of the
illegal distillery. Although they had ample opportunity to do so,
the investigators failed to procure search or arrest warrants.
Instead, they staged a warrantless nighttime raid on the premises.
After entering the property, one of the officers looked through the
doorway of a shed, and saw one of the criminals standing beside an
illegal distillery. The officer entered, made a legal arrest, and
seized the still. This Court held it inadmissible at trial,
rejecting the Government's argument based on
"the long line of cases recognizing that an arresting officer
may look around at the time of the arrest and seize those fruits
and evidences of crime or those contraband articles which are in
plain sight and in his immediate and discernible presence."
334 U.S. at
334 U. S. 704.
The Court reasoned that there was no excuse whatever for the
failure of the agents to obtain a warrant before entering the
property, and that the mere fact that a suspect was arrested in the
proximity of the still provided no "exigent circumstance" to
validate a warrantless seizure. The scope of the intrusion
permitted to make the valid arrest did not include a warrantless
search for and seizure of a still whose exact location and illegal
use were known well in advance. The fact that, at the time of the
arrest, the still was in plain view and nearby was therefore
irrelevant. The agents were in exactly the same position as the
policemen in
Taylor v. United States, 286 U. S.
1, who had unmistakable evidence of sight and smell that
contraband liquor was stored in a garage, but nonetheless violated
the Fourth Amendment when they entered and seized it without a
warrant.
Trupiano, to be sure, did not long remain undisturbed.
The extremely restrictive view taken there of the allowable extent
of a search and seizure incident to lawful arrest was rejected in
United States v. Rabinowitz, 339 U. S.
56.
See Chimel v. California, 395 U.
S. 752. The case demonstrates, however, the operation of
the general principle that "plain view" alone can never justify a
warrantless seizure.
Cf. n 24,
supra.
[
Footnote 26]
None of the cases cited in
403 U. S.
JUSTICE BLACK casts any doubt upon this conclusion. In
Steele
v. United States, 267 U. S. 498,
agents observed cases marked "Whiskey" being taken into a building
from a truck. On this basis, they obtained a warrant to search the
premises for contraband liquor. In the course of the search, they
came upon a great deal of whiskey and gin -- not that they had seen
unloaded -- and various bottling equipment, and seized all they
found.
In
Warden v. Hayden, 387 U. S. 294, the
police entered and searched a house in hot pursuit of a fleeing
armed robber. The Court pointed out that
"[s]peed here was essential, and only a thorough search of the
house for persons and weapons could have insured that Hayden was
the only man present and that the police had control of all weapons
which could be used against them or to effect an escape."
387 U.S. at
387 U. S. 299.
The Court then established with painstaking care that the various
articles of clothing seized were discovered during a search
directed at the robber and his weapons.
Id. at
387 U. S.
299-300.
In
United States v. Lee, 274 U.
S. 559, a Coast Guard patrol approached a boat on the
high seas at night. A searchlight was turned on the boat, and
revealed cases of contraband. The liquor subsequently seized was
never introduced in evidence, but the seizing officers were allowed
to testify to what they had seen. As the Court put it: "A later
trespass by the officers, if any, did not render inadmissible in
evidence knowledge legally obtained." 274 U.S. at
274 U. S.
563.
In
Marron v. United States, 275 U.
S. 192, officers raided a speakeasy with a warrant to
search for and seize contraband liquor. They arrested the bartender
and seized a number of bills and other papers in plain view on the
bar. While searching a closet for liquor, they came across a ledger
kept in the operation of the illegal business, which they also
seized. There is no showing whatever that these seizures outside
the warrant were planned in advance. The
Marron Court
upheld them as "incident" to the arrest. The "plain view" aspect of
the case was later emphasized in order to avoid the implication
that arresting officers are entitled to make an exploratory search
of the premises where the arrest occurs.
See Go-Bart Importing
Co. v. United States, 282 U.S. at
282 U. S. 358;
United States v. Lefkowitz, 285 U.
S. 452,
285 U. S. 465;
United States v. Rabinowitz, 339 U.S. at
339 U. S. 78
(Frankfurter, J., dissenting). Thus,
Marron, like
Steele, supra, Warden, supra, and
Lee, supra, can
hardly be cited for the proposition that the police may justify a
planned warrantless seizure by maneuvering themselves within "plain
view" of the object they want.
Finally,
Ker v. California, 374 U. S.
23, is fully discussed in
n 28,
infra.
[
Footnote 27]
MR. JUSTICE BLACK laments that the Court today "abolishes
seizure incident to arrest" (
but see n 24,
supra), while MR. JUSTICE WHITE
no less forcefully asserts that the Court's "new rule" will
"accomplish nothing." In assessing these claims, it is well to keep
in mind that we deal here with a
planned warrantless
seizure. This Court has never permitted the legitimation of a
planned warrantless seizure on plain view grounds,
see
n 26,
supra, and to
do so here would be flatly inconsistent with the existing body of
Fourth Amendment law. A long line of cases, of which those cited in
the text at
n 25,
supra, are only a sample, make it clear beyond doubt that
the mere fact that the police have legitimately obtained a plain
view of a piece of incriminating evidence is not enough to justify
a warrantless seizure. Although MR. JUSTICE BLACK and MR. JUSTICE
WHITE appear to hold contrasting views of the import of today's
decision, they are in agreement that this warrant requirement
should be ignored whenever the seizing officers are able to arrange
to make an arrest within sight of the object they are after. "The
exceptions cannot be enthroned into the rule."
United States v.
Rabinowitz, 339 U.S. at
339 U. S. 80
(Frankfurter, J., dissenting). We recognized the dangers of
allowing the extent of Fourth Amendment protections to turn on the
location of the arrestee in
Chimel v. California, 395 U.S.
at
395 U. S. 767,
noting that, under the law of search incident to arrest as
enunciated prior to
Chimel,
"law enforcement officials [had] the opportunity to engage in
searches not justified by probable cause, by the simple expedient
of arranging to arrest suspects at home rather than elsewhere."
Cf. Trupiano v. United States, supra, n 25, where the Court held:
"As we have seen, the existence of [the illegal still] and the
desirability of seizing it
were known to the agents long before
the seizure, and formed one of the main purposes of the raid.
Likewise, the arrest of Antoniole [the person found in the shed
with the still] . . . was a foreseeable event motivating the raid.
But the precise location of the petitioners at the time of their
arrest had no relation to the foreseeability or necessity of the
seizure. The practicability of obtaining a search warrant did not
turn upon whether Antoniole and the others were within the
distillery building when arrested, or upon whether they were then
engaged in operating the illicit equipment. . . . Antoniole might
well have been outside the building at that particular time. If
that had been the case and he had been arrested in the farmyard,
the entire argument advanced by the Government in support of the
seizure without warrant would collapse. We do not believe that the
applicability of the Fourth Amendment to the facts of this case
depends upon such a fortuitous factor as the precise location of
Antoniole at the time of the raid."
334 U.S. at
334 U. S.
707-708. (Emphasis supplied.)
[
Footnote 28]
Ker v. California, 374 U. S. 23, is
not to the contrary. In that case, the police had probable cause to
enter Ker's apartment and arrest him, and they made an entry for
that purpose. They did not have a search warrant, but the Court
held that "time . . . was of the essence," so that a warrant was
unnecessary. As the police entered the living room, Ker's wife
emerged from the adjacent kitchen. One of the officers moved to the
door of the kitchen, looked in, and observed a brick of marihuana
in plain view on a table. The officer brought Ker and his wife into
the kitchen, questioned them, and, when they failed to explain the
marihuana, arrested them and seized the contraband. The police then
searched the whole apartment and found various other incriminating
evidence. The Court held that the general exploratory search of the
whole apartment "was well within the limits upheld in
Harris v. United
States [331 U.S. 145]" for a search incident to a
lawful arrest. The Court also rejected Ker's claim that the seizure
of the brick of marihuana in the kitchen was illegal because the
police had "searched" for it (by going to the door of the kitchen
and looking in) before making any arrest. The Court reasoned that,
when Mrs. Ker emerged from the kitchen, it was reasonable for the
officer to go to the door and look in, and that, when he saw the
brick of marihuana, he was not engaged in any "search" at all. Once
he had arrested the Kers, the actual seizure of the brick was
lawful because "incident" to the arrest. 374 U.S. at
374 U. S.
42-43.
Ker is distinguishable from the present case on at
least the following grounds: in
Ker, the Court found that
"the officers entered the apartment for the purpose of arresting
George Ker," rather than for purposes of seizure or search, 374
U.S. at
374 U. S. 42-43;
exigent circumstances justified the failure to obtain a search
warrant; the discovery of the brick of marihuana was fortuitous;
the marihuana was contraband easily destroyed; and it was in the
immediate proximity of the Kers at the moment of their arrest so
that the seizure was unquestionably lawful under the
search-incident law of the time, and might be lawful under the more
restrictive standard of
Chimel v. California, 395 U.
S. 752. Not one of these elements was present in the
case before us.
[
Footnote 29]
United States v. Rabinowitz, supra, at
339 U. S.
66.
[
Footnote 30]
See the cases cited in nn.
