(Cite
as: 338 U.S. 25, 69 S.Ct. 1359)
WOLF
v.
PEOPLE OF THE STATE OF COLORADO (two cases).
Nos. 17 and 18.
Supreme Court of the United
States
Argued Oct. 19, 1948.
Decided June 27, 1949.
Julius A. Wolf was convicted of conspiring with others to commit
abortions. The convictions were affirmed by the Supreme Court of Colorado, 187
P.2d 926, 928, and he brings certiorari.
Affirmed.
Mr. Justice RUTLEDGE, Mr. Justice MURPHY, and Mr. Justice DOUGLAS,
dissenting.
On Writs of Certiorari to
the Supreme Court of the State of Colorado.
Mr. James S. Henderson,
Denver, Colo., for respondent.
Mr. Justice FRANKFURTER
delivered the opinion of the Court.
The precise question for consideration is this: Does a
conviction by a State court for a State offense deny the 'due process of law'
required by the Fourteenth Amendment, solely because evidence that was admitted *26 at the trial was obtained under
circumstances which would have rendered it admissible in a prosecution for
violation of a federal law in a court of the United States because there deemed
to be an infraction of the Fourth Amendment as applied in Weeks v. United
States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834,
Ann.Cas.1915C, 1177? The Supreme Court of Colorado has sustained convictions in
which such evidence was admitted, 117 Colo. 279, 187 P.2d 926; 117 Colo. 321,
187 P.2d 928, and we brought the cases here. 333 U.S. 879, 68 S.Ct. 910, 92
L.Ed. 1155.
[1] Unlike the specific requirements and restrictions placed by
the Bill of Rights, Amendments I to VIII, upon the administration of criminal
justice by federal authority, the Fourteenth Amendment did not subject criminal
justice in the States to specific limitations. The notion that the 'due process
of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight
amendments of the Constitution and thereby incorporates them has been rejected by
this Court again and again, after impressive consideration. See, e.g., Hurtado
v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Twining v. New
Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Brown v. Mississippi, 297 U.S.
287, 56 S.Ct. 461, 80 L.Ed. 682; Palko v. Connecticut, 302 U.S. 319, 58 S.Ct.
149, 82 L.Ed. 288. Only the other day the Court reaffirmed this rejection after
thorough reexamination of the scope and function of the Due Process Clause of
the Fourteenth Amendment. Adamson v. California, 332 U.S. 46, 47 S.Ct. 1672, 91
L.Ed. 1903, 171 A.L.R. 1223. The issue is closed.
[2] For purposes of ascertaining the restrictions which the Due
Process Clause **1361 imposed upon
the States in the enforcement of their criminal law, we adhere to the views
expressed in Palko v. Connecticut, supra, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed.
288. That decision speaks to us L.Ed. 288. That decision speaks to us
particularly in matters of civil liberty, of a court that included Mr. Chief
Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone and Mr. Justice
Cardozo, to speak only of the dead. In rejecting the suggestion that the Due
Process Clause incorporated the original Bill of Rights, Mr. Justice Cardozo
reaffimred on behalf of that *27
Court at affirmed but deeper and more pervasive conception of the Due Process
Clause. This Clause exacts from the States for the lowliest and the most
outcast all that is 'implicit in the concept of ordered liberty.' 302 U.S. at
page 325, 58 S.Ct. at page 152.
Due process of law thus conveys neither formal nor fixed nor
narrow requirements. It is the compendious expression for all those rights
which the courts must enforce because they are basic to our free society. as of
any one time, even though, as a as of any one time, even though, as a matter of
human experience, some may not too rhetorically be called eternal verities. It
is of the very nature of a free society to advance in its standards of what is
deemed reasonable and right. Representing as it does a living principle, due
process is not confined within a permanent catalogue of what may at a given
time be deemed the limits or the essentials of fundamental rights.
[3] To rely on a tidy formula for the easy determination of what
is a fundamental right for purposes of legal enforcement may satisfy a longing
for certainty but ignores the movements of a free society. It belittles the
scale of the conception of due process. The real clue to the problem
confronting the judiciary in the application of the Due Process Clause is not
to ask where the line is once and for all to be drawn but to recognize that it
is for the Court to draw it by the gradual and empiric process of 'inclusion
and exclusion.' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. This
was the Court's insight when first called upon to consider the problem; to this
insight the Court has on the whole been faithful as case after case has come
before it since Davidson v. New Orleans was decided.
[4] The security of one's privacy against arbitrary intrusion by
the police‑‑which is at the core of the Fourth Amendment‑‑is
basic to a free society. It is therefore implicit in 'the concept of ordered
liberty' and as such enforceable againt the States through the Due Process *28 Clause. The knock at the door, whether
by day or by night, as a prelude to a search, without authority of law but
solely on the authority of the police, did not need the commentary of recent
history to be condemned as inconsistent with the conception of human rights
enshrined in the history and the basic constitutional documents of English‑speaking
peoples.
Accordingly, we have no hesitation in saying that were a State
affirmatively to sanction such police incursion into privacy it would run
counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing
such a basic right raise questions of a different order. How such arbitrary
conduct should be checked, what remedies against it should be afforded, the
means by which the right should be made effective, are all questions that are
not to be so dogmatically answered as to preclude the varying solutions which
spring from an allowable range of judgment on issues not susceptible of
quantitative solution.
