*1 STATES. DAVIS UNITED 10, 1946. February 1946. Decided June Argued No. 404. *2 Mezansky Samuel argued the petitioner. cause for him With on Irving Spieler the brief were and Moses Polakojj. Cooney
John J. argued the cause for the United States. him on With McGrath, brief were Solicitor General Robert S. Erdahl and Leon Ulman. Douglas opinion delivered the of the
Mr. Justice Court.
Petitioner was convicted under an charging information him with unlawfully having his possession 20, June 1944,168 gasoline ration coupons, gallons 504 representing gasoline.1 judgment 2The of conviction was sustained 1 charged (a) information violation of of the Act of June § 28, 1940, 676, 54 Stat. by May as amended the Act of by III, Stat. 236 and Title 301 of the Second War Powers ofAct § 27, 1942, March 56 Stat. App., Supp. 50 U. S. C. IY 633. Sec. § (a) provides part: “(2) . . . Whenever the President is satisfied that the fulfill- requirements
ment of for the defense of the United States will shortage result in a supply any any or material facil- ities for private defense or for export, account or for the President may allocate such material upon or facilities in manner, such such conditions and to such extent as he shall necessary deem or appropriate defense. public in the interest promote and to the national “(3) The President shall be entitled to obtain such information from, require make such reports such keeping and the of such by, records inspection books, of the records, writings, and other over the 140) 2d (151 F. Appeals Court Circuit resulted search was an unlawful there
objection that trial at the their use coupons in the seizure inves- such ., . and make any person . of, premises property or discretion, in his appropriate, necessary or may tigations, as be provisions of this or administration enforcement (a). subsection any prohibited, willfully Any performs act “(5) person who any by, provision any required willfully perform act or fails to thereunder, (a) any rule, regulation, or order or of this subsection guilty issued, a mis- be shall whether heretofore or hereafter conviction, than demeanor, shall, fined not more upon year, or both.” $10,000 imprisoned not more than one Administration, power had been which that *3 of Price The Office 5C, gasoline. No. delegated, Ration Order issued ration orders for part 16423), provided in as (8 Reg. it read on June Fed. as follows: any possession in Sec. 1394.8177 (c): person shall have his “No inventory any coupon book, certificate, folder, gasoline deposit or (whether coupon book ration not such was issued a or other or coupon or as was issued as a ration book and whether or not such book) any identifying folder, evidence, part of a ration or other or book, person, such except person, agent or to whom of the acquired by was coupon, or whom it certificate or folder issued provisions Book No. 5C.” accordance with the of Ration in [sic] (a): "Every distributor 1394.8217 dealer and intermediate Sec. gasoline deposit credits, gasoline, shall be accountable for all ration certificates, coupons by him. received Gasoline and other evidences for deposit certificates, coupons received or and other evidences at be, place when the a of shall at all times dealer or distributor business by place open business, him at of business retained transact they deposited received, or in a ration bank account for were they business, place maintained for until such time as are that of exchange gasoline, or to a or distributor for surrendered dealer pursuant aggre- surrendered Ration Order No. 5C. The otherwise gallonage gasoline deposit certificates, coupons gate of and other value place of deposit hand for each of business a dealer evidences on or on times, equal distributor, shall, to, intermediate at all be but not gasoline of, gallons required in excess the number of of which would storage capacity place business, such of to fill as shown registration, Reg. ...” 8 Fed. current certificate of 15981. of Weeks v. violation of the rule 232 U. S. Lefkowitz, United States 285 U. S. and related petition cases. case is here on a writ for of cer tiorari which granted we because of importance question presented.
Davis was president of a name corporation by the Laundry Corporation Davis Auto which maintained a gasoline filling station in York City. New He was sus- pected running gasoline. a black market Several agents place gasoline drove near the station and observed it a few hours. They had no search warrant nor a warrant for the arrest Two petitioner.
agents gas. drove their cars into the station and asked for Petitioner was not present at the time. But attend- an ant, an employee petitioner, was present and waited Through on them. each agents her of the two succeeded in purchasing gas gasoline by pay- without ration stamps ing twenty gallon cents a the ceiling Shortly above price. thereafter they selling gasoline arrested her for without coupons ceiling price. above the She said doing following so petitioner’s she was instructions. While being questioned by she was agents, petitioner returned to the station his car. They immediately *4 arrested him charge on the same as the attendant2 and searched his They car. demanded and him received from keys the tin boxes gasoline attached to the pumps and in gasoline which ration coupons kept. were One themof began to examine and gasoline storage measure the tanks and their contents. It soon appeared gasoline that the ration coupons found the tin boxes were not sufficient
2Selling gasoline receipt coupons, selling without gasoline ration ceiling price, unlawfully excess of the possessing coupons ration (a), a supra, is misdemeanor. See felony 1. A note is an § offense punished by imprisonment death or exceeding for a year. term one 335,18 Criminal Code TJ.S. C. 541. § § storage of the capacity which the amount the
to cover by sales. diminished had been tanks storage tanks was under the this examination While his office agents the into with two of went way, petitioner of a office consisted The premises.3 the was on which in the questioned was inner room. He waiting room and the A led from door hour. waiting for about an room kept. were records where the inner room waiting room into at first refused locked. Petitioner The door to was tanks of the that the examination it. When told open the assured coupons, petitioner shortage a had revealed shortage to cover the coupons sufficient agents that he had The officers asked in the room. were locked they and that on fact their demand based coupons and to see the Government property of coupons that were per- only custodian. Petitioner was petitioner Before however, in to unlock the door. sisted, his refusal filing coupons it, from a cabinet he did unlock took long rests, gave agents. them to the which the conviction agents threatened he did because He testified that so if The District Court the door he did not. to break down One episode. not believe version petitioner’s did Davis that “Q. try Did to convince agent you testified: leading private door office? ought open he that into I him told that he try A. I to convince him. didn’t you him if Q. door. Did tell open that would have I tell it down? A. did not you he would break did appeared him at And it that while the two all.” waiting room, talking with agents were Davis flashlight through shining agent was the rear another trying inner room apparently an window of the outside building long. filling station was located in about feet street; pumps set One set of was near the entrance to one the other opposite end near the entrance to another street. The at the half-way pumps. office was located about between the two sets of *5 when According agents, to raise the window. one said, saw he “He don’t need do that. petitioner that, I will six weeks later open the damned door.” Some arraigned. was on a warrant and petitioner arrested petitioner The District found that had consented Court search and that his seizure and consent volun- tary. The Circuit did not Appeals Court disturb finding, although expressed concerning some doubt it. In view, coupons its the seized were introduced properly into seizure, being evidence because the search and inci- dental to the arrest, regardless peti- were “reasonable” tioner’s consent.
