Hill v. California/Concurrence Black

Mr. Justice BLACK concurs in the result.

Mr. Justice DOUGLAS took no part in the consideration or the decision of this case.

Mr. Justice HARLAN, whom Mr. Justice MARSHALL joins, concurring in part and dissenting in part.

I agree with the Court's opinion except for its conclusion that the Chimel case is not to be applied to this one.

Two Terms ago, in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), we held that a search without a warrant, but incident to a lawful arrest, must be narrowly confined in scope if it is to pass constitutional muster. In such circumstances, we said:

'There 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.

'There 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. The 'adherence to judicial processes' mandated by     the Fourth Amendment requires no less.' 395 U.S., at 763, 89      S.Ct., at 2040 (footnote omitted).

The search here involved, fully described in the Court's opinion plainly exceeded the bounds set forth in Chimel. The State contends that the search here was consistent with Chimel because conducted in the evening when it was not possible to obtain a search warrant. Whatever validity such a limiting principle might have in other contexts, it certainly cannot properly be invoked here. Baum and Bader had implicated Hill at least 24 hours prior to the search of Hill's apartment. Moreover, the State does not explain why it would not have been possible to observe the apartment after the mistaken arrest of Miller as Hill and then test before a magistrate the validity of their belief that they had probable cause for the issuance of a warrant authorizing a complete search of the apartment.

Because I believe this case reveals an obvious violation of Chimel and because I consider we are duty bound to apply the principles there enunciated to cases, like this one, before us on direct review, see my separate opinion in Mackey v. United States (and companion cases), 401 U.S. 667, 675, 91 S.Ct. 1148, 1171, 28 L.Ed.2d 404 (1971), decided today, I am compelled to cast my vote for reversal of the judgment of the Supreme Court of California.