In Weeks v. United States, supra, this Court held that in a
federal prosecution the Fourth Amendment barred the use of evidence secured
through an illegal search and seizure. This ruling was made for the first time
in 1914. It was not derived from the explicit requirements of the Fourth
Amendment; it was not based on legislation expressing Congressional policy in
the enforcement of the Constitution. The decision was a matter of judicial
implication. Since then it has been frequently **1362 applied and we stoutly adhere to it. But the immediate
question is whether the basic right to protection against arbitrary intrusion
by the police demands the exclusion of logically relevant evidence obtained by
an unreasonable search and seizure because, in a federal prosecution for a
federal crime, it would be excluded. As a matter of inherent reason, one would
suppose this to be an issue to which men with complete devotion to the
protection of the right *29 of
privacy might give different answers. When we find that in fact most of the
English‑speaking world does not regard as vital to such protection the
exclusion of evidence thus obtained, we must hesitate to treat this remedy as
an essential ingredient of the right. The contrariety of views of the States is
particularly impressive in view of the careful reconsideration which they have
given the problem in the light of the Weeks decision.
I. Before the Weeks decision 27 States had passed on the
admissibility of evidence obtained by unlawful search and seizure.
(a) Of these, 26 States opposed the Weeks
doctrine. (See Appendix, Table A.)
(b) Of these, 1 State
anticipated the Weeks doctrine. (Table B.)
II. Since the Weeks
decision 47 States all told have passed on the Weeks doctrine. (Table C.)
(a) Of these, 20 passed on
it for the first time.
(1) Of the foregoing
States, 6 followed the Weeks doctrine. (Table D.)
(2) Of the foregoing
States, 14 rejected the Weeks doctrine. (Table E.)
(b) Of these, 26 States
reviewed prior decisions contrary to the Weeks doctrine.
(1) Of these, 10 States
have followed Weeks, overruling or distinguishing their prior decisions. (Table
F.)
(2) Of these, 16 States
adhered to their prior decisions against Weeks. (Table G)
(c) Of these, 1 State
adhered to its prior formulation of the Weeks doctrine. (Table H.)
III. As of today 30 States
reject the Weeks doctrine, 17 States are in agreement with it. (Table I.)
*30 IV. Of 10 jurisdictions within the United Kingdom and the British
Commonwealth of Nations which have passed on the question, none has held
evidence obtained by illegal search and seizure inadmissible. (Table J.)
[5] The jurisdictions which have rejected the Weeks doctrine have
not left the right to privacy without other means of protection. [FN1] Indeed,
the exclusion of evidence *31 is a
remedy which directly serves only to protect those upon whose person or premises
something incriminating has been found. We cannot, therefore, regard it as a
departure from basic standards to remand such persons, together with those who
emerge scatheless from a search, to the remedies of private action and such
protection as the internal discipline of the police, under the eyes of an alert
public opinion, may afford. Granting that in practice the exclusion of evidence
may be an effective way of deterring unreasonable searches, it is not for this
Court to condemn **1363 as falling below
the minimal standards assured by the Due Process Clause a State's reliance upon
other methods which, if consistently enforced, would be equally effective.
Weighty testimony against such an insistence on our own view is the opinion of
Mr. Justice (then Judge) Cardozo in People v. Defore, 242 N.Y. 13, 150 N.E.
585. [FN2] We cannot brush aside the experience of States which deem the
incidence of such *32 condust by the
police too slight to call for a deterrent remedy not by way **1364 of disciplinary measures but by overriding the relevant
rules of evidence. There are, moreover, reasons for excluding evidence
unreasonable obtained by the federal police which are less compelling in the
case of police under State or local authority. The public opinion of a community
can far more effectively be exerted against oppresive conduct on the part of
police directly responsible to the community itself than can local opinion,
sporadically aroused, be brought to bear upon *33 remote authority pervasively exerted throughout the country.
FN1 The common law provides actions for damages against the
searching officer, e.g., Entick v. Carrington, 2 Wils. 275, 19 How.St.Tr. 1030;
Grumon v. Raymond, 1 Conn. 40, 6 Am.Dec. 200; Sandford v. Nichols, 13 Mass.
286, 7 Am.Dec. 151; Halsted v. Brice, 13 Mo. 171; Hussey v. Davis, 58 N.H. 317;
Reed v. Lucas, 42 Tex. 529; against one who procures the issuance of a warrant
maliciously and without probable cause, e.g., Gulsby v. Louisville & N.R.
Co., 167 Ala. 122, 52 So. 392; Whitson v. May, 71 Ind. 269; Krehbiel v. Henkle,
152 Iowa 604, 129 N.W. 945, 133 N.W. 115, Ann.Cas. 1913B, 1156; Olson v. Tvete,
46 Minn. 225, 48 N.W. 914; Boeger v. Langenberg, 97 Mo. 390, 11 S.W. 223, 10
Am.St.Rep. 322; Doane v. Anderson, 60 Hun 586, 15 N.Y.S. 459; Shall v.
Minneapolis, St. P. & S.S.M.R. Co., 156 Wis. 195, 145 N.W. 649, 50
L.R.A.,N.S., 1151, against a magistrate who has acted without jurisdiction in
issuing a warrant, e.g., Williams v. Kozak, 4 Cir., 280 F. 373; Grumon v.
