Warden Maryland Penitentiary v. Hayden/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

We start with the Fourth Amendment which provides:

'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.' This constitutional guarantee, now as applicable to the States (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081) as to the Federal Government, has been thought, until today, to have two faces of privacy:

(1) One creates a zone of privacy that may not be invaded by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.

(2) A second creates a zone of privacy that may be invaded either by the police in hot pursuit or by a search incident to arrest or by a warrant issued by a magistrate on a showing of probable cause.

The first has been recognized from early days in Anglo-American law. Search warrants, for seizure of stolen property, though having an ancient lineage, were criticized even by Coke. Institutes Bk. 4, pp. 176-177.

As stated by Lord Camden in Entick v. Carington, 19 How.St.Tr. 1029, 1067, even warrants authorizing seizure of stolen goods were looked upon with disfavor but 'crept into the law by imperceptible practice.' By the time of Charles II they had burst their original bounds and were used by the Star Chamber to find evidence among the files and papers of political suspects. Thus in the trial of Algernon Sidney in 1683 for treason 'papers, which were said to be found in my (Sidney's) house, were produced as another witness' (9 How.St.Tr. 818, 901) and the defendant was executed. Id., at 906-907. From this use of papers as evidence there grew up the practice of the Star Chamber empowering a person 'to search in all places, where books were printing, in order to see if the printer had a licence; and if upon such search he found any books which he suspected to be libellous against the church or state, he was to seize them, and carry them before the proper magistrate.' Entick v. Carrington, supra, at 1069. Thus the general warrant became a powerful instrument in proceedings for seditious libel against printers and authors. Ibid. John Wilkes led the campaign against the general warrant. Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 529, 29 L.Ed. 746. Wilkes won (Entick v. Carrington, supra, decided in 1765); and Lord Camden's opinion not only outlawed the general warrant (id., at 1072) but went on to condemn searches 'for evidence' with or without a general warrant:

'There is no process against papers in civil causes. It has     been often tried, but never prevailed. Nay, where the     adversary has by force or fraud got possession of your own      proper evidence, there is no way to get it back but by acton.

'In the criminal law such a proceeding was never heard of;     and yet there are some crimes, such for instance as murder,      rape, robbery, and housebreaking, to say nothing of forgery      and perjury, that are more atrocious than libelling. But our     law has provided no paper-search in these cases to help      forward the conviction.

'Whether this procedeth from the gentleness of the law     towards criminals, or from a consideration that such a power      would be more pernicious to the innocent than useful to the      public, I will not say.

'It is very certain, that the law obligeth no man to accuse     himself; because the necessary means of compelling      self-accusation, falling upon the innocent as well as the      guilty, would be both cruel and unjust; and it should seem,      that search for evidence is disallowed upon the same      principle. There too the innocent would be confounded with     the guilty.' Id., at 1073.

Thus Lord Camden decided two things: (1) that searches for evidence violated the principle against self-incrimination; (2) that general warrants were void.

This decision, in the very forefront when the Fourth Amendment was adopted, underlines the construction that it covers something other than the form of the warrant and creates a zone of privacy which no government official may enter.

The complaint of Bostonians, while including the general warrants, went to the point of police invasions of personal sanctuaries:

"A List of Infringements and Violations of Rights' drawn up     by the Boston town meeting late in 1772 alluded to a number      of personal rights which had allegedly been violated by      agents of the crown. The list included complaints against the      writs of assistance which had been employed by royal officers      in their searches for contraband. The Bostonians complained      that 'our houses and even our bed chambers are exposed to be      ransacked, our boxes, chests, and trunks broke open, ravaged      and plundered by wretches, whom no prudent man would venture      to employ even as menial servants." Rutland, The Birth of the     Bill of Rights 25 (1955).

The debates concerning the Bill of Rights did not focus on the precise point with which we here deal. There was much talk about the general warrants and the fear of them. But there was also some reference to the sanctity of one's home and his personal belongings, even including the clothes he wore. Thus in Virginia, Patrick Henry said:

'The officers of Congress may come upon you now, fortified     with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their     numbers no man knows. They may, unless the general government     be restrained by a bill of rights, or some similar      restriction, go into your cellars and rooms, and search,      ransack, and measure, every thing you eat, drink, and wear. They ought to be restrained within proper bounds.' 3 Elliot's     Debates 448-449.

