Von Cleef v. New Jersey/Concurrence Harlan

Mr. Justice HARLAN, concurring in the result.

Unfortunately, I remain unconvinced that the search in this case may be properly distinguished from the search tolerated by the Court in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). Nor do I believe that our decision in Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957) proscribes this search. Kremen simply prohibits the police from seizing the entire contents of a building indiscriminately, without considering whether the property they take is relevant to the crime under investigation; it does not bar the removal of all property that may reasonably be considered evidence of crime. The Appellate Division of the New Jersey Superior Court properly found that the police in the case before us did not engage in the practice condemned in Kremen: '(T)he search was extensive, but under the circumstances it was reasonable * *  * the items searched for and seized related to the criminal operation for which the arrest had been made.' (Emphasis supplied.) Surely, there is no reason to condemn a search as resulting in a 'mass seizure' simply because it uncovers abundant evidence of wrongdoing. And yet, that is what the Court does today in relying on Kremen to decide this case.

Consequently I am obliged to reach the question whether the stricter Fourth Amendment standards announced today in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, govern this case; for in my view, it is only if Chimel is applicable that we may legitimately reverse the judgment of the New Jersey courts. Since I have reached the conclusion that all cases still subject to direct review by this Court should be governed by any 'new' rule of constitutional law announced in our decisions, see my dissent in Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 1038, 22 L.Ed.2d 248 (1969), I join in the Court's judgment.