Raymond, 1 Conn. 40, 6 Am.Dec. 200; Kennedy v. Terrill, Hardin, Ky., 490; Shaw v. Moon, 117 Or. 558, 245 P. 318,
45 A.L.R. 600, against persons assisting in the execution of an illegal search,
e.g., Hebrew v. Pulis, 73 N.J.L. 621, 625, 64 A. 121, 122, 7 L.R.A., N.S., 580,
118 Am.St.Rep. 716; Cartwright v. Canode, Tex.Civ.App. 138 S.W. 792, affirmed
106 Tex. 502, 171 S.W. 696. One may also without liability use force to resist
an unlawful search. E.g., Commonwealth v. Martin, 105 Mass. 178; State v. Mann,
27 N.C. 45.
Statutory sanctions in the main provide for the punishment of one
maliciously procuring a search warrant or willfully exceeding his authority in
exercising it. E.g., 18 U.S.C. ss 53a, 630, 631 (now ss 2234‑‑
2236); Ala.Code Ann.1940, tit. 15, s 99; Ariz.Code Ann. s 44‑3513 (1939);
Fla.Stat.Ann. ss 933.16, 933.17; Iowa Code ss 751.38, 751.39 (1946), I.C.A.;
Mont.Rev.Code Ann. ss 10948, 10952 (1935); Nev.Comp.Laws ss 10425, 10426
(1929); N.Y.Crim.Code ss 811, 812; N.Y.Penal Law, McK.Consol.Laws, C. 40, ss
1786, 1847; N.D.Rev.Code ss 12‑1707, 12‑ 1708 (1943);
Okl.Stat.Ann.tit. 21, ss 536, 585, tit. 22, ss 1239, 1240; Or.Comp.Laws Ann. s
26‑‑1717 (1940); S.D.Code. ss 13.1213, 13.1234, 34.9904, 34.9905
(1939); Tenn.Code Ann. s 11905 (1934). Some statutes more broadly penalize unlawful
searches. E.g., 18 U.S.C. s 53a (now 2236); Idaho Code Ann. ss 17‑1004,
17‑1024 (1932); Minn.Stat.Ann. ss 613.54, 621.17; Va.Code Ann. s 4822d
(Michie, 1942);
Wash.Rev.Stat.Ann. ss 2240‑‑1, 2240‑‑2. Virginia also
makes punishable one who issues a general search warrant or a warrant
unsupported by affidavit. Va.Code Ann. s 4822e (Michie, 1942). A few States
have provided statutory civil remedies. See, e.g., Ga.Code Ann. s 27‑301
(1935); Ill.Rev.Stat. c. 38, s 698 (Smith‑Hurd); Miss.Code Ann. s 1592
(1942). And in one State, misuse of a search warrant may be an abuse of process
punishable as contempt of court. See Mich.Stat.Ann. s 27.511 (1938), Comp.Laws
1948, s 605.1.
FN2 'We hold, then, with the defendant that the evidence against
him was the outcome of a trespass. The officer might have been resisted, or
sued for damages, or even prosecuted for oppression. Penal Law, ss 1846, 1847.
He was subject to removal or other discipline at the hands of his superiors.
These consequences are undisputed. The defendant would add another. We must
determine whether evidence of criminality, procured by an act of trespass, is
to be rejected an incompetent for the misconduct of the trespasser. * * *
'Those judgments (Weeks v.
United States and cases which followed it) do not bind us, for they construe
provisions of the Federal Constitution, the Fourth and Fifth Amendments, not
applicable to the States. Even though not binding, they merit our attentive
scrutiny. * * * 'In so holding
(i.e., that evidence procured by unlawful search is not incompetent), we are
not unmindful of the argument that, unless the evidence is excluded, the
statute becomes a form and its protection an illusion. This has a strange sound
when the immunity is viewed in the light of its origin and history. The rule
now embodied in the statute was received into English law as the outcome of the
prosecution of Wilkes and Entick. * * * Wilkes sued the messengers who had
ransacked his papers, and recovered a verdict of 4,000 against one and 1,000
against the other. Entick, too, had a substantial verdict. * * * We do not know
whether the public, represented by its juries, is today more indifferent to its
liberties than it was when the immunity was born. If so, the change of
sentiment without more does not work a change of remedy. Other sanctions, penal
and disciplinary, supplementing the right to damages, have already been
enumerated. No doubt the protection of the statute would be greater from the
point of view of the individual whose privacy had been invaded if the
government were required to ignore what it had learned through the invasion.
The question is whether protection for the individual would not be gained at a
disproportionate loss of protection for society. On the one side is the social
need that crime shall be repressed. On the other, the social need that law
shall not be flouted by the insolence of office. There are dangers in any
choice. The rule of the Adams case (People v.