The Fourth provides: Amendment right
“The of the to be people per- secure their sons, houses, against papers, effects, unreasonable searches and seizures, violated, shall not be and no issue, Warrants upon probable cause, shall but sup- ported by affirmation, Oath or particularly describing place searched, and the persons or things to be seized.”
And the Fifth provides part Amendment that “No person . . . shall be compelled any criminal case to against be witness . .” himself .
The law of searches and seizures as
revealed
decisions
this Court is the product
interplay
provisions. Boyd
these two
v. United
constitutional
States,
588 dealing areWe private papers. and seizure of search gaso- with but documents, or private papers with
here not prop- private became which never coupons ration line property times the at all remained of holder but erty and recall subject inspection and of Government by it. was rationed. here, gasoline relevant
At the times of ration only receipt sell it lawfully Dealers could of supplies their could receive in turn They coupons.4 coupons.5 delivery of only on distributors gasoline from the coupons times have dealer at all It that a required to but equal inor a bank of business place on hand at his storage fill necessary to his gallonage not excess of the in contravention obtained coupons tanks.6 Possession remained coupons regulations was unlawful.7 and of Price Administration8 the Office property they were subject by it.9 And all times to recall were at all times.10 subject inspection at 4 1394.8152,1394.8153. 5C, supra, note See Ration Order No. §§ 5Id., 1394.8207. § 6 Id., (a), supra. 1394.8217 § 7Id., (c), supra, 1. 1394.8177 note § deposit (b) provided "gasoline 8 Id., all certificates 1394.8227 § are, when books, coupons, other and coupon all and evidences and remain, property of of Price Administra the Office issued shall tion.” (a): Id., 1394.8104 § coupons, inventory coupons, coupon books, bulk other “All remain, property are, . evidences of the Officeof Price Administration. The istration or recall any . . and when issued shall Office Price Admin- revoke, issue, may suspend, cancel, may refuse to any may require the surrender and return ration coupon, inventory coupons or evi- coupon book, bulk other during suspension pursuant . or can- dences . . or to revocation cellation, public whenever it deems it to be in the interest to
do so." (b) Id., provided part: 1394.8227 § by any investigator “Upon demand made of the Office of Price by any officer, police constable, Administration or or other law dealing private We are thus with papers docu- public ments with custody but a citizen. property The distinction between the two property classes the law recognized of searches and seizures was in Wilson U. S. where the Court stated:
“But the physical custody incriminating of docu- ments protect does not of itself the custodian their compulsory production. question The still remains with respect to the nature of the documents and the in capacity which may are held. It they yet appear they subjects that of character which are them to scrutiny demanded and that the custo- dian voluntarily has duty assumed a which overrides his claim in privilege. clearly implied of This was Boyd Case where the papers fact that the involved were the private papers of the claimant was con- stantly emphasized. Thus, public the case of records and official documents, made or in the kept administration public office, of of fact actual pos- custody session or of lawful not justify would resisting officer inspection, though even the record by was made himself and would supply the evidence of his criminal If dereliction. he has embezzled the any enforcement officer state, county, of the United States or of government, every person or produce local inspection shall any inspection gasoline deposit tire record any and certificate and gasoline coupon books, coupons, and other pos- evidences in his control, or valid, invalid, session whether expired void . . . in accordance with Investigators Ration Order No. 5C. police Office of Price officers, Administration and all constables and other law enforcement officers the United or of any state, county government or local are authorized to make inquiries any person may such pertinent be to determine whether a violation of Ration Order being No. 5C been or has is committed, and are authorized to receive the surrender all gasoline deposit gasoline certificates, coupon books, coupons and acquired by any other evidences person otherwise than in accord- ance with Ration 5C, Order valid, No. invalid, whether void or expired.” As power to the inspection given by the Act of June see (a) (3), supra, note § 1. accounts he public moneys and falsified
public them withhold and his records cannot seal official con- plea authorities prosecuting from the against self-crimination. privilege stitutional documents only public to principle applies by law to required offices, but also records public informa- may be suitable that there kept order sub- appropriate are the tion of transactions regulation the enforcement governmental and jects of privi- There the validly established. of restrictions cannot be private papers, lege, which exists as maintained.” English and Amer- analyze proceeded
The Court added, pp. 381-382: ican authorities in this class ground of decision “The fundamental character of their cases, where, virtue books them, law applicable and the rules of by the subject to examination are held papers privilege has no demanding authority, custodian *8 tend although their contents production to refuse custody their he assuming him. In to criminate permit to obligation the incident accepted has inspection.” which the property distinction is between to
The Govern- to which it property is to and possession ment entitled (3d ed.) Evidence 2259c. Wigmore § is not.11 8 on See Boyd noted in another connection in v. This distinction was States, supra, pp. 623-624, said: where the Court goods, seizure of stolen or forfeited or “The search for and goods thereof, payment liable to duties and concealed to avoid totally things from search for are different a and seizure a obtaining purpose of private man’s books and for the papers contained, using information therein or of them as evidence differ toto coelo. things case, him. The two In one government possession property; the in is entitled to the of the goods is is the other it not. The seizure of stolen authorized by law; goods the common and the seizure of forfeited for laws, or a breach payable the revenue concealed to avoid the duties them, by English has been authorized statutes for ‘past; at least two centuries and the like seizures have been by authorized our own revenue acts from the commencement important repercussions The distinction has had in the law, beyond by that indicated Wilson v. United
supra. For an
who
property
owner of
seeks to take
unlawfully
possession
long
from one who is
has
been
recognized
greater
to have
than he
have
leeway
would
right
for his
possession.
ownership
but
to
The claim of
justify
will even
trespass
a
and warrant
otherwise
steps
Anthony,
unlawful. Richardson
273;
v.
