One 1958 Plymouth Sedan v. Pennsylvania/Concurrence Black

Mr. Justice BLACK, concurring.

The language of the Fourth Amendment forbids 'unreasonable searches and seizures' but it does not expressly or by implication provide that evidence secured in such a way cannot be used in a prosecution against an accused. Congress could, of course, pass a law to preclude the use of evidence so secured in the federal courts, but I do not believe this Court or any other has constitutional power to pass such a law itself. See Wolf v. People of State of Colorado, 338 U.S. 25, 39, 69 S.Ct. 1359, 1367, 93 L.Ed. 1782 (concurring opinion). For these reasons I cannot agree that because we ourselves might believe the practice of obtaining evidence in that manner 'shocks the conscience' or is 'shabby' or 'arbitrary,' we are commanded or even authorized by the Constitution to prevent its use as evidence. That seems to me to be amending the Constitution, which is the business of the people, not interpreting it, which is the business of the courts. But the Fifth Amendment does specifically provide that 'No person * *  * shall be compelled in any criminal case to be a witness against himself,' and this Court held in Boyd v. United States, 116 U.S. 616, 634-635, 6 S.Ct. 524, 534-535, 29 L.Ed. 746, that 'a compulsory production of the private books and papers of the owner of goods sought to be forfeited in * *  * a suit is compelling him to be a witness against himself, within the meaning of the fifth amendment to the constitution, and is the equivalent of a search and seizure-and an unreasonable search and seizure-within the meaning of the fourth amendment.' Boyd therefore stands for the constitutional principle that evidence secured by unreasonable search and seizure is compelled evidence, and is therefore barred from use in criminal cases by the Fifth Amendment's provision that 'No person *  *  * shall be compelled in any criminal case to be a witness against himself *  *  * .' See Rochin v. People of California, 342 U.S. 165, 174, 72 S.Ct. 205, 211, 96 L.Ed. 183 (concurring opinion). The Court in Boyd thus based its exclusion of unlawfully seized evidence squarely on the specific prohibitions of the Fourth and Fifth Amendments, and not merely on the personal predilections of judges against such use.

This Court in Mapp v. Ohio, 367 U.S. 643, 646, 81 S.Ct. 1684, 1686, 6 L.Ed.2d 1081, recognized as the Court had in Boyd that 'the fourth and fifth amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532. At the very outset of its opinion in Mapp this Court relied on and quoted at length from the opinion in the Boyd case, which had relied on the Fourth and Fifth Amendments together to forbid the use in court of evidence obtained through an unreasonable search or seizure. 367 U.S., at 646-647, 81 S.Ct. at 1686-1687. Use of such evidence, the Court said in Mapp, would be 'tantamount to coerced testimony.' 367 U.S., at 656, 81 S.Ct., at 1692. And we said last Term in Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1494, 12 L.Ed.2d 653:

'Mapp held that the Fifth Amendment privilege against     self-incrimination implemented the Fourth Amendment in such      cases, and that the two guarantees of personal security      conjoined in the Fourteenth Amendment to make the      exclusionary rule obligatory on the States. We relied upon     the great case of Boyd v. United States, 116 U.S. 616, 6      S.Ct. 524, 29 L.Ed. 746 * *  * .'

It was because of the Court's reliance on the Boyd doctrine which held that the Fourth and Fifth Amendments together barred use of unreasonably seized evidence-that I joined the Court's opinion in Mapp. See 367 U.S. 643, 661, 81 S.Ct. 1684, 1694 (concurring opinion). And for that same reason I agree with the Court today that the Fourth Amendment's protection against unlawful search and seizure and the Fifth Amendment's protection against compelled testimony apply in forfeiture proceedings like the one here. This was the holding in Boyd, which itself involved a forfeiture proceeding, and I would follow it in forfeiture proceedings as well as in criminal cases. In doing so, I recognize that this interpretation was reached in Boyd on the principle that 'constitutional provisions for the security of person and property should be liberally construed.' 116 U.S., at 635, 6 S.Ct., at 535. But that interpretive principle, I think, is a desirable one if our Constitution is to be given its proper place in our Government.

I also agree with the Court that our remand expresses no view as to whether the trial court was correct in its ruling on the issue of probable cause, and that the Supreme Court of Pennsylvania is free on remand to review the trial court's finding, and that of course, as declared in Mapp, the standard of probable cause is the same in the state courts as in the federal courts.