Adams, 176 N.y. 351, 68 N.E. 636, 63 L.R.A. 406, 98 Am.St.Rep. 675) strikes a
balance between opposing interests.' 242 N.Y. at pages 19, 20, 24‑‑25,
150 N.E. at pages 586‑‑587, 588‑‑589.
[6] We hold, therefore, that in a prosecution in a State court for
a State crime the Fourteenth Amendment does not forbid the admission of evidence
obtained by an unreasonable search and seizure. And though we have interpreted
the Fourth Amendment to forbid the admission of such evidence, a different
question would be presented if Congress under its legislative powers were to
pass a statute purporting to negate the Weeks doctrine. We would then be faced
with the problem of the respect to be accorded the legislative judgment on an
issues as to which, in default of that judgment, we have been forced to depend
upon our own. Problems of a converse character, also not before us, would be
presented should Congress under s 5 of the Fourteenth Amendment uindertake to
enforce the rights there guaranteed by attempting to make the Weeks doctrine
binding upon the States.
Affirmed.
APPENDIX. [FN*]
FN* In the case of
jurisdictions which have decided more than one case is point, the following
Tables cite only the leading case.
TABLE A.
STATES WHICH OPPOSED THE WEEKS DOCTRINE BEFORE THE WEEKS CASE
HAD BEEN
DECIDED.
ALA. Shields v. State, 104 Ala. 35, 16 So. 85, 53 Am.St.Rep. 17.
ARK. Starchman v. State, 62 Ark. 538, 36 S.W. 940.
CONN. State v. Grisworld, 67 Conn. 290, 34 A. 1046, 33 L.R.A. 227.
GA. Williams v. State, 100 Ga. 511, 28 S.E. 624, 39 L.R.A. 269.
IDAHO State v. Bond, 12 Idaho 424, 439, 86 P. 43, 47.
ILL. Siebert v. People, 143 Ill. 571, 583, 32 N.E. 431.
KANS. State v. Miller, 63 Kan. 62, 64 P. 1033.
ME. See State v. Gorham, 65 Me. 270, 272.
MD. Lawrence v. State, 103 Md. 17, 35, 63 A. 96, 103.
MASS. Commonwealth v. Dana, 2 Metc. 329.
MICH. People v. Aldorfer, 164 Mich. 676, 130 N.W. 351.
MINN. State v. Strait, 94 Minn. 384, 102 N.W. 913.
MO. State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002.
MONT. See State v. Fuller, 34 Mont. 12, 19, 85 P. 369, 373, 8
L.R.A.,N.S., 762, 9 Ann.Cas. 648.
NEB. Geiger v. State, 6 Neb. 545.
N.H. State v. Flynn, 36 N.H. 64.
N.Y. People v. Adams, 176 N.Y. 351, 68 N.E. 636, 63 L.R.A. 406, 98
Am.St.Rep. 675.
N.C. State v. Wallace, 162 N.C. 622, 78 S.E. 1, Ann.Cas.1915B,
423.
OKLA. Silva v. State, 6 Okl.Cr. 97, 116 P. 199.
ORE. State v. McDaniel, 39 Or. 161, 169‑‑170, 65 P.
520, 523.
S.C. State v. Atkinson, 40 S.C. 363, 371, 18 S.E. 1021, 1024, 42
Am.St.Rep. 877.
S.D. State v. Madison, 23 S.D. 584, 591, 122 N.W. 647, 650.
TENN. Cohn v. State, 120 Tenn. 61, 109 S.W. 1149, 17 L.R.A.,N.S.,
451, 15 Ann.Cas. 1201.
Vt. State v. Mathers, 64 Vt. 101, 23 A. 590, 15 L.R.A. 268, 33
Am.St.Rep. 921.
**1365 WASH. State v. Royce, 38
Wash. 111, 80 P. 268, 3 Ann.Cas. 351.
W. Va. See State v. Edwards, 51 W.Va. 220, 229, 41 S.E. 429, 432‑‑433, 59 L.R.A. 465.
TABLE B.
STATE WHICH HAD FORMULATED
THE WEEKS DOCTRINE BEFORE THE WEEKS DECISION.
IOWA State v. Sheridan, 121
Iowa 164, 96 N.W. 730.
TABLE C.
STATES WHICH HAVE PASSED ON
THE WEEKS DOCTRINE SINCE THE WEEKS CASE WAS
DECIDED.
Every State except Rhode Island. But see State v. Lorenzo, 72 R.I.
175, 48 A.2d 407, 49 A.2d 316 (holding that defendant had consented to the
search, but that even if he had not and even if the federal rule applied, the
evidence was admissible because no timely motion to suppress had been made).
TABLE D.
STATES WHICH PASSED ON THE
WEEKS DOCTRINE FOR THE FIRST TIME AFTER THE WEEKS
DECISION AND IN SO DOING
FOLLOWED IT.
FLA. Atz v. Andrews, 84 Fla. 43, 94 So. 329.
IND. Flum v. State, 193 Ind. 585, 141 N.E. 353.
KY. Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R.
1303.
MISS. Tucker v. State, 128 Miss. 211, 90 So. 845, 24 A.L.R. 1377.
WIS. Hoyer v. State, 180 Wis. 407, 193 N.W. 89, 27 A.L.R. 673.
WYO. State v. George, 32 Wyo. 223, 231 P. 683.
TABLE E.
STATES WHICH PASSED ON THE
WEEKS DOCTRINE FOR THE FIRST TIME AFTER THE WEEKS
DECISION AND IN SO DOING
REJECTED IT.
ARIZ. Argetakis v. State, 24 Ariz. 599, 212 P. 372.
CALIF. People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383
(adopting the general rule but distinguishing the cases then decided by this
Court on the ground that they apply only when a timely motion for return of the
property seized has been made).