Vt.
Madden
Brown, App.
454, 40
Dooley,
Div.
N. Y.
714;
S.
State v.
We do seeking gov- that officers to reclaim property ernment may proceed lawlessly subject and to no restraints. Nor do suggest right inspect we that the the regulations subjects general under dealer to search papers of his for learning he purpose whether has any coupons subject inspection seizure. nature of the coupons important merely here as indi- that cating the officers did not permissible exceed the limits of persuasion obtaining them. government. of the passed by Congress The first statute regulate duties, July 31, collection act of 1 Stat. 29, 43, provisions contains to this effect. As this passed act was
by
Congress
proposed
the same
adoption
original
Constitution,
amendments to the
it is
clear that
members of
body
regard
did not
searches and seizures of this kind as
'unreasonable,’
they
are
prohibition
not embraced within the
So,
of the
also,
supervision
amendment.
authorized
exercised
officers of the revenue over the
manufacture
custody
articles,
of excisable
and the entries thereof in books
required by
kept
law
inspection,
to be
necessarily
for their
are
excepted out
category
of unreasonable searches and seizures.
*9
So, also, the
which provide
laws
for the search and
of
seizure
things
articles and
in his
which it is
person
unlawful for a
to have
possession
purpose
for the
of
disposition,
issue or
such
coin, lottery
as counterfeit
tickets, implements
gambling, &c.,
of
are
category.
not within this
Dana,
Commonwealth v.
2 Met.
(Mass.) 329.”
Hall,
And see Tennessee v.
548,
Tenn.
851;
51 S. W. 2d
State
Knight,
N.
947;
M.
279 P.
Bennett,
State v.
315 Mo.
They appeared had been a misdemeanor that evidence They had ocular or was an aider petitioner which committed, a crime attendant, made the she to the since, according abetter,12 instructions. Since to petitioner's illegal pursuant sales coupons from receipt of being made without were sales no (unless, as was at it was fair to assume customers, that being liquidated) business was suggested, the time adequate supply coupons a had somewhere petitioner which was inspection storage tanks. The his replenish to the attached of the tanks inspection an made was adjacent to was of the office And the search pumps. his busi- transacted petitioner where place pumps —the coupons demanded Moreover, the officers ness. of the Government they property were the basis that And of them. merely the custodian petitioner Only the con- general, search. exploratory there was no coupons were demanded; only coupons were traband taken. this case from such cases distinguished
These facts States, Amos v. officers with- 255 U. S. where residence, private on a swoop out a search warrant down through pressure, exertion of official obtain admission filling station was private property. and seize business, officers’ private not a residence. The place property right. coupons to the was one For the claim government property. demanded to see were they during And business hours. the demand was made What- inspection may regulations, be the limits under the ever officers, impotent require not so as to law enforcement right inspect place business, who have the to stand 332,18 550, provides: Code S. Criminal U. C. § § any directly constituting commits act “Whoever an offense any aids, abets, law the United counsels, defined or commands, induces, procures commission, principal.” its is a *10 mute when such clear evidence of is activity criminal known to them. inspect public
Where the officers seek to documents at the place they required of business where are to be kept, permissible limits of not persuasion are so narrow as where private papers sought. right. are The demand is one of When the persuaded by argument custodian is duty over, is his to surrender them and he hands them duress and coercion readily implied will not be so as where private papers are involved. The custodian this situa- against tion is not protected production of incriminat- ing documents. Wilson supra. The strict test of consent, designed an protect accused against production incriminating no evidence, place has right here. The of privacy, course, remains. But, we said, have filling station a place business, was not private right residence. The to inspect existed. And where one is seeking to reclaim his property unlawfully possession of another, the normal restraints intrusion one’s as we privacy, have seen, are relaxed. The District Court found, hearing after the witnesses, that petitioner although consented —that he at first refused to turn the coupons over, he soon was persuaded to do so and that force or threat of force was employed persuade According him. to the District Court, “persuaded the officers him that it would abe thing better for him permit them to examine” the coupons; “they talked him into it.” We cannot say as a matter of law that that finding was erroneous. The public character of the property, the fact that the demand during made business hours at the place of business where the coupons required were to be kept, the existence right inspect, the nature of request, the fact that the initial refusal to turn coupons over was soon followed acquiescence the demand —these circum- *11 District Court. of the the conclusion support stances all without reach- judgment below affirm the accordingly We the search for that consent whether but ing question were reasonable. the arrest incidental and seizure
Affirmed. in the consideration part took no Mr. Justice Jackson of this case. or decision whom Mr. Justice with Frankfurter,
Mr. Justice Murphy dissenting. concurs, merely squalid a case concerns aspects
In its surface this rationing. system gasoline to evade the wartime effort It perspective. in that disposed it should not be But respect the test put little case to petty not the first deemed founders of this nation principles which the directly related For the case is society. essential for a free whereby chapters process of the in the historic great to one protected liberty constitutionally civil was achieved against future inroads. it, presents as I see this issue: decision,
The Court’s compelled be accused could not May papers an judicial process a a search warrant be produce by even him his will of the against by taken from officers law in judicial such for use as evidence process without against may him? prosecution process criminal Judicial production of documents either because compel protection of the Fifth Amendment self- of the crimination, or, case, this because the authorization by Congress search is withheld a situation warrants The present.1 apparently like Court rules that be- gasoline subject regulation, cause the business was petitioner gasoline coupons was arrested for the sale of without price greater by and at than that authorized of Price Office ceilings; prosecuted illegal possession Administration he was for the search seizure such documents without a warrant is not an unreasonable search and seizure condemned the Fourth Amendment. To hold that the search this legal case was is to hold that a search which could not justified under a is lawful search warrant without it. I cannot escape conviction that such a view Fourth travesty Amendment makes a the long and of legislation course of which Congress applied Amendment.
Where search is made authority under the of a warrant *12 judicial from a source, issued of the scope search must be confined to specific of the authorization warrant. It cannot be that the Constitution meant to it make legally advantageous not to warrant, have a so that the police may freely roam and have the courts retrospectively hold that the search that was made was “reasonable,” reason being judged ableness from the point obtaining of view of relevant I evidence. had supposed that that was pre cisely what the Fourth Amendment was to stop. meant “The Government could desire its possession only to use it as against evidence the defendant and for to search seize it for was unlawful.” Gouled v. purpose such 298, 310. 255 U. S.