5-8 supra, and in the text at
n 25,
supra.
[
Footnote 31]
See Carroll v. United States, supra, and cases
discussed in
403 U. S.
Katz v. United States, supra, (electronic surveillance);
Terry v. Ohio, 392 U. S. 1;
Sibron v. New York, 392 U. S. 40
(street searches);
Camara v. Municipal Court, 387 U.
S. 523;
See v. Seattle, 387 U.
S. 541 (administrative searches).
[
Footnote 32]
E.g., Giordenello v. United States, 357 U.
S. 480.
[
Footnote 33]
E.g., Marron v. United States, supra; United States v.
Rabinowitz, supra.
[
Footnote 34]
E.g., Wong Sun v. United States, 371 U.
S. 471.
[
Footnote 35]
E.g., Trupiano v. United States, supra; Warden v. Hayden,
supra; Ker v. California, supra.
[
Footnote 36]
Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d
385 (1970).
[
Footnote 37]
Katz v. United States, supra, at
389 U. S.
357.
[
Footnote 38]
Gouled v. United States, 255 U.S. at
255 U. S.
304.
[
Footnote 39]
Cf. Recent Cases, 79 Harv.L.Rev. 1513, 1519 (1966);
Note, Seizures by Private Parties: Exclusion in Criminal Cases, 19
Stan.L.Rev. 608 (1967).
MR. JUSTICE HARLAN, concurring.
From the several opinions that have been filed in this case, it
is apparent that the law of search and seizure is due for an
overhauling. State and federal law enforcement officers and
prosecutorial authorities must find quite intolerable the present
state of uncertainty, which extends even to such an everyday
question as the circumstances under which police may enter a man's
property to arrest him and seize a vehicle believed to have been
used during the commission of a crime.
I would begin this process of reevaluation by overruling
Mapp v. Ohio, 367 U. S. 643
(1961), and
Ker v. California, 374 U. S.
23 (1963). The former of these cases made the federal
"exclusionary rule" applicable to the States. The latter forced the
States to follow all the ins and outs of this Court's Fourth
Amendment decisions, handed down in federal cases.
In combination,
Mapp and
Ker have been
primarily responsible for bringing about serious distortions and
incongruities in this field of constitutional law. Basically, these
have had two aspects, as I believe an examination of our more
recent opinions and certiorari docket will show. First, the States
have been put in a federal mold with respect to this aspect of
criminal law enforcement, thus depriving the country of the
opportunity to observe
Page 403 U. S. 491
the effects of different procedures in similar settings.
See, e.g., Oaks, Studying the Exclusionary Rule in Search
and Seizure, 37 U.Chi.L.Rev. 665 (1970), suggesting that the
assumed "deterrent value" of the exclusionary rule has never been
adequately demonstrated or disproved, and pointing out that,
because of
Mapp, all comparative statistics are 10 years
old, and no new ones can be obtained. Second, in order to leave
some room for the States to cope with their own diverse problems,
there has been generated a tendency to relax federal requirements
under the Fourth Amendment, which now govern state procedures as
well. For an illustration of that tendency in another
constitutional field, again resulting from the infelicitous
"incorporation" doctrine,
see Williams v. Florida,
399 U. S. 78
(1970). Until we face up to the basic constitutional mistakes of
Mapp and
Ker, no solid progress in setting things
straight in search and seizure law will, in my opinion, occur.
But for
Mapp and
Ker, I would have little
difficulty in voting to sustain this conviction, for I do not think
that anything the State did in this case could be said to offend
those values which are "at the core of the Fourth Amendment."
Wolf v. Colorado, 338 U. S. 25,
338 U. S. 27
(1949);
cf. Irvine v. California, 347 U.
S. 128 (1954);
Rochin v. California,
342 U. S. 165
(1952).
Because of
Mapp and
Ker, however, this case
must be judged in terms of federal standards, and, on that basis, I
concur, although not without difficulty, in Parts I, II-D, and III
of the Court's opinion and in the judgment of the Court.* It must
be recognized that the case is a close one. The reason I am tipped
in favor of MR. JUSTICE
Page 403 U. S. 492
STEWART's position is that a contrary result in this case would,
I fear, go far toward relegating the warrant requirement of the
Fourth Amendment to a position of little consequence in federal
search and seizure law, a course which seems to me opposite to the
one we took in
Chimel v. California, 395 U.
S. 752 (1969), two Terms ago.
Recent scholarship has suggested that, in emphasizing the
warrant requirement over the reasonableness of the search, the
Court has "stood the fourth amendment on its head" from a
historical standpoint. T. Taylor, Two Studies in Constitutional
Interpretation 23-24 (1969). This issue is perhaps most clearly
presented in the case of a warrantless entry into a man's home to
arrest him on probable cause. The validity of such entry was left
open in
Jones v. United States, 357 U.
S. 493,
357 U. S.
499-500 (1958), and, although my Brothers WHITE and
STEWART both feel that their contrary assumptions on this point are
at the root of their disagreement in this case,
ante at
403 U. S.
477-479;
post at
403 U. S.
510-512, 521, the Court again leaves the issue open.
Ante at
403 U. S. 481.
In my opinion, it does well to do so. This matter should not be
decided in a state case not squarely presenting the issue, and
where it was not fully briefed and argued. I intimate no view on
this subject, but, until it is ripe for decision, I hope, in a
federal case, I am unwilling to lend my support to setting back the
trend of our recent decisions.
* Because of my views as to the retroactivity of
Chimel v.
California, 395 U. S. 752
(1969), I do not believe the seizure of the Pontiac can be upheld
as incident to Coolidge's arrest.
See my separate opinion
in
Mackey v. United States, 401 U.
S. 667,
401 U. S. 675
(1971).
MR. CHIEF JUSTICE BURGER, dissenting in part and concurring in
part.
I join the dissenting opinion of MR. JUSTICE WHITE and in Parts
II and III of MR. JUSTICE BLACK's concurring and dissenting
opinion. I also agree with most of what is said in Part I of MR.
JUSTICE BLACK's opinion, but I am not prepared to accept the
proposition that the Fifth Amendment requires the exclusion of
evidence
Page 403 U. S. 493
seized in violation of the Fourth Amendment. I join in Part III
of MR. JUSTICE STEWART's opinion.
This case illustrates graphically the monstrous price we pay for
the exclusionary rule in which we seem to have imprisoned
ourselves.
See my dissent in
Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, ante, p.
403 U. S.
411.
On the merits of the case, I find not the slightest basis in the
record to reverse this conviction. Here again, the Court reaches
out, strains, and distorts rules that were showing some signs of
stabilizing, and directs a new trial which will be held more than
seven years after the criminal acts charged.
Mr. Justice Stone, of the Minnesota Supreme Court, called the
kind of judicial functioning in which the Court indulges today
"bifurcating elements too infinitesimal to be split."
MR. JUSTICE BLACK, concurring and dissenting.
After a jury trial in a New Hampshire state court, petitioner
was convicted of murder and sentenced to life imprisonment. Holding
that certain evidence introduced by the State was seized during an
"unreasonable" search, and that the evidence was inadmissible under
the judicially created exclusionary rule of the Fourth Amendment,
the majority reverses that conviction. Believing that the search
and seizure here was reasonable and that the Fourth Amendment,
properly construed, contains no such exclusionary rule, I
dissent.
The relevant facts are these. Pamela Mason, a 14-year-old school
girl, lived with her mother and younger brother in Manchester, New
Hampshire. She occasionally worked after school as a babysitter,
and sought such work by posting a notice on a bulletin board in a
local laundromat. On January 13, 1064, she arrived home from school
about 4:15 p.m. Pamela's mother told her
Page 403 U. S. 494
that a man had called seeking a babysitter for that evening and
said that he would call again later. About 4:30 p.m., after
Pamela's mother had left for her job as a waitress at a nearby
restaurant, Pamela received a phone call. Her younger brother, who
answered the call but did not overhear the conversation, later
reported that the caller was a man. After the call, Pamela prepared
dinner for her brother and herself, then left the house about 6
p.m. Her family never again saw her alive. Eight days later, on
January 21, 1964, Pamela's frozen body was discovered in a
snowdrift beside an interstate highway a few miles from her home.
Her throat had been slashed and she had been shot in the head.
Medical evidence showed that she died some time between 8 and 10
p.m. on January 13, the night she left home.
A manhunt ensued. Two witnesses informed the police that, about
9:30 p.m. on the night of the murder, they had stopped to offer
assistance to a man in a 1951 Pontiac automobile which was parked
beside the interstate highway near the point where the little
girl's dead body was later found. Petitioner came under suspicion
seven days after the body was discovered when one of his neighbors
reported to the police that petitioner had been absent from his
home between 5 and 11 p.m. on January 13, the night of the murder.
Petitioner owned a 1951 Pontiac automobile that matched the
description of the car which the two witnesses reported seeing
parked where the girl's body had been found. The police first
talked with petitioner at his home on the evening of January 28,
fifteen days after the girl was killed, and arranged for him to
come to the police station the following Sunday, February 2, 1964.