COLO. Massantonio v. People, 77 Colo. 392, 236 P. 1019.
DEL. State v. Chuchola, 32 W.W.Harr. 133, 120 A. 212
(distinguishing this Court's decisions).
LA. State v. Fleckinger, 152 La. 337, 93 So. 115. The
constitutional convention of 1921 refused to adopt an amendment incorporating the
federal rule. See State v. Eddins, 161 La. 240, 108 So. 468.
NEV. State v. Chin Gim, 47 Nev. 431, 224 P. 798.
N.J. Statev. Black, 135 A. 685, 5 N.J.Misc 48.
N.M. State v. Dillon, 34 N.M. 366, 281 P. 474, 88 A.L.R. 340.
N.D. State v. Fahn, 53 N.D. 203, 205 N.W. 67.
OHIO State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490.
PA. Commonwealth v. Dabbierio, 290 Pa. 174, 138 A. 679.
TEX. Welchek v. State, 93 Tex.Cr.R. 271, 247 S.W. 524. In 1925, a
statute changed the rule by providing that 'no evidence obtained by an officer
or other person in violation of any provisions of the Constitution or laws of
the State of Texas, or of the Constitution of the United States of America,
shall be admitted in evidence against the accused on the trial of any criminal
case.' Texas Laws 1925, c. 49, as amended, Texas Code Crim.Proc. s 727a
(Vernon, 1948).
UTAH State v. Aime, 62 Utah 476, 220 P. 704, 32 A.L.R. 375.
VA. Hall v. Commonwealth, 138 Va. 727, 121 S.W. 154.
TABLE F.
STATES WHICH, AFTER THE
WEEKS DECISION, OVERRULED OR DISTINGUISHED PRIOR
CONTRARY DECISIONS.
IDAHO Idaho expressly refused to follow the Weeks decision in
State v. Myers, 36 Idaho 396, 211 P. 440, but repudiated the Myers case and
adopted the federal rule in State v. Arregui, 44 Idaho 43, 254 P. 788, 52
A.L.R. 463.
**1366 ILL. After two cases
following the former state rule, Illinois adopted the federal rule in People v.
Castree, 311 Ill. 392, 143 N.E. 112, 32 A.L.R. 357.
MICH. People v. Marxhausen, 204 Mich. 559, 171 N.W. 557, 3 A.L.R.
1505 (distinguishing earlier cases on
the ground that in them no preliminary motion to suppress had been made).
MO. State v. Graham, 295 Mo. 695, 247 S.W. 194, supported the old
rule in a dictum, but the federal rule was adopted in State v. Owens, 302 Mo.
348, 259 S.W. 100, 32 A.L.R. 383 (distinguishing earlier cases on the ground
that in them no preliminary motion to dismiss had been made).
MONT. State ex rel. King v. District Court, 70 Mont. 191, 224 P.
862.
OKLA. Gore v. State, 24 Okl.Cr. 394, 218 P. 545.
S.D. State v. Gooder, 57 S.D. 619, 234 N.W. 610. But cf. S.D. Laws
1935, c. 96, now S.D. Code s 34.1102 (1939), amending Rev.Code 1919, s 4606
(all evidence admissible under a valid search warrant is admissible notwithstanding
defects in the issuance of the warrant).
TENN. Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 20 A.L.R.
639 (distinguishing Cohn v. State,
supra, Table A).
WASH. State v. Gibbons, 118 Wash. 171, 203 P. 390.
W. VA. State v. Andrews, 91 W.Va. 720, 114 S.E. 257 (distinguishing
earlier cases).
TABLE G.
STATES WHICH, AFTER THE
WEEKS DECISION, REVIEWED PRIOR CONTRARY DECISIONS AND
IN SO DOING ADHERED TO
THOSE DECISIONS.
ALA. Banks v. State, 207 Ala. 179, 93 So. 293, 24 A.L.R. 1359.
ARK. Benson v. State, 149 Ark. 633, 233 S.W. 758.
CONN. State v. Reynolds, 101 Conn. 224, 125 A. 636.
GA. Jackson v. State, 156 Ga. 647, 119 S.E. 525.
KANS. State v. Johnson, 116 Kan. 58, 226 P. 245.
ME. State v. Schoppe, 113 Me. 10, 16, 92 A. 867 (alternative
holding, not noticing Weeks).
MD. Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190. But
cf. Md. Laws, 1929, c. 194, as amended, Md. Code Ann., Art. 35, s 5 (1947
Supp.) (in trial of misdemeanors, evidence obtained by illegal search and seizure
is inadmissible).
MASS. Commonwealth v. Wilkins, 243 Mass. 356, 138 N.E. 11.
MINN. State v. Pluth, 157 Minn. 145, 195 N.W. 789.
NEB. Billings v. State, 109 Neb. 596, 191 N.W.2d 721.
N.H. State v. Agalos, 79 N.H. 241, 242, 107 A. 314 (not noticing
Weeks).
N.Y. People v. Defore, 242 N.Y. 13, 150 N.E. 585; People v.
Richter's Jewelers, 291 N.Y. 161, 169, 51 N.E.2d 690, 693, 50 A.L.R. 560
(holding that adoption og Amendment to State Constitution in same language as
Civil Rights Law, McK. Consol. Laws, c. 6, construed in the Defore case is not
occasion for changing interpretation, especially since proceedings of the
conviction which framed the amendment show that no change was intended).
