Chapman v. United States (365 U.S. 610)/Concurrence Frankfurter

Mr. Justice FRANKFURTER, concurring in the judgment.

Since searches and seizures play such a frequent role in federal criminal trials, it is most important that the law on searches and seizures by which prosecutors and trial judges are to be guided should be as clear and unconfusing as the nature of the subject matter permits. The course of true law pertaining to searches and seizures, as enunciated here, has not-to put it mildly-run smooth. The Court's opinion in this case is hardly calculated, I regret to say, to contribute to clarification. The reasoning by which the Court reaches its result would be warranted were Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, still law. While the Court does not explicitly rely on it, underlying the present decision is the approach of Trupiano. That decision was a shortlived deviation from the course of decisions preceding it and it was specifically overruled by United States v. Rabinowitz, 1950, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653. Since the Rabinowitz case expresses the prevailing view, the decision in this case runs counter to it. The Court does rely on Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, although that case was seriously impaired by Rabinowitz, 339 U.S. at page 66, 70 S.Ct. at page 435, dissenting opinion, 339 U.S. at page 85, 70 S.Ct. at page 444.

Surely it is fair to say that the lower courts and prosecutors have a right to proceed on the assumption, on the basis of controlling decisions, that whether or not a search is 'unreasonable' turns on the circumstances presented by a particular situation, as a matter of substantive determination. On that test, I find it very difficult to conclude that a police officer may not deem adequate the authorization of a landlord to enter his house without a search warrant where he has solid ground for believing that his lessee is utilizing the house as an illegal distillery. It seems to me that it is not at all 'unreasonable' not to charge a local police officer with knowledge of the law of Georgia regarding the power of a landlord to abate a nuisance in his house. Apart from charging a policeman with knowledge of the local law relating to landlord and tenant, he certainly would not acquire that knowledge by reading the only Georgia case to which the Court's opinion refers, Kilgore v. Paschall, 202 Ga. 416, 43 S.E.2d 520, a case which deals with the procedure of a solicitor general of a Georgia circuit in abating a nuisance by an injunction and tells nothing about the remedy of self-help by a landlord.

In joining the Court's judgment, I do so on the basis of the views set forth in my dissents in Davis v. United States, 328 U.S. 582, 594, 66 S.Ct. 1256, 1262, 90 L.Ed. 1453; Zap v. United States, 328 U.S. 624, 630, 66 S.Ct. 1277, 1280, 90 L.Ed. 1477; Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399; United States v. Rabinowitz, supra, 339 U.S. at page 68, 70 S.Ct. at page 445. As these opinions elucidate, the Fourth Amendment incorporates a guiding history that gives meaning to the phrase 'unreasonable searches and seizures' contained within it far beyond the meaning of the phrase in isolation and taken from the context of that history and its gloss upon the Fourth Amendment. The Amendment in its entirety in the setting of that history decidedly does not leave the phrase 'unreasonable searches and seizures' at large.

Mr. Justice CLARK, dissenting.