He went to the station that Sunday and answered questions
concerning his activities on the night of the murder, telling the
police that he had been shopping in a neighboring town at the
Page 403 U. S. 495
time the murder was committed. During questioning, petitioner
confessed to having committed an unrelated larceny from his
employer, and was held overnight at the police station in
connection with that offense. On the next day, he was permitted to
go home.
While petitioner was being questioned at the police station on
February 2, two policemen went to petitioner's home to talk with
his wife. They asked what firearms the petitioner owned, and his
wife produced two shotguns and two rifles which she voluntarily
offered to the police. Upon examination, the University of Rhode
Island Criminal Investigation Laboratory concluded that one of the
firearms, a Mossberg .22-caliber rifle, had fired the bullet found
in the murdered girl's brain.
Petitioner admitted that he was a frequent visitor to the
laundromat where Pamela posted her babysitting notice and that he
had been there on the night of the murder. The following day, a
knife belonging to petitioner, which could have inflicted the
murdered girl's knife wounds, was found near that laundromat. The
police also learned that petitioner had unsuccessfully contacted
four different persons before the girl's body had been discovered
in an attempt to fabricate an alibi for the night of January
13.
On February 19, 1964, all this evidence was presented to the
state attorney general, who was authorized under New Hampshire law
to issue arrest and search warrants. The attorney general
considered the evidence and issued a warrant for petitioner's
arrest and four search warrants, including a warrant for the
seizure and search of petitioner's Pontiac automobile.
On the day the warrants issued, the police went to the
petitioner's residence and placed him under arrest. They took
charge of his 1951 Pontiac, which was parked in plain view in the
driveway in front of the house, and, two hours later, towed the car
to the police station.
Page 403 U. S. 496
During the search of the automobile at the station, the police
obtained vacuum sweepings of dirt and other fine particles which
matched like sweepings taken from the clothes of the murdered girl.
Based on the similarity between the sweepings taken from
petitioner's automobile and those taken from the girl's clothes,
experts who testified at trial concluded that Pamela had been in
the petitioner's car. The rifle given to the police by petitioner's
wife was also received in evidence.
Petitioner challenges his conviction on the ground that the
rifle obtained from his wife and the vacuum sweepings taken from
his car were seized in violation of the Fourth Amendment and were
improperly admitted at trial. With respect to the rifle voluntarily
given to the police by petitioner's wife, the majority holds that
it was properly received in evidence. I agree. But the Court
reverses petitioner's conviction on the ground that the sweepings
taken from his car were seized during an illegal search, and, for
this reason, the admission of the sweepings into evidence violated
the Fourth Amendment. I dissent.
I
The Fourth Amendment prohibits unreasonable searches and
seizures. The Amendment says nothing about consequences. It
certainly nowhere provides for the exclusion of evidence as the
remedy for violation. The Amendment states:
"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."
No examination of that text can find an exclusionary rule by a
mere process of construction. Apparently the first suggestion that
the Fourth Amendment somehow embodied a rule of evidence came
Page 403 U. S. 497
in Justice Bradley's majority opinion in
Boyd v. United
States, 116 U. S. 616
(1886). The holding in that case was that, ordinarily, a person may
not be compelled to produce his private books and papers for use
against him as proof of crime. That decision was a sound
application of accepted principles of common law and the command of
the Fifth Amendment that no person shall be compelled to be a
witness against himself. But Justice Bradley apparently preferred
to formulate a new exclusionary rule from the Fourth Amendment,
rather than rely on the already existing exclusionary rule
contained in the language of the Fifth Amendment. His opinion
indicated that compulsory production of such evidence at trial
violated the Fourth Amendment. Mr. Justice Miller, with whom Chief
Justice Waite joined, concurred solely on the basis of the Fifth
Amendment, and explicitly refused to go along with Justice
Bradley's novel reading of the Fourth Amendment. It was not until
1914, some 28 years after
Boyd and when no member of the
Boyd Court remained, that the Court, in
Weeks v.
United States, 232 U. S. 383,
stated that the Fourth Amendment itself barred the admission of
evidence seized in violation of the Fourth Amendment. The
Weeks opinion made no express confession of a break with
the past. But if it was merely a proper reading of the Fourth
Amendment, it seems strange that it took this Court nearly 125
years to discover the true meaning of those words. The truth is
that the source of the exclusionary rule simply cannot be found in
the Fourth Amendment. That Amendment did not when adopted, and does
not now, contain any constitutional rule barring the admission of
illegally seized evidence.
In striking contrast to the Fourth Amendment, the Fifth
Amendment states in express, unambiguous terms that no person
"shall be compelled in any criminal case
Page 403 U. S. 498
to be a witness against himself." The Fifth Amendment, in and of
itself, directly and explicitly commands its own exclusionary rule
-- a defendant cannot be compelled to give evidence against
himself. Absent congressional action taken pursuant to the Fourth
Amendment, if evidence is to be excluded, it must be under the
Fifth Amendment, not the Fourth. That was the point so ably made in
the concurring opinion of Justice Miller, joined by Chief Justice
Waite, in
Boyd v. United States, supra, and that was the
thrust of my concurring opinion in
Mapp v. Ohio,
367 U. S. 643,
367 U. S. 661
(1961).
The evidence seized by breaking into Mrs. Mapp's house and the
search of all her possessions was excluded from evidence not by the
Fourth Amendment, which contains no exclusionary rule, but by the
Fifth Amendment, which does. The introduction of such evidence
compels a man to be a witness against himself, and evidence so
compelled must be excluded under the Fifth Amendment not because
the Court says so, but because the Fifth Amendment commands it.
The Fourth Amendment provides a constitutional means by which
the Government can act to obtain evidence to be used in criminal
prosecutions. The people are obliged to yield to a proper exercise
of authority under that Amendment. [
Footnote 2/1] Evidence properly seized under the Fourth
Amendment, of course, is admissible at trial. But nothing in the
Fourth Amendment provides that evidence seized in violation of that
Amendment must be excluded.
The majority holds that evidence it views as improperly seized
in violation of its ever-changing concept of the Fourth Amendment
is inadmissible. The majority
Page 403 U. S. 499
treats the exclusionary rule as a judge-made rule of evidence
designed and utilized to enforce the majority's own notions of
proper police conduct. The Court today announces its new rules of
police procedure in the name of the Fourth Amendment, then holds
that evidence seized in violation of the new "guidelines" is
automatically inadmissible at trial. The majority does not purport
to rely on the Fifth Amendment to exclude the evidence in this
case. Indeed, it could not. The majority prefers instead to rely on
"changing times" and the Court's role, as it sees it, as the
administrator in charge of regulating the contacts of officials
with citizens. The majority states that, in the absence of a better
means of regulation, it applies a court-created rule of
evidence.
I readily concede that there is much recent precedent for the
majority's present announcement of yet another new set of police
operating procedures. By invoking this rulemaking power found not
in the words, but somewhere in the "spirit," of the Fourth
Amendment, the Court has expanded that Amendment beyond
recognition. And each new step is justified as merely a logical
extension of the step before.
It is difficult for me to believe the Framers of the Bill of
Rights intended that the police be required to prove a defendant's
guilt in a "little trial" before the issuance of a search warrant.
But see Aguilar v. Texas, 378 U.
S. 108 (1964);
Spinelli v. United States,
393 U. S. 410
(1969). No such proceeding was required before or after the
adoption of the Fourth Amendment, until this Court decided
Aguilar and
Spinelli. Likewise, eavesdroppers
were deemed to be competent witnesses in both English and American
courts up until this Court, in its Fourth Amendment "rulemaking"
capacity, undertook to lay down rules for electronic surveillance.
Berger v. New York, 388 U. S. 41,
388 U. S. 70
(1967) (BLACK, J., dissenting);
Katz v. United States,
389 U. S. 347,
389 U. S. 364
(1967) (BLACK, J., dissenting).
Page 403 U. S. 500
The reasonableness of a search incident to an arrest, extending
to areas under the control of the defendant and areas where
evidence may be found, was an established tenet of English common
law, and American constitutional law after adoption of the Fourth
Amendment -- that is, until
Chimel v. California,
395 U. S. 752
(1969). The broad, abstract, and ambiguous concept of "privacy" is
now unjustifiably urged as a comprehensive substitute for the
Fourth Amendment's guarantee against "unreasonable searches and
seizures."
Griswold v. Connecticut, 381 U.
S. 479 (1965).
Our Government is founded upon a written Constitution. The
draftsmen expressed themselves in careful and measured terms
corresponding with the immense importance of the powers delegated
to them. The Framers of the Constitution, and the people who
adopted it, must be understood to have used words in their natural
meaning, and to have intended what they said. The Constitution
itself contains the standards by which the seizure of evidence
challenged in the present case and the admissibility of that
evidence at trial is to be measured in the absence of congressional
legislation. It is my conclusion that both the seizure of the rifle
offered by petitioner's wife and the seizure of the automobile at
the time of petitioner's arrest were consistent with the Fourth
Amendment, and that the evidence so obtained under the
circumstances shown in the record in this case could not be
excluded under the Fifth Amendment.