N.C. State v. Simmons, 183 N.C. 684, 110 S.E. 591 (distinguishing
between evidentiary articles and corpus delicti).
ORE. See State v. Folkes, 174 Or. 568, 588‑‑589, 150
P.2d 17, 25. But see State v. Laundy,
103 Or. 443, 493‑‑495, 204 P. 958, 974‑‑975, 206 P.
290.
S.C. After granting a motion to return illegally seized property
in Blacksburg v. Beam, 104 S.C. 146, 88
S.E. 441, L.R.A.1916E, 714; South Carolina reaffirmed its agreement with the
general rule in State v. Green, 121 S.C. 230, 114 S.E. 317.
**1367 VT. State v. Stacy, 104
Vt. 379, 401, 160 A. 257, 266, 747.
TABLE H.
STATE WHICH HAS ADHERED TO
ITS PRIOR FORMULATION OF THE WEEKS DOCTRINE.
IOWA State v. Rowley, 197 Iowa 977, 195 N.W. 881 (recognizing the
Weeks case but following earlier Iowa cases).
TABLE I.
SUMMARY OF PRESENT POSITION
OF STATES WHICH HAVE PASSED ON THE WEEKS DOCTRINE.
(a) States that reject Weeks:
Ala., Ariz., Ark., Calif., Colo., Conn., Del., Ga., Kans., La.,
Me., Md., Mass., Minn., Neb., Nev., N.H., N.J., N.M., N.Y., N.C., N.D., Ohio,
Ore., Pa., S.C., Texas, Utah, Vt., Va.
(b) States that are in agreement with Weeks:
Fla., Idaho, Ill., Ind., Iowa, Ky., Mich., Miss., Mo., Mont.,
Okla., S.D., Tenn., Wash., W. Va., Wis., Wyo.
TABLE J.
JURISDICTIONS OF THE UNITED
KINGDOM AND THE BRITISH COMMONWEALTH OF NATIONS
WHICH HAVE HELD ADMISSIBLE
EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE.
AUSTRALIA Miller v. Noblet, (1927) S.A.S.R. 385.
CANADA ALTA. Rex v. Nelson, (1922) 2 W.W.R. 381, 69 D.L.R. 180.
MAN. Rex v. Durousel, 41 Man. 15, (1933) 2 D.L.R. 446.
ONT. Regina v. Doyle, 12 Ont. 347.
SASK. Rex v. Kostachuk, 24 Sask. 485, 54 Can.C.C. 189.
ENGLAND See Elias v. Pasmore, (1934) 2 K.B. 164.
INDIA ALL. Ali Ahmad Khan v. Emperor, 81 I.C. 615(1).
CAL. Baldeo Bin v. Emperor, 142 I.C. 639.
RANG. Chwa Hum Htive v. Emperor, 143 I.C. 824.
SCOTLAND See Hodgson v. McPherson, (1913) S.C.(J.) 68, 73.
*39 Mr. Justice BLACK,
concurring.
In this case petitioner was convicted of a crime in a state court
on evidence obtained by a search and seizure conducted in a manner that this
Court has held 'unreasonable' and therefore in violation of the Fourth
Amendment. And under a rule of evidence adopted by this Court evidence so
obtained by federal officers cannot be used against defendants in federal
courts. For reasons stated in my dissenting opinion in Adamson v. California,
332 U.S. 46, 68, 67 S.Ct. 1672, 1683, 91 L.Ed. 1903, 171 A.L.R. 1223. I agree
with the conclusion of the Court that the Fourth Amendment's prohibition of
'unreasoanble searches and seizures' is enforceable against the states.
Consequently, I should be for reversal of this case if I thought the Fourth
Amendment not only prohibited 'unreasonable searches and seizures,' but also,
of itself, barred the use of evidence so unlawful obtained. But I agree with
what appears to be a plain implication of the Court's opinion that the federal
exclusionary rule is *40 not a
command of the Fourth Amendment but is a judicially created rule of evidence
which Congress might negate. See McNabb v. United States, 318 U.S. 332, 63
S.Ct. 608, 87 L.Ed. 819. This leads me to concur in the Court's judgment of
affirmance.
It is not amiss to repeat my belief that the Fourteenth Amendment
was intended to make the Fourth Amendment in its entirety applicable to the
states. The Fourth Amendment was designed to protect people against
unrestrained searches and seizures by sheriffs, policemen and other law
enforcement officers. Such protection is an essential in a free society. And I
am unable to agree that the protection of people from over‑Zealous or
ruthless state officers is any less essential in a country of 'ordered liberty'
than is the protection of people from over‑zealous or ruthless federal
officers. Certainly there are far more state than federal enforcement officers
and their activities, up to now, have more frequently and closely touched the
intimate daily lives of people than have the activities of federal **1368 officers. A state officer's
'knock at the door * * * as a prelude to a search, without authority of law,'
may be, as our experience shows, just as ominous to 'ordered liberty' as though
the knock were made by a federal officer.
*47 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 *48 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.
**1369 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.
*41 Mr. Justice MURPHY, with
whom Mr. Justice RUTLEDGE joins, dissenting.