This indicates that the Fourth Amendment has the dual aspect that I have mentioned. Certainly the debates nowhere suggest that it was concerned only with regulating the form of warrants.

This is borne out by what happened in the Congress. In the House the original draft read as follows:

'The right of the people to be secured in their persons,     houses, papers and effects, shall not be violated by warrants      issuing without probable cause, supported by oath or      affirmation, and not particularly describing the place to be      searched and the persons or things to be seized.' 1 Annals of      Cong. 754.

That was amended to read 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches,' etc. Ibid. Mr. Benson, Chairman of a Committee of Three to arrange the amendments, objected to the words 'by warrants issuing' and proposed to alter the amendment so as to read 'and no warrant shall issue.' Ibid. But Benson's amendment was defeated. Ibid. And if the story had ended there, it would be clear that the Fourth Amendment touched only the form of the warrants and the manner of their issuance. But when the Benson Committee later reported the Fourth Amendment to the House, it was in the form he had earlier proposed and was then accepted. 1 Annals of Cong. 779. The Senate agreed. Senate Journal August 25, 1789.

Thus it is clear that the Fourth Amendment has two faces of privacy, a conclusion emphasized by Lawson, The History and Development of the Fourth Amendment to the United States Constitution 103 (1937):

'As reported by the Committee of Eleven and corrected by     Gerry, the Amendment was a one-barrelled affair, directed      apparently only to the essentials of a valid warrant. The     general principle of freedom from unreasonable search and      seizure seems to have been stated only by way of premise, and      the positive inhibition upon action by the Federal Government      limited consequently to the issuance of warrants without      probable cause, etc. That Benson interpreted it in this light      is shown by his argument that although the clause was good as      far as it went, it was not sufficient, and by the change      which he advocated to obviate this objection. The provision     as he proposed it contained two clauses. The general right of     security from unreasonable search and seizure was given a      sanction of its own and the amendment thus intentionally      given a broader scope. That the prohibition against     'unreasonable searches' was intended, accordingly, to cover      something other than the form of the warrant is a question no      longer left to implication to be derived from the phraseology      of the Amendment.' Lord Camden's twofold classification of zones of privacy was said by Cooley to be reflected in the Fourth Amendment:

'The warrant is not allowed for the purpose of obtaining     evidence of an intended crime; but only after lawful evidence      of an offence actually committed. Nor even then is it     allowable to invade one's privacy for the sole purpose of      obtaining evidence against him, except in a few special cases      where that which is the subject of the crime is supposed to      be concealed, and the public or the complainant has an      interest in it or in its destruction.' Constitutional      Limitations 431-432 (7th ed. 1903).

And that was the holding of the Court in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, decided in 1886. Mr. Justice Bradley reviewed British history, including Entick v. Carrington, supra, and American history under the Bill of Rights and said:

'The search for and seizure of stolen or forfeited goods, or     goods liable to duties and concealed to avoid the payment      thereof, are totally different things from a search for and      seizure of a man's private books and papers for the purpose      of obtaining information therein contained, or of using them      as evidence against him. The two things differ toto coelo. In     the one case, the government is entitled to the possession of      the property; in the other it is not.' Id., as 623.

What Mr. Justice Bradley said about stolen or forfeited goods or contraband is, of course, not accurate if read to mean that they may be seized at any time even without a warrant or not incident to an arrest that is lawful. The right to seize contraband is not absolute. If the search leading to discovery of an illicit article is not incidental to a lawful arrest or not authorized by a search warrant, the fact that contraband is discovered does not make the seizure constitutional. Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663; McDonald v. United States, 335 US. 451, 69 S.Ct. 191, 93 L.Ed. 153; Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

That is not our question. Our question is whether the Government, though armed with a proper search warrant or though making a search incident to an arrest, may seize, and use at the trial, testimonial evidence, whether it would otherwise be barred by the Fifth Amendment or would be free from such strictures. The teaching of Boyd is that such evidence, though seized pursuant to a lawful search, is inadmissible.