II
The majority holds that the warrant authorizing the seizure and
search of petitioner's automobile was constitutionally defective
and void. With respect to search warrants, the Fourth Amendment
provides that
"no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place
Page 403 U. S. 501
to be searched, and the persons or things to be seized."
The majority concedes that the police did show probable cause
for the issuance of the warrant. The majority does not contest that
the warrant particularly described the place to be searched, and
the thing to be seized.
But compliance with state law and the requirements of the Fourth
Amendment apparently is not enough. The majority holds that the
state attorney general's connection with the investigation
automatically rendered the search warrant invalid. In the first
place, there is no language in the Fourth Amendment which provides
any basis for the disqualification of the state attorney general to
act as a magistrate. He is a state official of high office. The
Fourth Amendment does not indicate that his position of authority
over state law enforcement renders him ineligible to issue warrants
upon a showing of probable cause supported by oath or affirmation.
The majority's argument proceeds on the "little trial" theory that
the magistrate is to sit as a judge and weigh the evidence and
practically determine guilt or innocence before issuing a warrant.
There is nothing in the Fourth Amendment to support such a
magnified view of the magistrate's authority. The state attorney
general was not barred by the Fourth Amendment or any other
constitutional provision from issuing the warrant.
In the second place, the New Hampshire Supreme Court held in
effect that the state attorney general's participation in the
investigation of the case at the time he issued the search warrant
was "harmless error" if it was error at all. I agree. It is
difficult to imagine a clearer showing of probable cause. There was
no possibility of prejudice, because there was no room for
discretion. Indeed, it could be said that a refusal to issue a
warrant on the showing of probable cause made in this case would
have been an abuse of discretion. In light
Page 403 U. S. 502
of the showing made by the police, there is no reasonable
possibility that the state attorney general's own knowledge of the
investigation contributed to the issuance of the warrant. I see no
error in the state attorney general's action. But even if there was
error, it was harmless beyond reasonable doubt.
See Harrington
v. California, 395 U. S. 250
(1969);
Chapman v. California, 386 U. S.
18 (1967).
Therefore, it is my conclusion that the warrant authorizing the
seizure and search of petitioner's automobile was constitutional
under the Fourth Amendment, and that the evidence obtained during
that search cannot be excluded under the Fifth Amendment. Moreover,
I am of the view that, even if the search warrant had not issued,
the search in this case nonetheless would have been constitutional
under all three of the principles considered and rejected by the
majority.
III
It is important to point out that the automobile itself was
evidence, and was seized as such. Prior to the seizure, the police
had been informed by two witnesses that, on the night of the
murder, they had seen an automobile parked near the point where the
little girl's dead body was later discovered. Their description of
the parked automobile matched petitioner's car. At the time of the
seizure, the identification of petitioner's automobile by the
witnesses as the car they had seen on the night of the murder was
yet to be made. The police had good reason to believe that the
identification would be an important element of the case against
the petitioner. Preservation of the automobile itself as evidence
was a reasonable motivation for its seizure. Considered in light of
the information in the hands of the New Hampshire police at the
time of the seizure, I conclude that the seizure and search were
constitutional, even had there been no search warrant, for the
following among other reasons.
Page 403 U. S. 503
A
First, the seizure of petitioner's automobile was valid as
incident to a lawful arrest. The majority concedes that there was
probable cause for petitioner's arrest. Upon arriving at
petitioner's residence to make that arrest, the police saw
petitioner's automobile, which they knew fitted the description of
the car observed by two witnesses at the place where the murdered
girl's body had been found. The police arrested the petitioner and
seized the automobile. The majority holds that, because the police
had to go into petitioner's residence in order to place petitioner
under arrest, the contemporaneous seizure of the automobile outside
the house was not incident to that arrest. I cannot accept this
elevation of form over reason.
After stating that
Chimel v. California, 395 U.
S. 752 (1969), is inapplicable to this case, the
majority goes on to formulate and apply a
per se rule
reaching far beyond
Chimel. To do so, the majority employs
a classic
non sequitur. Because this Court has held that
police arresting a defendant on the street in front of his house
cannot go into that house and make a general search, it follows,
says the majority, that the police having entered a house to make
an arrest cannot step outside the house to seize clearly visible
evidence. Even though the police, upon entering a doorway to make a
valid arrest, would be authorized, under the pre-
Chimel
law the majority purports to apply, to make a five-hour search of a
four-room apartment,
see Harris v. United States,
331 U. S. 145
(1947), the majority holds that the police could not step outside
the doorway to seize evidence they passed on their way in. The
majority reasons that, as the doorway locks the policeman out, once
entered, it must lock him in.
The test of reasonableness cannot be governed by such arbitrary
rules. Each case must be judged on its
Page 403 U. S. 504
own particular facts. Here, there was no general exploration,
only a direct seizure of important evidence in plain view from both
inside as well as outside the house. On the facts of this case, it
is my opinion that the seizure of petitioner's automobile was
incident to his arrest, and was reasonable under the terms of the
Fourth Amendment.
B
Moreover, under our decision last Term in
Chambers v.
Maroney, 399 U. S. 42
(1970), the police were entitled not only to seize petitioner's
car, but also to search the car after it had been taken to the
police station. The police had probable cause to believe that the
car had been used in the commission of the murder and that it
contained evidence of the crime. Under
Carroll v. United
States, 267 U. S. 132
(1925), and
Chambers v. Maroney, supra, such belief was
sufficient justification for the seizure and the search of
petitioner's automobile.
The majority reasons that the
Chambers and
Carroll rationale, based on the mobility of automobiles,
is inapplicable here because the petitioner's car could have been
placed under guard, and thereby rendered immobile. But this Court
explicitly rejected such reasoning in
Chambers:
"For constitutional purposes, we see no difference between, on
the one hand, seizing and holding a car before presenting the
probable cause issue to a magistrate and, on the other hand,
carrying out an immediate search without a warrant. . . . The
probable cause factor still obtained at the station house, and so
did the mobility of the car. . . ."
399 U.S. at
399 U. S. 52.
This Court held there that the delayed search at the station house,
as well as an immediate search at the time of seizure, was
reasonable under the Fourth Amendment.
As a second argument for holding that the
Chambers
decision does not apply to this case, the majority reasons that the
evidence could not have been altered or the car
Page 403 U. S. 505
moved, because petitioner was in custody and his wife was
accompanied by police, at least until the police towed the car to
the station. But the majority's reasoning depends on two
assumptions: first, that the police should, or even could, continue
to keep petitioner's wife effectively under house arrest, and
second, that no one else had any motivation to alter or remove the
car. I cannot accept the first assumption, nor do I believe that
the police acted unreasonably in refusing to accept the second.
[
Footnote 2/2]
C
I believe the seizure of petitioner's automobile was valid under
the well established right of the police to seize evidence in plain
view at the time and place of arrest. The majority concedes that
the police were rightfully at petitioner's residence to make a
valid arrest at
Page 403 U. S. 506
the time of the seizure. To use the majority's words, the
"initial intrusion" which brought the police within plain view of
the automobile was legitimate. The majority also concedes that the
automobile was "plainly visible both from the street and from
inside the house where Coolidge was actually arrested,"
ante at
403 U. S. 448,
and that the automobile itself was evidence which the police had
probable cause to seize.
Ante at
403 U. S. 464.
Indeed, the majority appears to concede that the seizure of
petitioner's automobile was valid under the doctrine upholding
seizures of evidence in plain view at the scene of arrest, at least
as it stood before today.
Ante at
403 U. S.
465-466, n. 24.
However, even after conceding that petitioner's automobile
itself was evidence of the crime, that the police had probable
cause to seize it as such, and that the automobile was in plain
view at the time and place of arrest, the majority holds the
seizure to be a violation of the Fourth Amendment because the
discovery of the automobile was not "inadvertent." The majority
confidently states:
"What the 'plain view' cases have in common is that the police
officer in each of them had a prior justification for an intrusion
in the course of which he came inadvertently across a piece of
evidence incriminating the accused."
But the prior holdings of this Court not only fail to support
the majority's statement, they flatly contradict it. One need look
no further than the cases cited in the majority opinion to discover
the invalidity of that assertion.
In one of these cases,
Ker v. California, 374 U. S.
23 (1963), the police observed the defendant's
participation in an illegal marihuana transaction, then went to his
apartment to arrest him. After entering the apartment, the police
saw and seized a block of marihuana as they placed the defendant
under arrest. This Court upheld that seizure on the ground that the
police were justifiably
Page 403 U. S. 507
in the defendant's apartment to make a valid arrest, there was
no search because the evidence was in plain view, and the seizure
of such evidence was authorized when incident to a lawful arrest.
The discovery of the marihuana there could hardly be described as
"inadvertent." [
Footnote 2/3]
In
Marron v. United States, 275 U.
S. 192 (1927), also cited by the majority, the Court
upheld the seizure of business records as being incident to a valid
arrest for operating an illegal retail whiskey enterprise. The
records were discovered in plain view. I cannot say that the
seizure of business records from a place of business during the
course of an arrest for operating an illegal business was
"inadvertent." [
Footnote 2/4]
The majority confuses the historically justified right of the
police to seize visible evidence of the crime in open view at the
scene of arrest with the "plain view" exception
Page 403 U. S. 508
to the requirement of particular description in search warrants.