It is disheartening to find so much that is right in an opinion
which seems to me so fundamentally wrong. Of course I agree with the Court that
the Fourteenth Amendment prohibits activities which are proscribed by the
search and seizure clause of the Fourth Amendment. See my dissenting views, and
those of Mr. Justice Black, in Adamson v. California, 332 U.S. 46, 68, 123, 67
S.Ct. 1672, 1684, 1711, 91 L.Ed. 1903, 171 A.L.R. 1223. Quite apart from the
blanket application of the Bill of Rights to the States, a devotee of democracy
would ill suit his name were he to suggest that his home's protection against
unlicensed governmental invasion was not 'of the very essence of a scheme of
ordered liberty.' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152,
82 L.Ed. 288. It is difficult for me to understand how the Court can go this
far and yet be unwilling to make the step which can give some meaning to the
pronouncements it utters.
Imagination and zeal may invent a dozen methods to give content to
the commands of the Fourth Amendment. But this Court is limited to the remedies
currently available. It cannot legislate the ideal system. If we would attempt
the enforcement of the search and seizure clause in the ordinary case today, we
are limited to three devices: judicial exclusion of the illegally obtained
evidence; criminal prosecution of violators; and civil action against violators
in the action of trespass.
Alternatives are deceptive. Their very statement conveys the
impression that one possibility is as effective as the next. In this case their
statement is blinding. For there is but one alternative to the rule of
exclusion. That is no sanction at all.
*42 This has been perfectly
clear since 1914, when a unanimous Court decided 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. 'If letters and private documents can thus be seized and held and
used in evidence against a citizen accused of an offense,' we said, 'the
protection of the 4th Amendment, declaring his right to be secure against such
searches and seizures, is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution.' 'It would reduce
the Fourth Amendment to a form of words.' Holmes, J., for the Court, in
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.
Today the Court wipes those statements from the books with tis
bland citation of 'other remedies.' Little need be said concerning the
possibilities of criminal prosecution. Self‑scrutiny is a lofty ideal,
but its exaltation reaches new heights if we expect a District Attorney to
prosecute himself or his associates for well‑meaning violations of the
search and seizure clause during a raid the District Attorney or his associates
have ordered. [FN1] But there is an appealing ring in another alternative. A
trespass action for damages is a venerable means of securing reparation **1370 for unauthorized invasion of
the home. Why not put the old writ to a new use? When the Court cites cases
permitting the action, the remedy seems complete.
FN1 See Pound, Criminal
Justice in America (New York, 1930): 'Under our legal system the way of the
prosecutor is hard, and the need of 'getting results' puts pressure upon
prosecutors to * * * indulge in that lawless enforcement of law which produces
a vicious circle of disrespect for law.'
And note the statement of
the Wickersham Commission, with reference to arrests: '* * * in case of persons
of no influence ro little or no means the legal restrictions are not likely to
give an officer serious trouble.' National Commission on Law Observance and
Enforcement, Report on Criminal Procedure (1931), p. 19.
But what an illusory remedy this is, if by 'remedy' we mean a
positive deterrent to police and prosecutors *43 tempted to violate the Fourth Amendment. The appealing ring
softens when we recall that in a trespass action the measure of damages is
simply the extent of the injury to physical property. If the officer searches
with care, he can avoid all but nominal damages‑‑a penny, or a
dollar. Are punitive damages possible? Perhaps. But a few states permit none,
whatever the circumstances. [FN2] In those that do, the plaintiff must show the
real ill will or malice of the defendant, [FN3] and surely it is not
unreasonable to assume that one in honest pursuit of crime bears no malice
toward the search victim. If that burden is carried, recovery may yet be
defeated by the rule that there must be physical damages before punitive
damages may be awarded. [FN4] In addition, some states limit punitive damages
to the actual expenses of litigation. See 61 Harv.L.Rev. 113, 119‑‑120.
Others demand some arbitrary ratio between actual and punitive damages before a
verdict may stand. See Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev.
1173, 1180‑‑1181. Even assuming the ill will of the officer, his
reasonable grounds for belief that the home he searched harbored evidence of
crime is admissible in mitigation of punitive damages. Gamble v. Keyes, 35 S.D.
644, 153 N.W. 888; Simpson v. McCaffrey, 13 Ohio 508. The bad reputation of the
plaintiff is likewise admissible. Banfill v. Byrd, 122 Miss. 288, 84 So. 227.
If the evidence seized was actually used at a trial, that fact has been *44 held a complete justification of
the search, and a defense against the trespass action. Elias v. Pasmore (1934)
2 K.B. 164. And even if the plaintiff hurdles all these obstacles, and gains a
substantial verdict, the individual officer's finances may well make the
judgment useless‑‑ for the municipality, of course, is not liable
without its consent. Is it surprising that there is so little in the books concerning
trespass actions for violation of the search and seizure clause?
FN2 See McCormick, Damages,
s 78. See Willis, Measure of Damages When Property is Wrongfully Taken by a
Private Individual, 22 Harv.L.Rev. 419.
FN3 Id., s 79. See
Fennemore v. Armstrong, 6 Boyce 35, 29 Del. 35, 96 A. 204.
FN4 'It is a well settled
and almost universally accepted rule in the law of damages that a finding of
exemplary damages must be predicated upon a finding of actual damages.' 17 Iowa
L.Rev. 413, 414. This appears to be an overstatement. See McCormick, supra, s
83; Restatement of Torts, s 908, comment c.
