Frank v. Maryland/Dissent Douglas

Mr. Justice DOUGLAS, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.

The decsio n today greatly dilutes the right of privacy which every homeowner had the right to believe was part of our American heritage. We witness indeed an inquest over a substantial part of the Fourth Amendment.

The question in this case is whether a search warrant is needed to enter a citizen's home to investigate sanitary conditions. The Court holds that no search warrant is needed, that a knock on the door is all that is required, that for failure of the citizen to open the door he can be punished. From these conclusions I am forced to dissent.

The Due Process Clause of the Fourteenth Amendment enjoins upon the States the guarantee of privacy embodied in the Fourth Amendment (Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359)-whatever may be the means established under the Fourth Amendment to enforce that guarantee. The Court now casts a shadow over that guarantee as respects searches and seizures in civil cases. Any such conclusion would require considerable editing and revision of the Fourth Amendment. For by its terms it protects the citizen against unreasonable searches and seizures by government, whatever may be the complaint. The words are broad and inclusive:

'The right of the people to be secure in their persons,     houses, papers, and effects, against unreasonable searches      and seizures, shall not be violated, and no Warrants shall      issue, but upon probable cause, supported by Oath or      affirmation, and particularly describing the place to be      searched, and the persons or things to be seized.' The Court said in Wolf v. Colorado, supra, 338 U.S. at page 27, 69 S.Ct. at page 1361, that 'The security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society.' Now that resounding phrase is watered down to embrace only certain invasions of one's privacy. If officials come to inspect sanitary conditions, they may come without a warrant and demand entry as of right. This is a strange deletion to make from the Fourth Amendment. In some States the health inspectors are none other than the police themselves. In some States the presence of unsanitary conditions gives rise to criminal prosecutions. Baltimore City Code, Art. 12, §§ 112 and 119-the one involved in the present case-makes the failure to abate a nuisance a misdemeanor. The knock on the door in any health inspection case may thus lay the groundwork for a criminal prosecution. The resistance of the citizen in the present case led to the imposition of a fine. If a fine may be imposed, why not a prison term?

It is said, however, that this fine is so small as to amount only to an assessment to cover the costs of the inspection. Yet if this fine can be imposed, the premises can be revisited without a warrant and repeated fines imposed. The truth is that the amount of the fine is not the measure of the right. The right is the guarantee against invasion of the home by officers without a warrant. No officer of government is authorized to penalize the citizen because he invokes his constitutional protection.

Moreover, the protection of the Fourth Amendment has heretofore been thought to protect privacy when civil litigation, as well as criminal prosecutions, was in the offing. Why otherwise the great care exercised by the Court in restricting agencies like the Federal Trade Commission in making investigations in support of their power to issue cease and desist orders? Fear of trespassing on Fourth Amendment rights was expressly made the ground for a narrow reading of statutory powers in Federal Trade Comm. v. American Tobacco Co., 264 U.S. 298, 307, 44 S.Ct. 336, 337, 68 L.Ed. 696. The 'fishing expeditions' there condemned, Id., 264 U.S. at page 306, 44 S.Ct. at page 337, led no more directly to possible criminal prosecutions than the knock on the door in the present case.

The Court misreads history when it relates the Fourth Amendment primarily to searches for evidence to be used in criminal prosecutions. That certainly is not the teaching o En tick v. Carrington, 19 Howell's St. Tr. col. 1029. At that time 1765-it was the search for the nonconformist that led British officials to ransack private homes. The commands of our First Amendment (as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but 'conscience and human dignity and freedom of expression as well.' See Ullmann v. United States, 350 U.S. 422, 445 et seq., 76 S.Ct. 497, 510, 100 L.Ed. 511 (dissent); Feldman v. United States, 322 U.S. 487, 499, 64 S.Ct. 1082, 1087, 88 L.Ed. 1408. It is only in that setting that Entick v. Carrington, supra, can be understood, as evidenced by Lord Camden's long review of the oppressive practices directed at the press by the Star Chamber, the Long Parliament, and the Licensing Acts. 19 Howell's St. Tr. cols. 1069-1072. It was in the setting of freedom of expression that Lord Camden denounced the general warrants. Taylor, The American Constitution (1911), p. 234, gives the correct interpretation of that historical episode:

'In the effort to destroy the freedom of the press, by a     strained exercise of the prerogative a general warrant was      issued in 1763 for the discovery and apprehension of the      authors and printers (not named) of the obnoxious No. 45 of      the North Briton, which commented in severe and offensive      terms on the King's Speech at the prorogation of Parliament and upon the      unpopular Peace of Paris recently (February 10, 1763)      concluded. Forty-nine persons, including Wilkes, were     arrested under the general warrant; and when it was      ascertained that Wilkes was the author, an information for      libel was filed against him on which a verdict was obtained. In suits afterward brought against the Under- Secretary of     State who had issued the general warrant, Wilkes, and Dryden      Leach, one of the printers arrested on suspicion, obtained      verdicts for damages. When the matter came before the King's     Bench in 1765, Lord Mansfield and the other three judges      pronounced the general warrant illegal, declaring that 'no      degree of antiquity could give sanction to a usage bad in      itself." And see 2 Paterson, Liberty of the Subject (1877),      pp. 129-132.

This history, also recounted in Boyd v. United States, 116 U.S. 616, 625-626, 6 S.Ct. 524, 529, was, in the words of Mr. Justice Bradley 'fresh in the memories of those who achieved our independence and established our form of government.' The Fourth Amendment thus has a much wider frame of reference than mere criminal prosecutions.

The fallacy in maintaining that the Fourth Amendment was designed to protect criminals only was emphasized by Judge Prettyman in District of Columbia v. Little, 85 U.S.App.D.C. 242, 178 F.2d 13, 16-17, 13 A.L.R.2d 954, affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599:

'The argument is wholly without merit, preposterous in fact. The basic premise of the prohibition against searches was not     protection against self-incrimination; it was the common-law      right of a man to privacy in his home, a right which is one      of the indispensable ultimate essentials of our concept of      civilization. It was firmly established in the common law as one of the bright features of the Anglo-Saxon     contributions to human progress. It was not related to crime     or to suspicion of crime. It belonged to all men, not merely     to criminals, real or suspected. So much is clear from any     examination of history, whether slight or exhaustive. The     argument made to us has not the slightest basis in history. It has no greater justification in reason. To say that a man     suspected of crime has a right to protection against search      of his home without a warrant, but that a man not suspected      of crime has no such protection, is a fantastic absurdity.'

Judge Prettyman added that the Fourth Amendment applied alike to health inspectors as well as to police officers-indeed to every and any official of government seeking amis sion to any home in the country:

'We emphasize that no matter who the officer is or what his     mission, a government official cannot invade a private home,      unless (1) a magistrate has authorized him to do so or (2) an      immediate major crisis in the performance of duty affords      neither time nor opportunity to apply to a magistrate. This     right of privacy is not conditioned upon the objective, the      prerogative or the stature of the intruding officer. His     uniform, badge, rank, and the bureau from which he operates      are immaterial. It is immaterial whether he is motivated by     the highest public purpose or by the lowest personal spite.'      Id., 178 F.2d at 17. And see 44 Ill.L.Rev. 845.

The well-known protest of the elder Pitt against invasion of the home by the police, had nothing to do with criminal proceedings.

'The poorest man may in his cottage bid defiance to all the     force of the Crown. It may be frail-its roof may shake-the wind may blow through it-the storm may enter,     the rain may enter-but the King of England cannot enter-all      his force dares not cross the threshold of the ruined      tenement!'

While this statement did not specifically refer to the general warrant, it was said in reference to the danger of excise officers entering private homes to levy the 'Cyder Tax.' 15 Hansard, Parliamentary History of England (1753-1765) p. 1307.