The majority apparently reasons that, unless the seizure made
pursuant to authority conferred by a warrant is limited to the
particularly described object of seizure, the warrant will become a
general writ of assistance. Evidently, as a check on the
requirement of particular description in search warrants, the
majority announces a new rule that items not named in a warrant
cannot be seized unless their discovery was unanticipated or
"inadvertent." [
Footnote 2/5] The
majority's concern is with the
Page 403 U. S. 509
scope of the intrusion authorized by a warrant. But the right to
seize items properly subject to seizure because in open view at the
time of arrest is quite independent of any power tax search for
such items pursuant to a warrant. The entry in the present case did
not depend for its authority on a search warrant, but was
concededly authorized by probable cause to effect a valid arrest.
The intrusion did not exceed that authority. The intrusion was
limited in scope to the circumstances which justified the entry in
the first place the arrest of petitioner. There was no general
search; indeed, there was no search at all. The automobile itself
was evidence properly subject to seizure, and was in open view at
the time and place of arrest. [
Footnote
2/6]
Only rarely can it be said that evidence seized incident to an
arrest is truly unexpected or inadvertent. Indeed, if the police
officer had no expectation of discovering weapons, contraband, or
other evidence, he would make no search. It appears to me that the
rule adopted by the Court today, for all practical purposes,
abolishes seizure incident to arrest. The majority rejects the test
of reasonableness provided in the Fourth Amendment and substitutes
a
per se -- rule if the police could have obtained a
warrant and did not, the seizure, no matter how reasonable, is
void. But the Fourth Amendment does not require that every search
be made pursuant to a warrant. It prohibits only "unreasonable
searches and seizures." The relevant test is not the reasonableness
of the opportunity to procure a warrant, but the reasonableness of
the seizure under all the circumstances. The
Page 403 U. S. 510
test of reasonableness cannot be fixed by
per se rules;
each case must be decided on its own facts.
For all the reasons stated above, I believe the seizure and
search of petitioner's car was reasonable and, therefore,
authorized by the Fourth Amendment. The evidence so obtained
violated neither the Fifth Amendment, which does contain an
exclusionary rule, nor the Fourth Amendment, which does not. The
jury of petitioner's peers, as conscious as we of the awesome
gravity of their decision, heard that evidence and found the
petitioner guilty of murder. I cannot in good conscience upset that
verdict.
MR. JUSTICE BLACKMUN joins MR. JUSTICE BLACK in Parts II and III
of this opinion and in that portion of Part I thereof which is to
the effect that the Fourth Amendment supports no exclusionary
rule.
[
Footnote 2/1]
There are, of course, certain searches which constitutionally
cannot be authorized even with a search warrant or subpoena.
See, e.g., Boyd v. United States, 116 U.
S. 616 (1886);
Rochin v. California,
342 U. S. 165,
342 U. S. 174
(1952) (BLACK, J., concurring);
Schmerber v. California,
384 U. S. 757,
384 U. S. 773
(1966) (BLACK, J., dissenting).
[
Footnote 2/2]
The majority attempts to rely on
Preston v. United
States, 376 U. S. 364
(1964), to support its holding that the police could not search
petitioner's automobile at the station house. But this case is not
Preston, nor is it controlled by
Preston. The
police arrested Preston for vagrancy. No claim was made that the
police had any authority to hold his car in connection with that
charge. The fact that the police had custody of Preston's car was
totally unrelated to the vagrancy charge for which they arrested
him; so was their subsequent search of the car. Here, the officers
arrested petitioner for murder. They seized petitioner's car as
evidence of the crime for which he was arrested. Their subsequent
search of the car was directly related to the reason petitioner was
arrested and the reason his car had been seized, and, therefore,
was valid under this Court's decision in
Cooper v.
California, 386 U. S. 58
(1967).
My Brother WHITE points out that the police in the present case
not only searched the car immediately upon taking it to the station
house, but also searched it 11 months and 14 months after seizure.
We held in
Cooper, where the search occurred one week
after seizure, that the Fourth Amendment is not violated by the
examination or search of a car validly held by officers for use as
evidence in a pending trial. In my view, the police are entitled to
search a car, whether detained for a week or for a year, where that
car is being properly held as relevant evidence of the crime
charged.
[
Footnote 2/3]
The facts in
Ker undermine the majority's attempt to
distinguish it from the instant case. The arresting officer there
learned from other policemen that Ker had been observed meeting
with a known marihuana supplier. The arresting officer had received
information at various times over an eight-month period that Ker
was selling marihuana from his apartment and that he was securing
this marihuana from the known supplier. The arresting officer had a
"mug" photograph of Ker at the time of the arrest, and testified
that, for at least two months, he had received information as to
Ker's marihuana activities from a named informant who had
previously given information leading to three other arrests and
whose information was believed to be reliable. The arresting
officer did not know whether Ker would be present at his apartment
on the night of arrest. The officer had neither an arrest nor a
search warrant. He entered Ker's apartment, placed Ker under
arrest, and seized the block of marihuana in plain view in the
adjoining room. This Court held that the seizure was reasonable,
and therefore valid under the Fourth Amendment.
[
Footnote 2/4]
The majority correctly notes,
ante at
403 U. S. 464,
that this Court, in
Warden v. Hayden, 387 U.
S. 294 (1967), flatly rejected the distinction for
purposes of the Fourth Amendment between "mere evidence" and
contraband, a distinction which the majority appears to me to
reinstate at another point in its opinion,
ante at
403 U. S. 471
and
403 U. S.
472.
[
Footnote 2/5]
The cases cited by the majority simply do not support the
majority's new rule. For instance, when the police in
Steele v.
United States, 267 U. S. 498
(1925), entered a warehouse under the authority of a search warrant
issued on a showing of probable cause that the Prohibition Act was
being violated and naming "cases of whiskey" as the objects of
search, it can scarcely be said that their discovery and seizure of
barrels of whiskey and bottles and bottling equipment in plain view
were "inadvertent."
The majority states that the seizure in
Warden v. Hayden,
supra, was justified because the police "inadvertently" came
across the evidence while in hot pursuit of a fleeing suspect. In
that case, the police answered the call of two witnesses who stated
that an armed robber had just held up a business. The witnesses
described the robber and the clothes he was wearing. They had
followed the robber to a particular house. The police searched the
house and seized (1) a shotgun and a pistol found in a toilet on
the second floor; (2) ammunition for the pistol and a cap like the
one worn by the robber, both found beneath the mattress in the
defendant's bedroom; and (3) a jacket and trousers of the type the
fleeing man was said to have worn, found in a washing machine in
the basement. It is quite difficult for me to accept the majority's
characterization of these discoveries as "inadvertent."
See also United States v. Lee, 274 U.
S. 559 (1927), another case cited by the majority, where
Coast Guard officers, with probable cause to believe that a boat
was being used to violate the Prohibition Act, shined a searchlight
across the deck and discovered illicit whiskey. The admission of
testimony regarding that discovery was upheld by this Court against
a Fourth Amendment challenge, although the discovery could hardly
be termed "inadvertent."
[
Footnote 2/6]
Moreover, what a person knowingly exposes to the public is not a
subject of Fourth Amendment protection.
See Lewis v. United
States, 385 U. S. 206,
385 U. S. 210
(1966);
United States v. Lee, 274 U.
S. 559,
274 U. S. 563
(1927);
Hester v. United States, 265 U. S.
57 (1924).
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE joins, concurring
and dissenting.
I would affirm the judgment. In my view, Coolidge's Pontiac was
lawfully seized as evidence of the crime in plain sight, and
thereafter was lawfully searched under
Cooper v.
California, 386 U. S. 58
(1967). I am therefore in substantial disagreement with Parts II-C
and II-D of the Court's opinion. Neither do I agree with Part II-B,
and I can concur only in the result as to Part III.
I
The Fourth Amendment commands that the public shall be secure in
their "persons, houses, papers, and effects, against unreasonable
searches and seizures. . . ." As to persons, the overwhelming
weight of authority is that a police officer may make an arrest
without a warrant when he has probable cause to believe the
suspect
Page 403 U. S. 511
has committed a felony. [
Footnote
3/1] The general rule also is that upon the lawful arrest of a
person, he and the area under his immediate control may be
searched, and contraband or
Page 403 U. S. 512
evidence seized without a warrant. The right
"to search the person of the accused when legally arrested to
discover and seize the fruits or evidences of crime . . . has been
uniformly maintained in many cases."
Weeks v. United States, 232 U.
S. 383,
232 U. S. 392
(1914).
Accord, Chimel v. California, 395 U.
S. 752 (1969).
With respect to houses and other private places, the general
rule is otherwise: a search is invalid unless made on probable
cause and under the authority of a warrant specifying the area to
be searched and the objects to be seized. There are various
exceptions to the rule, however, permitting warrantless entries and
limited searches, the most recurring being the arrest without a
warrant.