The conclusion is inescapable that but one remedy exists to deter
violations of the search and seizure clause. That is the rule which excludes
illegally obtained evidence. Only by exclusion can we impress upon the zealous
prosecutor that violation of the Constitution will do him no good. And only
when that point is driven home can the prosecutor be expected to emphasize the
importance of observing constitutional demands in his instructions to the
police.
If proof of the efficacy of the federal rule were needed, there is
testimony in abundance in the recruit training programs and in‑service
courses provided the police in states which follow the federal rule. [FN5] St.
Louis, for example, demands extensive training in the rules of search and
seizure, with emphasis upon the ease with which a case may collapse if it
depends upon **1371 evidence
obtained *45 unlawfully. Current
court decisions are digested and read at roll calls. The same general pattern
prevails in Washington, D.C. [FN6] In Dallas, officers are thoroughly briefed
and instructed that 'the courts will follow the rules very closely and will
detect any frauds.' [FN7] In Milwaukee, a stout volume on the law of arrest and
search and seizure is made the basis of extended instruction. [FN8] Officer
preparation in the applicable rules in Jackson, Mississippi, has included the
lectures of an Associate Justice of the Mississippi Supreme Court. The
instructions on evidence and search and seizure given to trainees in San
Antonio carefully note the rule of exclusion in Texas, and close with this
statement: 'Every police officer should know the laws and rules of evidence.
Upon knowledge of these facts determines whether the * * * defendant will be
convicted or acquitted. * * * When you investigate a case * * * remember
throughout your investigation that only admissible evidence can be used.'
FN5 The material which
follows is gleaned from letters and other material from Commissioners of Police and Chiefs of Police in twenty‑six
cities. Thirty‑eight large cities in the United States were selected at
random, and inquiries directed concerning the instruction provided police on
the rules of search and seizure. Twenty‑six replies have been received to
date. Those of any significance are mentioned in the text of this opinion. The
sample is believed to be representative, but it cannot, of course, substitute
for a thoroughgoing comparison of present‑day police procedures by a completely
objective observer. A study of this kind would be of inestimable value.
FN6 E.g., Assistant
Superintendent Truscott's letter to the Washington Police Force of January 3,
1949, concerning McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191.
FN7 Recently lectures have
included two pages of discussion of the opinions in Harris v. United States,
331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.
FN8 Chief of Police John W.
Polcyn notes, in a Foreword to the book, that officers were often not properly
informed with respect to searches and seizures before thoroughgoing instruction
was undertaken. One of their fears was
that of 'losing their cases in court, only because they neglected to do what
they might have done with full legal sanction at the time of the arrets, or did
what they had no legal right to do at such time.'
But in New York City, we are informed simply that 'copies of the
State Penal Law and Code of Criminal Procedure' are given to officers, and that
they are 'kept advised' that illegally obtained evidence may be admitted in New
York courts. In Baltimore, a 'Digest of Laws' is distributed, and it is made
clear that the *46 statutory section
excluding evidence 'is limited in its application to the trial of misdemeanors.
* * * It would appear * * * that * * * evidence illegally obtained may still be
admissible in the trial of felonies.' In Cleveland, recruits and other officers
are told of the rules of search and seizure, but 'instructed that it is
admissible in the courts of Ohio. The Ohio Supreme Court has indicated very
definitely and clearly that Ohio belongs to the 'admissionist' group of states
when evidence obtained by an illegal search is presented to the court.' A
similar pattern emerges in Birmingham, Alabama.
The contrast between states with the federal rule and those
without it is thus a positive demonstration of its efficacy. There are apparent
exceptions to the contrast‑‑Denver, for example, appears to provide
as comprehensive a series of instructions as that in Chicago, although Colorado
permits introduction of the evidence and Illinois does not. And, so far as we
can determine from letters, a fairly uniform standard of officer instruction
appears in other cities, irrespective of the local rule of evidence. But the
examples cited above serve to grand an assumption that has motivated this Court
since the Weeks case: that this is an area in which judicial action has
positive effect upon the breach of law; and that without judicial action, there
are simply no effective sanctions presently available.
I cannot believe that we should decide due process questions by
simply taking a poll of the rules in various jurisdictions, even if we follow
the Palko 'test.' Today's decision will do inestimable harm to the cause of
fair police methods in our cities and states. Even more important, perhaps, it
must have tragic effect upon public respect for our judiciary. For the Court
now allows that is indeed shabby business: lawlessness by officers of the law.
*47 Since the evidence
admitted was secured in violation of the Fourth Amendment, the judgment should
be reversed.
**1372 *40 Mr. Justice DOUGLAS,
dissenting.
I believe for the reasons stated by Mr. Justice BLACK in his
dissent in Adamson v. California, 332
U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903, 171 A.L.R. 1223, that the
Fourth Amendment is applicable to the States. I agree with Mr. Justice MURPHY
that the evidence obtained in violation of it must be excluded in state
prosecutions as well as in federal prosecutions, since in absence of that rule
of evidence the Amendment would have no effective sanction. I also agree with
him that under that *41 test this
evidence was improperly admitted and that the judgments of conviction must be
reversed.
END OF DOCUMENT