Wolf v. Colorado, 338 U.S. 25 (1949)

(Cite as: 338 U.S. 25, 69 S.Ct. 1359)

WOLF

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)

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.