The case before us concerns the protection offered by the Fourth
Amendment to "effects" other than personal
Page 403 U. S. 513
papers or documents. It is clear that effects may not be seized
without probable cause, but the law as to when a warrant is
required to validate their seizure is confused and confusing. Part
of the difficulty derives from the fact that effects enjoy
derivative protection when located in a house or other area within
reach of the Fourth Amendment. Under existing doctrine, effects
seized in warrantless, illegal searches of houses are fruits of a
constitutional violation, and may not be received in evidence. But
is a warrant required to seize contraband or criminal evidence when
it is found by officers at a place where they are legally entitled
to be at the time? Before a person is deprived of his possession or
right to possession of his effects, must a magistrate confirm that
what the officer has legally seen (and would be permitted to
testify about, if relevant and material) is actually contraband or
criminal evidence?
The issue arises in different contexts. First, the effects may
be found on public property. Suppose police are informed that
important evidence has been secreted in a public park. A search is
made and the evidence found. Although the evidence was hidden,
rather than abandoned, I had not thought a search warrant was
required for officers to make a seizure,
see United States v.
Lee, 274 U. S. 559
(1927) (boat seized on public waters); [
Footnote 3/2]
Hester v. United States,
265 U. S. 57 (1924)
(liquor seized in open field); any more than a warrant is needed to
seize an automobile which is itself evidence of crime and which is
found on a public street or in a parking lot.
See Cooper v.
California, supra.
Second, the items may be found on the premises of a third party
who gives consent for an official search
Page 403 U. S. 514
but who has no authority to consent to seizure of another
person's effects.
Frazier v. Cupp, 394 U.
S. 731 (1969), would seem to settle the validity of the
seizure without a warrant as long as the search itself involves no
Fourth Amendment violation.
Third, the police may arrest a suspect in his home and in the
course of a properly limited search discover evidence of crime. The
line of cases from
Weeks v. United States, supra, to
Harris v. United States, 331 U. S. 145
(1947), had recognized the rule that, upon arrest, searches of the
person and of adjacent areas were reasonable, and
Harris
had approved an incidental search of broad scope. In the next Term,
however,
Trupiano v. United States, 334 U.
S. 699 (1948), departed from the
Harris
approach. In
Trupiano, officers, with probable cause to
arrest, entered property and arrested the defendant while he was
operating an illegal still. The still was seized. Time and
circumstance would have permitted the officers to secure both
arrest and search warrants, but they had obtained neither. The
Court did not disturb seizure of the person without warrant, but
invalidated seizure of the still, since the officers could have had
a warrant, but did not.
United States v. Rabinowitz,
339 U. S. 56
(1950), however, returned to the rule that the validity of searches
incident to arrest does not depend on the practicability of
securing a warrant. And, while
Chimel v. California,
supra, narrowed the permissible scope of incident searches to
the person and the immediate area within reach of the defendant, it
did not purport to reestablish the
Trupiano rule that
searches accompanying arrests are invalid if there is opportunity
to get a warrant.
Finally, officers may be on a suspect's premises executing a
search warrant and, in the course of the authorized search,
discover evidence of crime not covered by the warrant.
Marron
v. United States, 275 U. S. 192
Page 403 U. S. 515
(1927), flatly held that legal presence under a warrant did not
itself justify the seizure of such evidence. However, seizure of
the same evidence was permitted, because it was found in plain
sight in the course of making an arrest and an accompanying search.
It is at least odd to me to permit plain-sight seizures arising in
connection with warrantless arrests, as the long line of cases
ending with
Chimel has done, or arising in the course of a
hot-pursuit search for a felon,
Warden v. Hayden,
387 U. S. 294
(1967);
Hester v. United States, supra; and yet forbid the
warrantless seizure of evidence in plain sight when officers enter
a house under a search warrant that is perfectly valid but does not
cover the items actually seized. I have my doubts that this aspect
of
Marron can survive later cases in this Court,
particularly
Zap v. United States, 328 U.
S. 624 (1946),
vacated on other grounds, 330
U.S. 800 (1947), where federal investigators seized a cancelled
check evidencing a crime that had been observed during the course
of an otherwise lawful search.
See also Stanley v.
Georgia, 394 U. S. 557,
394 U. S. 569
(1969) (STEWART, J., concurring in result).
Cf. Chimel v.
California, supra; Warden v. Hayden, supra; Frazier v. Cupp,
supra. Apparently the majority agrees, for it lumps
plain-sight seizures in such circumstances along with other
situations where seizures are made after a legal entry.
In all of these situations, it is apparent that seizure of
evidence without a warrant is not itself an invasion either of
personal privacy or of property rights beyond that already
authorized by law. Only the possessory interest of a defendant in
his effects is implicated. And in these various circumstances, at
least where the discovery of evidence is "inadvertent," the Court
would permit the seizure because, it is said, "the minor peril to
Fourth Amendment protections" is overridden by the "major gain in
effective law enforcement" inherent in
Page 403 U. S. 516
avoiding the "needless inconvenience" of procuring a warrant.
Ante at
403 U. S. 467,
403 U. S. 468.
I take this to mean that both the possessory interest of the
defendant and the importance of having a magistrate confirm that
what the officer saw with his own eyes is, in fact, contraband or
evidence of crime are not substantial constitutional
considerations. Officers in these circumstances need neither guard
nor ignore the evidence while a warrant is sought. Immediate
seizure is justified and reasonable under the Fourth Amendment.
The Court would interpose in some or all of these situations,
however, a condition that the discovery of the disputed evidence be
"inadvertent." If it is "anticipated," that is, if "the police know
in advance the location of the evidence and intend to seize it,"
the seizure is invalid.
Id. at
403 U. S.
470.
I have great difficulty with this approach. Let us suppose
officers secure a warrant to search a house for a rifle. While
staying well within the range of a rifle search, they discover two
photographs of the murder victim, both in plain sight in the
bedroom. Assume also that the discovery of the one photograph was
inadvertent, but finding the other was anticipated. The Court would
permit the seizure of only one of the photographs. But, in terms of
the "minor" peril to Fourth Amendment values, there is surely no
difference between these two photographs: the interference with
possession is the same in each case, and the officers' appraisal of
the photograph they expected to see is no less reliable than their
judgment about the other. And, in both situations, the actual
inconvenience and danger to evidence remain identical if the
officers must depart and secure a warrant. The Court, however,
states that the State will suffer no constitutionally cognizable
inconvenience from invalidating anticipated seizures, since it had
probable cause to search
Page 403 U. S. 517
for the items seized and could have included them in a
warrant.
This seems a punitive and extravagant application of the
exclusionary rule. If the police have probable cause to search for
a photograph as well as a rifle, and they proceed to seek a
warrant, they could have no possible motive for deliberately
including the rifle but omitting the photograph. Quite the contrary
is true. Only oversight or careless mistake would explain the
omission in the warrant application if the police were convinced
they had probable cause to search for the photograph. Of course,
they may misjudge the facts and not realize they have probable
cause for the picture, or the magistrate may find against them and
not issue a warrant for it. In either event the officers may
validly seize the photograph for which they had no probable cause
to search, but the other photograph is excluded from evidence when
the Court subsequently determines that the officers, after all, had
probable cause to search for it.
More important, the inadvertence rule is unnecessary to further
any Fourth Amendment ends, and will accomplish nothing. Police with
a warrant for a rifle may search only places where rifles might be,
and must terminate the search once the rifle is found; the
inadvertence rule will in no way reduce the number of places into
which they may lawfully look. So, too the areas of permissible
search incident to arrest are strictly circumscribed by
Chimel. Excluding evidence seen from within those areas
can hardly be effective to operate to prevent wider, unauthorized
searches. If the police stray outside the scope of an authorized
Chimel search, they are already in violation of the Fourth
Amendment, and evidence so seized will be excluded; adding a second
reason for excluding evidence hardly seems worth the candle.
Perhaps the Court is concerned that officers, having the
Page 403 U. S. 518
right to intrude upon private property to make arrests, will use
that right as a pretext to obtain entry to search for objects in
plain sight,
cf. Chimel v. California, supra, at
395 U. S. 767,
but, if so, such a concern is unfounded. The reason is that, under
Chimel, the police can enter only into those portions of
the property into which entry is necessary to effect the arrest.
Given the restrictions of
Chimel, the police face a
substantial risk that, in effecting an arrest and a search incident
thereto, they will never enter into those portions of the property
from which they can plainly see the objects for which they are
searching, and that, if they do not, those objects will be
destroyed before they can return and conduct a search of the entire
premises pursuant to a warrant. If the police, in fact, possess
probable cause to believe that weapons, contraband, or evidence of
crime is in plain view on the premises, it will be far safer to
obtain a search warrant than to take a chance that, in making an
arrest, they will come into plain view of the object they are
seeking. It is only when they lack probable cause for a search --
when, that is, discovery of objects in plain view from a lawful
vantage point is inadvertent -- that entry to make an arrest might,
as a practical matter, assist the police in discovering an object
for which they could not have obtained a warrant. But the majority,
in that circumstance, would uphold their authority to seize what
they see. I thus doubt that the Court's new rule will have any
measurable effect on police conduct. It will merely attach undue
consequences to what will most often be an unintended mistake or a
misapprehension of some of this Court's probable cause decisions, a
failing which, I am afraid, we all have.