That doctrine had its full flowering in Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, where an opinion was written by Mr. Justice Clarke for a unanimous Court that included both Mr. Justice Holmes and Mr. Justice Brandeis. The prosecution was for defrauding the Government under procurement contracts. Documents were taken from defendant's business office under a search warrant and used at the trial as evidence against him. Stolen or forged papers could be so seized, the Court said; so could lottery tickets; so could contraband; so could property in which the public had an interest, for reasons tracing back to warrants allowing the seizure of stolen property. But the papers or documents fell in none of those categories and the Court therefore held that even though they had been taken under a warrant, they were inadmissible at the trial as not even a warrant, though otherwise proper and regular, could be used 'for the purpose of making search to secure evidence' of a crime. Id., at 309, 41 S.Ct., at 265. The use of those documents against the accused might, of course, violate the Fifth Amendment. Id., at 311, 41 S.Ct., at 265. But whatever may be the intrinsic nature of the evidence, the owner is then 'the unwilling source of the evidence' (id., at 306, 41 S.Ct., at 264), there being no difference so far as the Fifth Amendment is concerned 'whether he be obliged to supply evidence against himself or whether such evidence be obtained by an illegal search of his premises and seizure of his private papers.' Ibid.

We have, to be sure, breached that barrier, Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, being a conspicuous example. But I dissented then and renew my opposing view at this time. That which is taken from a person without his consent and used as testimonial evidence violates the Fifth Amendment.

That was the holding in Gouled; and that was the line of authority followed by Judge Simon Sobeloff, writing for the Court of Appeals for reversal in this case. 363 F.2d 647. As he said, even if we assume that the search was lawful, the articles of clothing seized were of evidential value only and under Gouled could not be used at the trial against petitioner. As he said, the Fourth Amendment guarantees the right of the people to be secure 'in their persons, houses, papers, and effects, against unreasonable searches and seizures.' Articles of clothing are covered as well as papers. Articles of clothing may be of evidential value as much as documents or papers.

Judge Learned Hand stated a part of the philosophy of the Fourth Amendment in United States v. Poller, 2 Cir., 43 F.2d 911, 914:

'(I)t is only fair to observe that the real evil aimed at by     the Fourth Amendment is the search itself, that invasion of a      man's privacy which consists in rummaging about among his      effects to secure evidence against him. If the search is     permitted at all, perhaps it does not make so much difference      what is taken away, since the officers will ordinarily not be interested in what does not incriminate, and there can      be no sound policy in protecting what does. Nevertheless,     limitations upon the fruit to be gathered tend to limit the      quest itself *  *  * .'

The right of privacy protected by the Fourth Amendment relates in part of course to the precincts o t he home or the office. But it does not make them sanctuaries where the law can never reach. There are such places in the world. A mosque in Fez, Morocco, that I have visited, is by custom a sanctuary where any refugee may hide, safe from police intrusion. We have no such sanctuaries here. A policeman in 'hot pursuit' or an officer with a search warrant can enter any house, any room, any building, any office. The privacy of those places is of course protected against invasion except in limited situations. The full privacy protected by the Fourth Amendment is, however, reached when we come to books, phamphlets, papers, letters, documents, and other personal effects. Unless they are contraband or instruments of the crime, they may not be reached by any warrant nor may they be lawfully seized by the police who are in 'hot pursuit.' By reason of the Fourth Amendment the police may not rummage around among these personal effects, no matter how formally perfect their authority may appear to be. They may not seize them. If they do, those articles may not be used in evidence. Any invasion whatsoever of those personal effects is 'unreasonable' within the meaning of the Fourth Amendment. That is the teaching of Entick v. Carrington, Boyd v. United States, and Gouled v. United States.