There is indeed private a difference between papers and papers having bearing. also a public Private papers an accused cannot be through legal process seized even because their prohibition use would violate the of the Fifth Amendment against self-crimination. So-called public papers papers in which public has an interest — gasoline ration documents. These offenses are misdemeanors. 176,179,50 Stat. App. (5). U. C.S. 633§ Espionage The Act limits the issuance search warrants to those property sought in which the embezzled, stolen or used as a felony, means committing a illegally foreign or used aid a nation. 217, 228,18 40 Stat. U. S. C. 612. The documents involved in this § case do not come any categories. within of these evidence a may serve they which than that
other indi- things in an seized, like all other but may case— only prop- upon be seized can they possession vidual’s corporate amenability safeguarded search. erly corpora- that a means compulsion to testimonial papers make claim to corporation, cannot is tion, because the custodian Nor can of self-crimination. privilege against produc- their them immunize corporate books testimony carry they may also because tion court give free- Amendment does The Fourth him. Subject to familiar compulsion. dom from testimonial obligation give testi- under every man is qualifications only exacted under obligation can be But that mony. Anglo- precious deemed judicial sanctions are may be the Merely there because American civilization. litigation does not make documents available duty to fraudulently may forcibly or police officers mean right to be let alone protection This obtain them. judicial compulsion precisely except responsible under express meant and to what the Fourth Amendment safeguard. *13 issue lurks the Court’s
An more even fundamental the locus explicit phrase if casual but about opinion a business, of a place of the search and seizure as “a legal carry residence” is intended to relevant private way saying If is indirect that implications. this an un- homes only the Fourth Amendment secures private searches but not reasonable and seizures offices— lawyers, trade unions and physicians offices of and enterprises— organizations, other of business and scientific sudden drastic break then indeed would constitute a and of the and history with the whole Fourth Amendment applications this Court. See Olmstead by its States, 277 cited in 438, 477, U. S. and cases footnotes I 5, 6, believe civil and 7. cannot that a vast area of words, was thus out a few wiped by liberties meant to argument without prior consideration. jeal- far
The course of decision this Court has thus ously by enforced the free principle society of a secured prohibition of unreasonable and Its searches seizures. safeguards are process not to be worn of devital- away by izing interpretation. given The approval to what today by was arresting done officers this case indicates that danger we are in Bill forgetting Rights that experience police reflects It not only with excesses. is under Nazi rule that are to free- police inimical excesses easy light dom. It is to make scrupulous of insistence on regard the safeguards for of civil when invoked liberties unworthy. History on behalf of the easy. It is too bears testimony by disregard rights liberty that such are extinguished, heedlessly stealthily, at then and first, in the brazenly end. part long process
The issue this case of a historic and proper problem compels consideration of the before us rather extended discussion. These are the circumstances give that rise to problem. our For operations some time gasoline by corporate station owned under Davis form had been suspect of Price Administra- Office tion. day questioned On the seizure, O. P. A. three investigators and City two New York kept detectives watch on the station for several hours. One of O. P. A. men car drove his to the pumps gas. for After the attend- ant had filled his he tank, told when her, coupons, asked for that he had none. then higher She demanded a price gasoline paid he with a marked five dollar bill. Later, another investigator repeated performance. this Then five all officers station, went into the notified the attendant arrest, she under requested *14 from obtained her the two bills marked and a card on which she had recorded the ques- sales. While the girl’s the station. into Davis drove proceeding, was still
tioning charged he was and immediately searched His car was coupons. without ceiling selling gas prices over with then The officers charges misdemeanors. were These the locked keys from Davis for received demanded and coupons deposit for the intended pumps boxes on the were of the officers sold. While some gas received the amount checking discrepancy in between engaged boxes, Davis gas storage coupons tanks and the in his outer room agents two of the an taken he coupons him which gas demanded from They office. up numbers make claimed to have sufficient stubbornly refused in the He deficiencies locked boxes. “he would the officers that the insistence of one of despite Finally, his office. open private that door” to have light into the office from another officer flashed a when window and evinced an intention to force an outside he door. took window, Thereupon Davis unlocked the from them to filing some cabinet and handed envelopes agents. envelopes stamps These contained then taken prosecution. formed the basis of the He was headquarters eventually A. questioned, to O. P. but into go. allowed to Several weeks later he was taken illegal custody charged possession and then with the charge also gasoline ration documents. This is misdemeanor.
The petitioner timely suppression made motions for the evidence, see v. United 308 U. S. Nardone 338, 341-42, claiming they that were seized and illegally barred as evidence him. The trial court denied ground voluntarily these motions on Davis had the stamps turned over to the officers. The Court Circuit of Appeals the conviction not accept sustained but did the District Court’s view that Davis had surrendered the own free stamps his will. What the Circuit Court Appeals thought matter best expressed about *15 judge its own found that Davis’ consent language: “The ‘voluntarily’ given, for that reason denied need decide suppress motion to the evidence. We not wrong, case finding dispose that that is for we can we doubt upon grounds; other but must own some whether a consent circumstances obtained under such must regarded ‘voluntary.’ should as Davis properly known, have under as were was, he that officers arrest long ceremony, not stand one likely very upon but way another, 2d would enter the office.” F.
142.
reject
finding
One must
that
District Court’s
Davis' consent went with his
of the documents
surrender
unless
to hold
every
one is
that
to the imminent
submission
superior
exertion of
is
if
is
force
consensual
not
force
applied.
finding
physically
The District
that
Court’s
voluntarily
Davis
surrendered the documents is
one
findings
of those
of facts which
appropriately calls
our acceptance.
finding
conflicting
When such a
involves
credibility
witness,
advantage
evidence or the
of a
of having seen or heard
bemay
a witness
decisive. But
place
here the issue is not as to what took
but as to the
significance of what
And
place.
took
when a district
finding
court’s
of a so-called fact
as it
is as interwoven
is
with
here
consequences,
accept
constitutional
we cannot
a finding whereby the constitutional
issue
predeter-
mined.
are
by findings
We
not bound
operate
that
cryptic constitutional
even
they
determinations
when
come here, unlike
present case, supported
by both
lower
See
Appalachian
courts.