By invalidating otherwise valid, plain-sight seizures where
officers have probable cause and presumably, although the Court
does not say so, opportunity to secure a warrant, the Court seems
to turn in the direction of
Page 403 U. S. 519
the
Trupiano rule, rejected in
Rabinowitz and
not revived in
Chimel. But it seems unsure of its own
rule.
It is careful to note that Coolidge's car is not contraband,
stolen, or, in itself, dangerous. Apparently, contraband, stolen,
or dangerous materials may be seized when discovered in the course
of an otherwise authorized search even if the discovery is fully
anticipated and a warrant could have been obtained. The distinction
the Court draws between contraband and mere evidence of crime is
reminiscent of the confusing and unworkable approach that I thought
Warden v. Hayden, supra, had firmly put aside.
Neither does the Court in so many words limit
Chimel;
on the contrary, it indicates that warrantless
Chimel-type
searches will not be disturbed, even if the police "anticipate that
they will find specific evidence during the course of such a
search."
Ante at
403 U. S. 482.
The Court also concedes that, when an arresting officer
"comes within plain view of a piece of evidence, not concealed,
although outside of the area under the immediate control of the
arrestee, the officer may seize it, so long as the plain view was
obtained in the course of an appropriately limited search of the
arrestee."
Id. at
403 U. S. 466
n. 24. Yet today's decision is a limitation on
Chimel,
for, in the latter example, the Court would permit seizure only if
the plain view was inadvertently obtained. If the police, that is,
fully anticipate that, when they arrest a suspect as he is entering
the front door of his home, they will find a credit card in his
pocket and a picture in plain sight on the wall opposite the door,
both of which will implicate him in a crime, they may, under
today's decision, seize the credit card but not the picture. This
is a distinction that I find to be without basis, and that the
Court makes no attempt to explain. I can therefore conclude only
that
Chimel and today's holding are squarely inconsistent,
and that the Court, unable to perceive
Page 403 U. S. 520
any reasoned distinction, has abandoned any attempt to find
one.
The Court also fails to mention searches carried out with
third-party consent. Assume for the moment that authorities are
reliably informed that a suspect, subject to arrest but not yet
apprehended, has concealed specified evidence of his crime in the
house of a friend. The friend freely consents to a search of his
house, and accompanies the officers in the process. The evidence is
found precisely where the officers were told they would find it,
and the officers proceed to seize it, aware, however, that the
friend lacks authority from the suspect to confer possession on
them. The suspect's interest in not having his possession forcibly
interfered with in the absence of a warrant from a magistrate is
identical to the interest of Coolidge, and one would accordingly
expect the Court to deal with the question.
Frazier v. Cupp,
supra, indicates that a seizure in these circumstances would
be lawful, and the Court today neither overrules nor distinguishes
Frazier; in fact, Part III of the Court's opinion, which
discusses the officers' receipt of Coolidge's clothing and weapons
from Mrs. Coolidge, implicitly approves
Frazier.
Neither does the Court indicate whether it would apply the
inadvertence requirement to searches made in public places,
although one might infer from its approval of
United States v.
Lee, supra, which held admissible a chemical analysis of
bootleg liquor observed by revenue officers in plain sight, that it
would not.
Aware of these inconsistencies, the Court admits that "it would
be nonsense to pretend that our decision today reduces Fourth
Amendment law to complete order and harmony."
Ante at
403 U. S. 483.
But it concludes that logical consistency cannot be attained in
constitutional law, and ultimately comes to rest upon its belief
"that the result reached in this case is correct. . . ."
Id. at
403 U. S. 484.
It
Page 403 U. S. 521
may be that constitutional law cannot be fully coherent, and
that constitutional principles ought not always be spun out to
their logical limits, but this does not mean that we should cease
to strive for clarity and consistency of analysis. Here, the Court
has a ready opportunity, one way or another, to bring clarity and
certainty to a body of law that lower courts and law enforcement
officials often find confusing. Instead, without apparent reason,
it only increases their confusion by clinging to distinctions that
are both unexplained and inexplicable.
II
In the case before us, the officers had probable cause both to
arrest Coolidge and to seize his car. In order to effect his
arrest, they went to his home -- perhaps the most obvious place in
which to look for him. They also may have hoped to find his car at
home and, in fact, when they arrived on the property to make the
arrest, they did find the 1951 Pontiac there. Thus, even assuming
that the Fourth Amendment protects against warrantless seizures
outside the house,
but see Hester v. United States, supra,
at
265 U. S. 59, the
fact remains that the officers had legally entered Coolidge's
property to effect an arrest, and that they seized the car only
after they observed it in plain view before them. The Court,
however, would invalidate this seizure on the premise that officers
should not be permitted to seize effects in plain sight when they
have anticipated they will see them.
Even accepting this premise of the Court, seizure of the car was
not invalid. The majority makes an assumption that, when the police
went to Coolidge's house to arrest him, they anticipated that they
would also find the 1951 Pontiac there. In my own reading of the
record, however, I have found no evidence to support this
assumption. For all the record shows, the police, although they may
have hoped to find the Pontiac at
Page 403 U. S. 522
Coolidge's home, did not know its exact location when they went
to make the arrest, and their observation of it in Coolidge's
driveway was truly inadvertent. Of course, they did have probable
cause to seize the car, and, if they had had a valid warrant as
well, they would have been justified in looking for it in
Coolidge's driveway -- a likely place for it to be. But if the fact
of probable cause bars this seizure, it would also bar seizures not
only of cars found at a house, but also of cars parked in a parking
lot, hidden in some secluded spot, or delivered to the police by a
third party at the police station. This would simply be a rule that
the existence of probable cause bars all warrantless seizures.
It is evident on the facts of this case that Coolidge's Pontiac
was subject to seizure if proper procedures were employed. It is
also apparent that the Pontiac was in plain view of the officers
who had legally entered Coolidge's property to effect his arrest. I
am satisfied that it was properly seized whether or not the
officers expected that it would be found where it was. And, since
the Pontiac was legally seized as evidence of the crime for which
Coolidge was arrested,
Cooper v. California, supra,
authorizes its warrantless search while in lawful custody of the
police.
"It would be unreasonable to hold that the police, having to
retain the car in their custody for such a length of time, had no
right, even for their own protection, to search it. It is no answer
to say that the police could have obtained a search warrant, for
'[t]he relevant test is not whether it is reasonable to procure a
search warrant, but whether the search was reasonable.'. . . Under
the circumstances of this case, we cannot hold unreasonable under
the Fourth Amendment the examination or search of a car validly
held by officers for use as evidence. . . ."
Cooper v. California, supra, at
386 U. S.
61-62.
Page 403 U. S. 523
III
Given the foregoing views, it is perhaps unnecessary to deal
with the other grounds offered to sustain the search of Coolidge's
car. Nonetheless, it may be helpful to explain my reasons for
relying on the plain-sight rule, rather than on
Chambers v.
Maroney, 399 U. S. 42
(1970), to validate this search.
Chambers upheld the seizure and subsequent search of
automobiles at the station house, rather than requiring the police
to search cars immediately at the places where they are found. But
Chambers did not authorize indefinite detention of
automobiles so seized; it contemplated some expedition in
completing the searches, so that automobiles could be released and
returned to their owners. In the present case, however, Coolidge's
Pontiac was not released quickly, but was retained in police
custody for more than a year, and was searched not only immediately
after seizure, but also on two other occasions: one of them 11
months and the other 14 months after seizure. Since fruits of the
later searches as well as the earlier one were apparently
introduced in evidence, I cannot look to
Chambers, and
would invalidate the later searches but for the fact that the
police had a right to seize and detain the car not because it was a
car, but because it was itself evidence of crime. It is only
because of the long detention of the car that I find
Chambers inapplicable, however, and I disagree strongly
with the majority's reasoning for refusing to apply it.
As recounted earlier, arrest and search of the person on
probable cause but without a warrant is the prevailing
constitutional and legislative rule, without regard to whether, on
the particular facts, there was opportunity to secure a warrant.
Apparently, exigent circumstances are so often present in arrest
situations that it has been
Page 403 U. S. 524
deemed improvident to litigate the issue in every case.
In similar fashion, "practically since the beginning of the
Government," Congress and the Court have recognized
"a necessary difference between a search of a store, dwelling
house or other structure in respect of which a proper official
warrant readily may be obtained, and a search of a ship, motor
boat, wagon or automobile, for contraband goods, where 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."
Carroll v. United States, 267 U.
S. 132,
267 U. S. 153
(1925). As in the case of an arrest and accompanying search of a
person, searches of vehicles on probable cause but without a
warrant have been deemed reasonable within the meaning of the
Fourth Amendment without requiring proof of exigent circumstances
beyond the fact that a movable vehicle is involved. The rule has
been consistently recognized,
see Cooper v. California, supra;
Brinegar v. United States, 338 U. S. 160
(1949);
Harris v. United States, supra, at
390 U. S. 168
(dissenting opinion);
Davis v. United States, 328 U.