Some of the statutes which James Otis denounced did not involve criminal proceedings. They in the main regulated customs and allowed forfeitures of goods shipped into the Colonies in violation of English shipping regulations. The twenty-dollar forfeiture involved here is no different in substance from the ones that Otis and the colonists found so objectionable. For their objection went not to the amount or size of the forfeiture but to the lawless manner in which it was collected. 'Every man prompted by revenge, ill humour, or wantonness to inspect the inside of his neighbor's house, may get a writ of assistance.' Tudor, Life of James Otis (1823), p. 68. It was not the search that was vicious. It was the absence of a warrant issued on a showing of probable cause that Otis denounced-the precise situation we have here:

'Now one of the most essential branches of English liberty is     the freedom of one's house. A man's house is his castle; and     whilst he is quiet, he is as well guarded as a prince in his      castle. This writ, if it should be declared legal, would     totally annihilate this privilege. Customhouse officers may     enter our houses when they please; we are commanded to permit      their entry. Their menial servants may enter, may break     locks, bars, and every thing in their way: and whether they break through malice or revenge, no man, no      court, can inquire. Bare suspicion without oath is     sufficient.' Id., at 66-67.

The philosophy of the Fourth Amendment was well expressed by Mr. Justice Butler speaking for the Court in Agnello v. United States, 269 U.S. 20, 32, 46 S.Ct. 4, 6, 70 L.Ed. 145. 'The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws.' We have emphasized over and again that a search without a warrant can be made only in exceptional circumstances. If a house is on fire or if the police see a fugitive enter a building, entry without a search warrant can of course be made. Yet absent such extraordinary situations, the right of privacy must yield only when a judicial officer issues a warrant for a search on a showing of probable cause. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436; Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663; McDonald v. United States, 335 U.S. 451, 454-455, 69 S.Ct. 191, 192-193, 93 L.Ed. 153. As we said in McDonald v. United States, supra, 335 U.S. 455-456, 69 S.Ct. at page 193:

'The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has intrpo     sed a magistrate between the citizen and the police. This was     done not to shield criminals nor to make the home a safe      haven for illegal activities. It was done so that an     objective mind might weigh the need to invade that privacy in      order to enforce the law. The right of privacy was deemed too     precious to entrust to the discretion of those whose job is      the detection of crime and the arrest of criminals. Power is     a heady thing; and history shows that the police acting on      their own cannot be trusted. And so the Constitution requires     a magistrate to pass on the desires of the police before they      violate the privacy of the home. We cannot be true to that     constitutional requirement and excuse the absence of a search warrant without a showing by those      who seek exemption from the constitutional mandate that the      exigencies of the situation made that course imperative.'

In the present case, the homeowner agreed to let the inspector in, if he got a search warrant. But none was ever sought. No excuse exists here for not getting a search warrant. A whole day elapsed between the first inspection and the arrest. The only reason given for not getting a warrant was the officer's convenience:

'Q. Could you not just as well have made your inspection one     hour or two hours later than at the time you demanded entry? A. I could not. I had two students I had to release at three     o'clock. I have to be in the office at three-thirty every day     to take care of my reports.'

That is indeed flimsy ground for denying this homeowner the constitutional protection afforded by a search warrant.

We have as little reason for excluding this search from the Fourth Amendment as we would for limiting that Amendment to the kinds of warrants James Otis inveighed against-the writs of assistance and the general warrants. Cf. On Lee v. United States, 343 U.S. 747, 762, 72 S.Ct. 967, 976, 96 L.Ed. 1270; Schwartz v. Texas, 344 U.S. 199, 205, 73 S.Ct. 232, 236, 97 L.Ed. 231. For as Chief Justice Vinson wrote in Nueslein v. District of Columbia, 73 App.D.C. 85, 87, 115 F.2d 690, 692, while the Fourth Amendment 'was written against the background of the general warrants in England and the writs of assistance in the American colonies,' it 'gives a protection wider than these abuses.' See 2 Ala.L.Rev. 314; 3 Vand.L.Rev. 820; 63 Harv.L.Rev. 349. It was designed to protect the citizen against uncontrolled invasion of his privacy. It does not make the home a place of refuge from the law. It only requires the sanction of the judiciary rather than the executive before that privacy may be invaded. History shows that all officers tend to be officious; and health inspectors, making out a case for criminal prosecution of the citizen, are no exception.