United States v.
Power
Co., 311 U.
S.
404. To
say
yielding
that
to con-
pressure
arresting
tinuous
officers, accompanied by
minatory
manifestations
resort to self-help, constitutes
a voluntary yielding,
disregard
is to
ordinary experience.
This Court
preferred not to do that
Amos v. United
States,
mission to
Inasmuch
law, “implied coercion.”
matter of
was, as a
the Fourth
choice,”
duress involves
“as conduct under
*16
every
finding
by
nullified
hardly
Amendment
is
to
“voluntary.”
See
overpowering force
short of
submission
Comm’n, 248 U. S.
Public Service
R. Co. v.
Union Pacific
70.
to
sur-
Davis’
This
attributes voluntariness
Court also
it
because
it does so not
of the documents. But
render
free choice.
an exercise of
finds that what Davis did was
the
the Circuit Court
question
doubt of
It does
was,
Davis
the
obtained from
whether
consent
Appeals
de-
fact,
act. The Court
voluntary
psychological
aas
what the officers
from the fact that
rives voluntariness
But,
give
coupons.
Davis
were ration
compelled
up
to
assign
ordinary
private,
to
to
words
esoteric
surely, this is
rejects
meaning
“vol-
meaning.
usage
such
Common
it.
In con-
indulged
law
not heretofore
untary” and
has
coerced, the
sidering
freely given
was
whether evidence
always
“voluntary”
everybody
what
by
has
meant
law
the
turn on
by
else means
it. To make voluntariness
response
the nature
the
quest,
nature of the
instead of on
to
sought
the
person
documents,
control of
of which the law
distort familiar notions on
basis
adjudged legal consequences. The Court
has heretofore
argument2 which the
accepts the Government’s
Circuit
2
only
Gov
A few words
need be said about
the cases on
amenability
with
ernment
relies. Most
them deal
of documents
States,
Wilson v. United
production upon legal process.
S.
221 U.
to
Insel,
Bowles,
Cudmore
91;
App.
Bowles
361;
v.
2d
148 F.
v.
U. S.
Rodgers
697;
992;
F. 2d
v.
138 F. 2d
D. C.
Fleming Montgomery
Co.,
others,
Ward &
v.
2d
In
114 F.
384.
given
inspect
papers
pro
with
in accordance
consent
Creamery Co.,
statute. Bowles v. Beatrice
governing
visions of the
Co.,
Bros.
146 F.
774;
566;
146 F.
Bowles Glick
Lumber
2d
2d
Laboratories,
In re Sana
(subsequent
inspection
115 F. 2d
to the
gravely
rejected
because
rejected,
of Appeals
Court
differently phrased,
Though
implication.
disturbed
its
this
favor evoked
argument
which has here found
“I
Frank:
Judge
concurring opinion
comment
I
important
because
think
only
add a few words
following argument on
rejection of the
underscore our
chiefly relied:
Attorney
United States
which the Assistant
business
government validly regulates any
Whenever the
regulation
requirement
in its
a valid
and includes
inspection,
which shall be
to official
kept
open
records be
inspection
refusal
the records for such
produce
then
and seize the
premises
the officers to enter the
authorizes
argument was that refusal
records. One variant of the
constitutes,
circumstances
permit inspection
such
enter; another
legal equivalent of consent to
effect, the
*17
in
conduct of the
that,
circumstances,
variant was
such
entry
interpreted
defendant must be
as consent
circumstances,
very
the
same conduct
although,
other
another,
regarded
way
wbuld be
as refusal.
In one
or
urged that obstruc-
Attorney
the Assistant United States
the
right
inspect deprived
tion of the
of the officers to
wrongful taking;
procured
there was a
the court admitted the evidence
evidence);
inspection,
as a result
the
the documents from
but barred
Drug
Spring
States,
852;
C. M.
Co. v. United
12 F. 2d
United States
Kempe,
Supp. 905;
Stitzinger,
Supp. 94;
59 F.
Bowles v.
59 F.
Candy Co.,
527;
Sherry,
Supp.
Bowles v. Curtiss
United States v.
F.
(here
defendant 2d at 144. 151 F. and seizure.” search con- difference important is an there Of course between possessors their afforded protection stitutional having public and documents exclusively private papers States, v. United 383, 393- Cf. Weeks 232 U. S. aspects. 94; Gouled v. 308-309. But 255 U. S. appropriate that under difference is essence of the subject are not even papers wholly private circumstances once papers, whereas other compulsion to testimonial as evidence. legally obtained, are available they have been controversy proper been secured coupons Had the at the the defendant they could be used search the restric- does not eliminate But their character trial. subject the person Amendment and of the Fourth tions documents, against protest, his of such possession unwarranted. and seizures otherwise searches argument opens of the Government’s acceptance right privacy. alarming upon an vista inroads sought protect by right This the Fourth Amendment prior intrusion without general police its interdiction of issued through search warrants judicial authorization aflirmaticfn, Oath or cause, supported by “upon probable searched, and describing place to be particularly things to be seized.” Amendment IV. persons in the forces day every person the other armed Only technically in his O. P. A. documents possession had *18 A., the situation were the of the O. P. and same property coun- pass tomorrow; most businesses the may come kept to be try possession required are of documents authority; every pros- and there is under federal State this network records will be extended. pect required that protection It misconceives the issues to assume that urged here would serve as a shield privacy for giant great scrutiny of the records of industries or not differ- trade unions. The Fourth Amendment does any big enterprise. But, between and small entiate through event, economy extensively while our is carried form, figures available show that corporate latest income-reporting corporations only of the multitudinous $100,000. cent a net per about five have income above It cannot be that the constitutional immu- highly prized nity police intrusion, from as it affects activities that permeate life, our national is now to be curtailed or viewed with laxity. only reasoning sup-
The Court’s its own opinion has port Nothing it. this Court has decided or ever States, gives strength. sanctioned it Wilson v. United U. S. invoked by very Court was a different story. That case was concerned with the difference be- amenability corporation tween the of a to testimonial compulsion immunity individual, and the of an under circumstances, duty give relevant to be free from the testimony. The core of the here Government’s claim right judicial to seize documents the absence of process. demanding The difference between documents legal process seizing without them on the basis process, such is the protection difference between the civil liberties and their invasion. The difference is the essence of the Fourth Amendment.