S. 582,
328 U. S. 609
(1946) (dissenting opinion);
Scher v. United States,
305 U. S. 251
(1938);
Husty v. United States, 282 U.
S. 694 (1931);
United States v. Lee, supra; and
was reaffirmed less than a year ago in
Chambers v. Maroney,
supra, where a vehicle was stopped on the highway but was
searched at the police station, there being probable cause but no
warrant.
The majority now approves warrantless searches of vehicles in
motion when seized. On the other hand, warrantless, probable cause
searches of parked but movable vehicles in some situations would be
valid only upon proof of exigent circumstances justifying the
search. Although I am not sure, it would seem that, when police
discover a parked car that they have probable cause to search, they
may not immediately search but must seek
Page 403 U. S. 525
a warrant. But if, before the warrant arrives, the car is put in
motion by its owner or others, it may be stopped and searched on
the spot or elsewhere. In the case before us, Coolidge's car,
parked at his house, could not be searched without a valid warrant,
although, if Coolidge had been arrested as he drove away from his
home, immediate seizure and subsequent search of the car would have
been reasonable under the Fourth Amendment.
I find nothing in the language or the underlying rationale of
the line of cases from
Carroll to
Chambers
limiting vehicle searches as the Court now limits them in
situations such as the one before us. Although each of those cases
may, as the Court argues, have involved vehicles or vessels in
motion prior to their being stopped and searched, each of them
approved the search of a vehicle that was no longer moving and,
with the occupants in custody, no more likely to move than the
unattended but movable vehicle parked on the street or in the
driveway of a person's house. In both situations, the probability
of movement at the instance of family or friends is equally real,
and hence the result should be the same whether the car is at rest
or in motion when it is discovered.
In
Husty v. United States, supra, the police had
learned from a reliable informant that Husty had two loads of
liquor in automobiles of particular make and description parked at
described locations. The officers found one of the cars parked and
unattended at the indicated spot. Later, as officers watched, Husty
and others entered and started to drive away. The car was stopped
after having moved no more than a foot or two; immediate search of
the car produced contraband. Husty was then arrested. The Court, in
a unanimous opinion, sustained denial of a motion to suppress the
fruits of the search, saying that
"[t]he Fourth Amendment does not prohibit the search, without
warrant, of an automobile, for liquor illegally
Page 403 U. S. 526
transported or possessed, if the search is upon probable cause.
. . ."
Id. at
282 U. S. 700.
Further,
"[t]he search was not unreasonable because, as petitioners
argue, sufficient time elapsed between the receipt by the officer
of the information and the search of the car to have enabled him to
procure a search warrant. He could not know when Husty would come
to the car or how soon it would be removed. In such circumstances,
we do not think the officers should be required to speculate upon
the chances of successfully carrying out the search, after the
delay and withdrawal from the scene of one or more officers which
would have been necessary to procure a warrant. The search was,
therefore, on probable cause, and not unreasonable. . . ."
Id. at
282 U. S.
701.
The Court apparently cites
Husty with approval as
involving a car in motion on the highway. But it was obviously
irrelevant to the Court that the officers could have obtained a
warrant before Husty attempted to drive the car away. Equally
immaterial was the fact that the car had moved one or two feet at
the time it was stopped. The search would have been approved even
if it had occurred before Husty's arrival, or after his arrival but
before he had put the car in motion. The Court's attempt to
distinguish
Husty on the basis of the car's negligible
movement prior to its being stopped is without force.
The Court states flatly, however, that this case is not ruled by
the
Carroll-Chambers line of cases but by
Dyke v.
Taylor Implement Mfg. Co., 391 U. S. 216
(1968). There, the car was properly stopped and the occupants
arrested for reckless driving, but the subsequent search at the
station house could not be justified as incident to the arrest.
See Preston v. United States, 376 U.
S. 364 (1964). Nor could the car itself be seized and
later searched, as it was, absent probable cause to believe it
contained evidence of crime. In
Dyke, it was pointed
out
Page 403 U. S. 527
that probable cause did not exist at the time of the search, and
we expressly rested our holding on this fact, noting that, "[s]ince
the search was not shown to have been based upon sufficient cause,"
it was not necessary to reach other grounds urged for invalidating
it. 391 U.S. at
391 U. S. 222.
Given probable cause, however, we would have upheld the search in
Dyke.
For Fourth Amendment purposes, the difference between a moving
and movable vehicle is tenuous, at best. It is a metaphysical
distinction without roots in the common sense standard of
reasonableness governing search and seizure cases. Distinguishing
the case before us from the
Carroll-Chambers line of cases
further enmeshes Fourth Amendment law in litigation breeding
refinements having little relation to reality. I suggest that, in
the interest of coherence and credibility, we either overrule our
prior cases and treat automobiles precisely as we do houses or
apply those cases to readily movable as well as moving vehicles,
and thus treat searches of automobiles as we do the arrest of a
person. By either course, we might bring some modicum of certainty
to Fourth Amendment law and give the law enforcement officers some
slight guidance in how they are to conduct themselves.
I accordingly dissent from Parts II-B, II-C, and II-D of the
Court's opinion. I concur, however, in the result reached in Part
III of the opinion. I would therefore affirm the judgment of the
New Hampshire Supreme Court.
[
Footnote 3/1]
This was the common law rule. 1 J. Stephen, A History of
Criminal Law of England 193 (1883); 2 M. Hale, Historia Placitorum
Coronae 72-104 (new ed. 1800). It is also the constitutional rule.
In
Carroll v. United States, 267 U.
S. 132 (1925), the Court said that
"[t]he usual rule is that a police officer may arrest without
warrant one believed by the officer upon reasonable cause to have
been guilty of a felony. . . ."
Id. at
267 U. S. 156.
There, in September, 1921, officers had probable cause to believe
the two defendants were unlawfully transporting bootleg liquor, but
they had neither effected an immediate arrest nor sought a warrant.
Several months later, they observed the two men driving on a public
highway, stopped, and searched the car and arrested the men, and
this Court sustained both the search and the arrest. So also in
Trupiano v. United States, 334 U.
S. 699 (1948), officers were amply forewarned of
criminal activities, and had time to seek a warrant, but did not do
so. Instead, some time later, they entered on property where
Trupiano had a still and found exactly what they expected to find
-- one of the defendants engaged in the distillation of bootleg
liquor. His arrest without a warrant was sustained, the Court
saying that "[t]he absence of a warrant of arrest, even though
there was sufficient time to obtain one, [did] not destroy the
validity of an arrest" in the circumstances of the case.
Id. at
334 U. S.
705.
The judgment of Congress also is that federal law enforcement
officers may reasonably make warrantless arrests upon probable
cause. It has authorized such arrests by United States Marshals,
agents of the Federal Bureau of Investigation and of the Secret
Service, and narcotics law enforcement officers.
See Act
of June 15, 1935, § 2, 49 Stat. 378, as amended, 18 U.S.C. § 3053;
Act of June 18, 1934, 48 Stat. 1008, as amended, 18 U.S.C. § 3052;
Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S.C. § 3056
(1964 ed., Supp. V); Act of July 18, 1956, Tit. I, § 104(a), 70
Stat. 570, as amended, 26 U.S.C. § 7607(2). And, in 1951, Congress
expressly deleted from the authority to make warrantless arrests a
preexisting statutory restriction barring them in the absence of a
likelihood that the person would escape before a warrant could be
obtained.
See Act of Jan. 10, 1951, § 1, 64 Stat. 1239;
S.Rep. No. 2464, 81st Cong., 2d Sess., 2 (1950); H.R.Rep. No. 3228,
81st Cong., 2d Sess., 2 (1950);
Chimel v. California,
395 U. S. 752,
395 U. S.
776-780 (1969) (dissenting opinion).
The majority now suggests that warrantless, probable cause
arrests may not be made in the home absent exigent circumstances.
Jones v. United States, 357 U. S. 493
(1958), invalidated a forcible nighttime entry to effect a search
without a warrant and suggested also that the particular
circumstances of the entry would have posed a serious Fourth
Amendment issue if the purpose of the entry had been to make an
arrest. But, as a constitutional matter, the Court has never held
or intimated that all probable cause arrests without a warrant in
the home must be justified by exigent circumstances other than the
necessity for arresting a felon, or that, if the elapsed time
between the accrual of probable cause and the making of the arrest
proves sufficient to have obtained a warrant, the arrest is
invalid. On the contrary, many cases in this Court have proceeded
on the assumption that ordinarily warrantless arrests on probable
cause may be effected even in the home.
See Sabbath v. United
States, 391 U. S. 585
(1968);
Miller v. United States, 357 U.
S. 301,
357 U. S.
305-308 (1958);
United States v. Rabinowitz,
339 U. S. 56,
339 U. S. 60
(1950) (dictum);
Trupiano v. United States, supra; Johnson v.
United States, 333 U. S. 10,
333 U. S. 15
(1948) (dictum). Of course, this is not to say that the time and
method of entry could never pose serious constitutional questions
under the Fourth Amendment.
[
Footnote 3/2]
Lee permitted the revenue officers who seized the boat
to take and chemically analyze bootleg liquor found aboard it and
then to testify as to the results of their analysis.