Wolf v. Colorado/Dissent Rutledge

Mr. Justice RUTLEDGE, dissenting.

'Wisdom too often never comes, and so one ought not to reject it merely because it comes late.' Similarly, one should not reject a piecemeal wisdom, merely because it hobbles toward the truth with backward glances. Accordingly, although I think that all 'the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment,' Adamson v. California, 332 U.S. 46, dissenting opinion at page 124, 67 S.Ct. 1672, at page 1683, 91 L.Ed. 1903, 171 A.L.R. 1223, I welcome the fact that the Court, in its slower progress toward this goal, today finds the substance of the Fourth Amendment 'to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, * *  * valid as againt the states.' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.

But I reject the Court's simultaneous conclusion that the mandate embodied in the Fourth Amendment, although binding on the states, does not carry with it the one sanction-exclusion of evidence taken in violation of the Amendment's terms-failure to observe which means that 'the protection of the 4th Amendment * *  * might as well be stricken from the Constitution.' Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177. For I agree with my brother MURPHY'S demonstration that the Amendment without the sanction is a dead letter. Twenty-nine years ago this Court, speaking through Justice Holmes, refused to permit the Government to subpoena documentary evidence which it had stolen, copied and then returned, for the reason that such a procedure 'reduces the Fourth Amendment to a form of words.' Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 24 A.L.R. 1426. But the version of the Fourth Amendment today held applicable to the states hardly rises to the dignity of a form of words; at best it is a pale and frayed carbon copy of the original, bearing little resemblance to the Amendment the fulfillment of whose command I had heretofore thought to be 'an indispensable need for a democratic society.' Harris v. United States, 331 U.S. 145, dissenting opinion at page 161, 67 S.Ct. 1098, at page 1106, 91 L.Ed. 1399.

I also reject any intimation that Congress could validly enact legislation permitting the introduction in federal courts of evidence seized in violation of the Fourth Amendment. I had thought that issue settled by this Court's invalidation on dual grounds, in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, of a federal statute which in effect required the production of evidence thought probative by Government counsel-the Court there holding the statute to be 'obnoxious to the prohibition of the fourth amendment of the constitution, as well as of the fifth.' Id., at page 632, 6 S.Ct. at page 533. See Adams v. New York, 192 U.S. 585, 597, 598, 24 S.Ct. 372, 375, 48 L.Ed. 575. The view that the Fourth Amendment itself forbids the introduction of evidence illegally obtained in federal prosecutions is one of long standing and firmly established. See Olmstead v. United States, 277 U.S. 438, 462, 48 S.Ct. 564, 567, 72 L.Ed. 944, 66 A.L.R. 376. It is too late in my judgment to question it now. We apply it today in Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372.

As Congress and this Court are, in my judgment, powerless to permit the admission in federal courts of evidence seized in defiance of the Fourth Amendment, so I think state legislators and judges-if subject to the Amendment, as I believe them to be-may not lend their offices to the admission in state courts of evidence thus seized. Compliance with the Bill of Rights betokens more than lip service.

The Court makes the illegality of this search and seizure its inarticulate premise of decison. I acquiesce in that premise and think the conviction should be reversed.

Mr. Justice MURPHY joins in this opinion.