Indeed, unhappy so was the with experience police search for “in papers and articles home or Gouled office,” v. United 298, 308, 255 U. S. that was once maintained that no search and seizure is valid. To Lord Coke has been attributed the proposition that warrants could not be secured even for property. stolen But see Institute, Coke, Fourth English 176-77. Under early doctrine even search warrants appropriate authority could issue only goods. stolen See 2 Hale, Pleas Crown, 113-14, 149-51; Gabbett, Criminal Law (1843) 156 seq.; (5th et Chitty, 1847) Criminal Law ed., 64 et seq.; (2d Barbour, ed., 1852) Criminal Law 499 et
604 1860) 141. (7th ed., Procedure Archbold, Criminal seq.; loca- as to lacking particularity strict Certainly warrants were deemed to be seized or articles to be searched tion Crown, Ibid.; Hawkins, Pleas also 2 see obnoxious. called limits to these narrow attempt An exceed 130,133. in Entick Camden, judgment of Lord enduring forth in favor of 1029, Trials Carrington, 19 Howell’s State appeal And when against police freedom intrusions. safeguards requisite of these the colonial courts behalf Case, Quincy failed, Paxton’s liberty people for resolved issue. (Mass.) 51, higher tribunal in argument John Adams on Otis’ familiar comment of inde- can never stale: “American Paxton’s Case become born; patriots was then and there seeds pendence vigor- sown, to and heroes were then and there defend Every non sine animosus youth, ous Diis infans. go away, to me to appeared man of crowded audience did, against I take of assistance. ready arms writs oppo- Then and was the scene of the first act of there first arbitrary Great Then sition to the claims of Britain. Independence there was In fifteen and the child born. years, namely grew manhood, he and de- up Works, Adams, 247-248; clared himself free.” 10 for a Case, description speech of Otis’ in Paxton’s see id. 523. liberty protection against governmental So basic is the seizure, has every search State the Union3 this as a safeguard. constitutional
This living bleak recital of past experience was They Madison and his collaborators. that experi- wrote Amendment, ence into the Fourth not merely its words. Mention has been made the doubt the minds of English and Colonial libertarians whether searches safeguard This historic unreasonable search and seizure given formal constitutional sanction New York in N. Y. 1938. Const, Art. 12. § *20 warrants. It by seizures could be sanctioned even search necessary put significant that Madison deemed a qualifying permission into the Fourth Amendment by judicial process search and seizure of the search exacting in and warrant —a search warrant its foundation limited in what scope. qualification gives key This the framers had in mind “unreasonable” by prohibiting searches and The was that all seizures principle seizures. judicial without deemed “unreasonable.” authority were If mean- purpose respected, of its framers is to be ing of the Fourth Amendment must be distilled from Amend- contemporaneous history. The intention of the ment in Massachusetts accurately early was elucidated an Mas- case. The court there had before it the terms of the which, provisions sachusetts with like Constitution, on in Constitutions, the Fourth Amendment was other State based: discus- stirring
“With fresh recollection of those [respecting assistance], sions writs of and of the revo- Bill them, lution which followed the article Rights, respecting seizures, searches and adopted. framed and article prohibit This does not all person, papers, searches seizures of a man’s his possessions; only ‘unreasonable,’ but such as are and the foundation previously sup- of which is ‘not ported by legislature oath or affirmation.’ The were deprived power to authorize search war- for probable rants causes, supported by oath or affir- mation, and for punishment or-suppression any violation of law. law, authorizing therefore, search warrants certain is in cases, respect no incon- Common- sistent with the rights.” declaration of Dana, wealth (Mass.) Met. 336.
Such was the contemporaneous construction of the Fourth by Amendment the Congress. gave It specific whenever it wished to searches and permit
authorization Beginning Congress with the first down to seizures. generally authorized search warrant not as Congress but prosecution available resource aid of criminal observing jealous eye with a the most restricted way, early recurrence of evils with which our statesmen were Congress intimately familiar. For each concrete situation An necessary pass separate incomplete deemed it act. hoc examination finds scores of such ad enactments scat- *21 through Large. 1917, tered the at Not until Statutes only then after repeated by Attorney demands the Gen- eral, Congress pass authorizing did the statute present the generalized issue of search warrants for situations. 217, 228, seq. 40 Stat. 18 U. et Even then §§611 S. C. the situations were restricted and the the scope of author- ity In strictly was defined. the case before us no attempt get was made to warrant search because none could got. have been Congress did not one either authorize charges on the on which was originally Davis arrested or on which ultimately he was tried. And even since the 1917 Act Congress emphasized importance has the basing compulsory the demand judicial for evidence upon process arresting rather than the zeal of officers. The habit of continual against dangers watchfulness police abuses has been reflected in Congress has con- tinued to authorize search warrants for particular situa- by legislation tions specific by reference to the 1917 Act. These revealing in enactments are summarized an Appendix.
In the course decisions, of its with a promptly deviation retraced, this Court pur- has likewise reflected broad pose of the Fourth Amendment. The historic reach of the Amendment and duty to observe it expounded was by the Court Mr. Justice in Bradley Boyd United States, 116 U. S. “a case that will be remembered long as civil liberty lives in the United States.” Olmstead v. in Brandéis, J., U. S. in at 474. Amendment has not been read niggardly with spirit or of a outlook narrow-minded lawyer. the opinion
Since in this me line case seems to out of prior with our decisions, important becomes to recall how this Court has heretofore viewed the Fourth Amend- ment and what has I actually been decided. shall draw on a summary of Court’s decisions Mr. Justice Brandéis:
“Time and
again,
giving
this Court
effect
principle underlying the
has
Amendment,
Fourth
refused to
an
place
unduly literal construction upon
Boyd
it. This
notably illustrated
case
Taking
itself.
language
ordinary meaning,
its
there is no ‘search’ or ‘seizure’ when
a defendant
required to
produce a document
the orderly process
procedure.