Some seek to explain Entick v. Carrington on the ground that it dealt with seditious libel and that any search for political tracts or letters under our Bill of Rights would be unlawful per se because of the First Amendment and therefore 'unreasonable' under the Fourth. That argument misses the main point. A prosecution for seditious libel would of course be unconstitutional under the First Amendment because it bars laws 'abridging the freedom of speech, or of the press.' The First Amendment also has a penumbra, for while it protects only 'speech' and 'press' it also protects related rights such as the right of association. See NAACP v. State of Alabama, 357 U.S. 449, 460, 462, 78 S.Ct. 1163, 1170, 1171, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231; State of Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 1335, 6 L.Ed.2d 301; and NAACP v. Button, 371 U.S. 415, 430-431, 83 S.Ct. 328, 336-337, 9 L.Ed.2d 405. So it could be held, quite apart from the Fourth Amendment, that any probing into the area of opinions and beliefs would be barred by the First Amendment. That is the essence of what we said in Watkins v. United States, 354 U.S. 178, 197, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273:

'Clearly, an investigation is subject to the command that the     Congress shall make no law abridging freedom of speech or      press or assembly. While it is true that there is no statute     to be reviewed, and that an investigation is not a law,      nevertheless an investigation is part of lawmaking. It is     justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of     the protected freedoms by law or by lawmaking.'

But the privacy protected by the Fourth Amendment is much wider than the one protected by the First. Boyd v. United States was a forfeiture proceeding under the customs revenue law and the paper held to be beyond the reach of the Fourth Amendment was an invoice covering the imported goods. 116 U.S., at 617-619, 638, 6 S.Ct., at 525-526, 536. And as noted, Gouled v. United States involved a prosecution for defrauding the Government under procurement contracts and the papers held protected against seizure, even under a technically proper warrant, were (1) an unexecuted form of contract between defendant and another person; (2) a written contract signed by defendant and another person; and (3) a bill for disbursement and professional services rendered by the attorney to the defendant. 255 U.S., at 306-307, 41 S.Ct., at 263-264.

The constitutional philosophy is, I think, clear. The personal effects ad possessions of the individual (all contraband and the like excepted) are sacrosanct from prying eyes, from the long arm of the law, from any rummaging by police. Privacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses. The article may be a nondescript work of art, a manuscript of a book, a personal account book, a diary, invoices, personal clothing, jewelry, or whatnot. Those who wrote the Bill of Rights believed that every individual needs both to communicate with others and to keep his affairs to himself. That dual aspect of privacy means that the individual should have the freedom to select for himself the time and circumstances when he will share his secrets with others and decide the extent of that sharing. This is his prerogative not the States'. The Framers, who were as knowledgeable as we, knew what police surveillance meant and how the practice of rummaging through one's personal effects could destroy freedom.

It was in that tradition that we held in Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, that lawmakers could not, as respects husband and wife at least, make the use of contraceptives a crime. We spoke of the pronouncement in Boyd v. United States that the Fourth and Fifth Amendments protected the person against all governmental invasions 'of the sanctity of a man's home and the privacies of life.' 116 U.S., at 630, 6 S.Ct., at 532. We spoke of the 'right to privacy' of the Fourth Amendment upheld by Mapp v. Ohio, 367 U.S. 643, 656, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081, and of the many other controversies 'over these penumbral rights of 'privacy and repose." 381 U.S., at 485, 85 S.Ct., at 1682. And we added:

'Would we allow the police to search the sacred precincts of     marital bedrooms for telltale signs of the use of      contraceptives? The very idea is repulsive to the notions of     privacy surrounding the marriage relationship.

'We deal with a right of privacy older than the Bill of     Rights-older than our political parties, older than our      school system. Marriage is a coming together for better or     for worse, hopefully enduring, and intimate to the degree of      being sacred. It is an association that promotes a way of     life, not causes; a harmony in living, not political faiths;      a bilateral loyalty, not commercial or social projects. Yet it is an     association for as noble a purpose as any involved in our      prior decisions.' Id., at 485-486, 85 S.Ct., at 1682.

This right of privacy, sustained in Griswold, is kin to the right of privacy created b t he Fourth Amendment. That there is a zone that no police can enter-whether in 'hot pursuit' or armed with a meticulously proper warrant-has been emphasized by Boyd and by Gouled. They have been consistently and continuously approved. I would adhere to them and leave with the individual the choice of opening his private effects (apart from contraband and the like) to the police or keeping their contents a secret and their integrity inviolate. The existence of that choice is the very essence of the right to privacy. Without it the Fourth Amendment and the Fifth are ready instruments for the police state that the Framers sought to avoid.