We live in an era 'when politically controlled officials have grown powerful through an ever increasing series of minor infractions of civil liberties.' 17 U. of Chi.L.Rev. 733, 740. One invasion of privacy by an official of government can be as oppressive as another. Health inspections are important. But they are hardly more important than the search for narcotic peddlers, rapists, kidnappers, murderers, and other criminal elements. As we have seen, searches were once in their heyday when the government was out to suppress the nonconformists. That is the true explanation of Entick v. Carrington, supra. Many today would think that the search for subversives was even more important than the search for unsanitary conditions. It would seem that the public interest It would seem that the public interest great in one case as in another. The fear that health inspections will suffer it constitutional safeguards are applied is strongly held by some. Like notions obtain by some law enforcement officials who take shortcuts in pursuit of criminals. The same pattern appears over and again whenever government seeks to use its compulsive force against the citizen. Legislative Committees (Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Sweezy v. New Hampshire, 354 U.S. 234 77 S.Ct. 1203, 1 L.Ed.2d 1311), one-man grand juries (In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682), fire marshals (In re Groban, 352 U.S. 330, 337, 77 S.Ct. 510, 515, 1 L.Ed.2d 376), police (Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; On Lee v. United States, supra, 343 U.S. 762, 72 S.Ct. 976; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948), sometimes seek to place their requirements above the Constitution. The official's measure of his own need often does not square with the Bill of Rights.

Certainly this is a poor case for dispensing with the need for a search warrant. Evidence to obtain one was abundant. The house was in a state of extreme decay; and in the rear of the house was a pile of 'rodent feces mixed with straw and debris to approximately half a ton.' This is not to suggest that a health official need show the same kind of proof to a magistrate to obtain a warrant as one must who would search for the fruits or instrumentalities of crime. Where considerations of health and safety are involved, the facts that would justify an inference of 'probable cause' to make an inspection are clearly different from those that would justify such an inference where a criminal investigation has been undertaken. Experience may show the need for periodic inspections of certain facilities without a further showing of cause to believe that substandard conditions dangerous to the public are being maintained. The passage of a certain period without inspection might of itself be sufficient in a given situation to justify the issuance of a warrant. The test of 'probable cause' required by the Fourth Amendment can take into account the nature of the search that is being sought. This is not to sanction synthetic search warrants but to recognize that the showing of probable cause in a health case may have quite different requirements than the one required in graver situations. It can hardly be denied, unless history is ignored, that the policeman's or the inspector's knock on the door is one of these 'official acts and proceedings' which Boyd v. United States, supra, 116 U.S. 624, 6 S.Ct. 529, brought squarely within the Fourth Amendment. That being true, it seems to us plain that there is nothing in the Fourth Amendment that relieves the health inspector altogether from making an appropriate showing to a magistrate if he would enter a private dwelling without the owner's consent.

That problem, while important overall, is not important to the situation with which we deal. Figures submitted by the Baltimore Health Department show that citizens are mostly cooperative in granting entrance to inspectors. There were 28,081 inspections in 1954; 25,021 in 1955; 35,120 in 1956; 33,573 in 1957; and 36,119 in 1958. And in all these instances the number of prosecutions was estimated to average one a year. Submission by the overwhelming majority of the populace indicates there is no peril to the health program. One rebel a year (cf. Whyte, The Organization Man) is not too great a price to pay for maintaining our guarantee of civil rights in full vigor.

England-a nation no less mindful of public health than we and keenly conscious of civil liberties-has long proceeded on the basis that where the citizen denies entrance to a health inspector, a search warrant is needed. Public Health Act of 1936, 26 Geo. 5 & 1 Edw. 8, c. 49, §§ 285-287; Vines v. Governors, 63 J.P. 244 (Q.B.1899); Robinson v. Corporatio of Sutherland, (1899) 1 Q.B. 751; Wimbledon Urban District Counsel v. Hastings, 87 L.T.Rep. (5 N.S.) 118 (K.B.1902); Consett Urban District Council v. Crawford, (1903) 2 K.B. 183; 24 Halsbury's Laws (2d ed. 1937), p. 102, note m.

We cannot do less and still be true to the command of the Fourth Amendment which protects even the lowliest home in the land from intrusion on the mere say-so of an official.