of a
right
court’s
‘The
people
be
in their persons, houses,
secure
papers,
effects,
seizures,’
unreasonable searches and
would not
violated,
under any
lan-
ordinary construction of
*22
guage, by compelling
to a subpoena.
obedience
But
Court
this
holds the evidence inadmissible
simply
leading
because the information
to the issue
the
secured. Silverthorne
subpoena
been unlawfully
has
States,
Lumber
v. Co. United
Yet we have grand a to witness before the Amendment extends charged crime, with although not he has been jury, Hitchcock, 547, 562, 586, U. S. Counselman pro- civil and criminal ‘It alike to applies but that: subject might the answer tend ceedings, wherever gives it. The him who responsibility to criminal as as it does fully mere witness privilege protects a McCarthy v. party one who is also a defendant.’ language Arndstein, The narrow S. 40. U. construed consistently has been of the Amendment should object, person of its ‘to insure that light in any a witness acting when as compelled, testimony might which tend investigation, give he himself had a crime. The to show that committed is but it privilege matters, limited criminal guard.’ it seeks to broad as mischief Hitchcock, 562. supra, p. Counselman v. applying principle
“Decisions of this Court things. Unjustified Boyd case these have settled Amendment, Fourth search and seizure violates the paper; whatever the character of the whether paper by when taken the federal officers was home, elsewhere; taking an office or whether by orderly proc- was effected in the force, by fraud, or decisions, ess court’s procedure. of a From these follows the Amendment is violated necessarily reading physical the officer’s the paper without a seizure, touching without even it; use, his and that in any criminal proceeding, the contents of papers so examined —as they where are testified to *23 by a federal who officer thus saw the or document through where, knowledge obtained, copy so a has been procured any such use constitutes elsewhere — Olmstead v. Amendment.” the Fifth a violation of States, 438, 471, at 476-478. 277 U. S. United whether question to the finally brought And so we are have possibly could not which the seizure of documents warrant, search under justified the result of a been as law, by could been authorized no such warrant have since a warrant. without justified a search and seizure can foundation, justification must have historic Such some the Fourth bounds of clearly otherwise it is out of the struggled evidently Amendment. The court below some here reaching its conclusion because of decisions Its entirely found harmonious.” naturally “not States, language chief reliance in Marron v. U. S. 192. A sting short would be that answer of the Marrón case was taken two later cases. Go-Bart v.Co. United 344, 358, 282 U. States S. and United Lefkowitz, v. U. 452, analysis S. 465. But a closer called for.
One would expect a
like the com
system
hard-headed
mon law to recognize exceptions even
most com
to the
prehensive principle
safeguarding
This
liberty.
is true
prohibition
of all searches and
unreason
seizures as
able unless
by judicial
authorized
appropriately
warrant
supported.
Such is the exception,
well
historically
recog
nized, of the right
goods
seize without warrant
on
papers
ships or other moving vehicles. Another ex
ception is
right
of searching
person upon
arrest.
Whether
right
is a surviving incident of the historic
role of the
and cry”
“hue
in early Anglo-Saxon law, see
People
Chiagles,
v.
237 N.
193,
Y.
N.
E.
or
is based on the necessity of depriving
prisoner
po
tential means of escape,
Morrison,
Closson v.
47 N.
H.
preventing
prisoner
from destroying evidence
otherwise properly subject
to seizure,
Reifsnyder
see
Lee, 44
101, 103;
Iowa
Holker v. Hennessey,
610
1
New Crim-
Bishop,
settled
our law.4
early
arrest
seg.
1895)
210 et
(4th ed.,
§§
inal Procedure
right to search
of this
application
A
uncritical
casual and
in the
some decisions
has led
prisoner
of the
person
the
this
of
expansion
to an unwarranted
lower federal courts
the over-
resulting
upon
with
inroads
exception,
narrow
Amend-
of the Fourth
riding
prohibition
of the
principle
gradually
to case
from case
Slight
ment.
extensions
“judicial
from
sanction
momentum
attain
considerable
a
may
regarded superficially,
methods, which,
equivocal
of
which,
challenge
illegality
of
but
escape
the
seem
right.”
of the constitutional
reality, strike at the substance
4
validity
the arrest has
discussion, the
purposes
present
For
First,
questions.
legality
But its
raises several serious
been assumed.
City
investigators
York
or the New
it is not clear whether the O. P. A.
course,
investigators,
made the
P. A.
detectives
arrest.
O.
York
have no authorization
make
arrest. Whether the New
an
a
are
make
for federal offenses is
detectives
authorized to
arrests
States,
310; Marsh
debatable
See Gambino v. United
275 U. S.
issue.
States,
172;
(a)
Emergency
United
29 F. 2d
20
of the
Price Con
§
Act,
23, 29,
Though
App.
trol
921.
local law
Stat.
U. S. C.
§
provision
punishment
makes
for
of the same acts that are federal
Laws,
regard,
1942, 544,
offenses in this
N.
c.
arrest was made
Y.
the
for a federal and not
If
a state or local offense.
the New York law is
controlling
validity
arrest, however,
toas
the
of the
it is within the
any
power
person
crime, including
to make an arrest for a
mis
demeanor,
presence.
in his
The common law
restricted arrest
rule
without warrant for a misdemeanor to those acts which
breaches
were
peace.
again,
the
petitioner
Here
is
issue
there
of whether the
any
presence
making
committed
misdemeanor in the
of those
the arrest
English
at the time the arrest was made. A recent decision
Appeal
question.
Court of
focuses attention on this last
In Leachin
sky
v. Christie
(1945),
[1946]
K. B.
at
Lord Justice Scott
why
legality
justification
clear
makes
of arrest turns
arresting
gives
officer
at the time of the arrest: “The law does
vacuo,
not allow an arrest in
assigned,
or without reason
and the
assigned
reason
must
purpose
be that the
is for
prose
arrest
of a
cution on the
charge,
justification
self-same
as is the
arrest.
follows,
It
principle lying
and it is
very
English
at the
roots of
free-
In
cases
Byars v. S.
33-34.
273 U.
i
natural
person,5 t
dealing with the search of the
pos
“in his
things
to search
seize
speak
right
scope
regard
ambiguous
strict
session” without
*25
readily
that, opinions slide
“possession.”
a man’s
From
“within
right
things
to
seize
including
to
search
language
arrested person,
the immediate control” of the
enough
goods
to
appropriate
applied
when
at the time.6 Taken
person
transporting
arrested
original
phrases are used until
context,
out of their
these
in which
premises7
to
entire
they are made
include the
charge
dom,
is
is
to his release
if man
arrested on one
he
entitled
that
charge
prose-
prosecution
the moment
is abandoned.
that
proceed
charge,
cution
on one
their intention to
cannot arrest
abandon
nominally
charge
keep
storage,
cold
still
on that
and then
him in
charge,
they inquire
possibility
putting forward
that
into the
while
charge.
then,
they
a different
To do that
must first release him:
they
put
they
propose
charge,
when
to
other
can make
forward some
charge
See also Dumbell v.
that
the occasion
arrest.”
new
of a new
(K. B.) 185; People Marendi,
Roberts
(1944),
113 L. J.
v.
213 N. Y.
seq.,
Quarterly Review,
609 et
Law
N.
107
E. 1058. The
com-
Leachinsky
menting
case, pointed
person
on the
out: “An accused
right
charge
that,
has a
what
to know
him
if he elects
so
speak,
may
clearing
open
he
have a fair and
chance of
himself at
Q.
earliest
62 L.
moment.”
at 4.
It is
Rev.
noted that
States,
Carroll
v. United
132, 157,
267 U. S.
assumes the federal law
English.
of arrest to be the same as that of the
5
g.,
Wilson,
E.
United States v.
United States v.
338, 340;
F.
163
Murphy,
842, 844;
Snyder,
United
264
States
F.
v.
650, 658;
F.
278
Maynard
States,
United
23 F. 2d
v.
141, 144;
United States v.
cf.
Welsh,
239; Laughter
States,
247
Donegan
v. United
94;
F.
259 F.
States,
United
v.
States,
v. United
641;
287 F.
Winkler
8 E. United States 531, 533; 297 F. 364; United States v. On, 5 F. 2d Seltzer, Chin 503; Cheng States, Mattus v. United F. 2d Wai v. United States, 915; 408; 125 F. 2d v. 268 F. Borkowski, United States In re cf. 949; 396; 278 F. O’Connor v. United Mobile, 281 F. States, Vachina 35; Furlong v. United 283 F. States, 492; v. United 10 F. 2d States, United States v. 2dF. Fischer, 830. Thus, Appeals Court of for
lower courts. Circuit Marrón it required the Second Circuit felt that case give of the prohibitions a more restricted view to expounded Fourth Amendment than that court had Kirschenblatt, States v. 16 F. United 2d see Go-Bart States, nom., Gowen, v. United sub United States v. Co. F. only here, 2d to find itself reversed Go-Bart Co. States, supra, authority v. United on the of the partly Kirschenblatt Marrón which, case, decision after the thought application it must disown. The uncritical right surely of search on arrest the Marrón case has States, displaced by supra, been Go-Bart Co. v. United drastically by Lefkowitz, and even more United States v. supra, qualifies unless one is to infer that an earlier case although later decisions these explic- later decisions have itly confined the earlier case.
In jealousy view of the with which this Court has applied the protection of the Fourth Amendment even where the search purported place proper take under a safeguard judicial warrant and there was the process judgment addition to the expressed of the enforcement officials, g., States, 124; see e. Grau v. United 287 U. S. Sgro 287 U. S. it was to be expected that this sanction arrest Court should searches on justified only that can be if securing reasonable evidence purposes trial is the test of reasonableness for *27 purposes of the Fourth Amendment. pre- Such a view supposes that the Fourth Amendment is obsolete and makes of the particularity requirement for search war- mocking rants a redundancy.
A In point. final this case the arrest was based on misdemeanors, gasoline two the sale requi- without the coupons gasoline site and the sale of price at a over the ceilings. O. P. A. For neither of these offenses were coupons “instruments in in crime” sense which any right to exceptional The properly used. term to a search in event extend any does not on arrest
search of a crime other the commission necessary articles for The officers was made. which the arrest than that for illegal pos- for of Davis have made an arrest could not mere tried, on which he was later for coupons, session of only a mis- others, like the was crime, That suspicion. for a misdemeanor no arrest can be made demeanor, and in presence it be committed a warrant unless without had no basis search, to the the officers of officers. Prior illegal the crime committing stating that he was coupons presence. of the their possession though always avowed, that felt, It is too often safe- these constitutional what is called nice observance of of violators guards apprehension and conviction makes enterprise on the difficult. Want of alertness and too enforcers too often is the real obstruction part of law good present law enforcement. The case affords The close resemblance to what instance.9 situation bears petitioner’s gas suspicion weeks; The was under for some station yet opinion. finally Petitioner action was taken as described this gas ceiling was arrested when he arrived at the station for sales above prices coupons. arraignment and sales without No was made for engaged prem these offenses—instead the officers a search ises, essentially entry petitioner’s which included the forced into headquarters. office. He was then taken the local O. P. A. After questioning headquarters, several hours of at O. P. A. Davis was petitioner released. Not until one month later re-arrested arraigned, charge entirely and and then on a those different from original Emergency on which the arrest was made. Price Control seq., et Act, App. adequate 56 Stat. 50 U. S. C. made §§901 provision securing for effective enforcement of the statute. far So papers concerned, equipped documents are the Administrator is subpoena power, (c), (d), (e); with the addition, the Admin § injunction power istrator has the to seek the acts which the petitioner committing, (a); by appropriate was accused of § may proceedings the Administrator seek the withdrawal of the license petitioner required business, (f); operate which the his 205§ *28 Judge Learned Hand said on another occasion. “We are impos will it will be serve, told that unless such evidence large an resi suppress proportion sible evil of Brooklyn. any dential part Perhaps so; community must between the of its impairment power pun choose ish crime and such arise from its evils as uncontrolled prosecution. danger certain, But the is not for the officers least applied could have for warrant which —as was at might intimated then have Taylor v. United States — been valid. It takes time to a still and take up break if dis parts away; attempt made, were it would immediately. cover itself One or more officers could have judge while the others watched, commissioner, went to a put upon whose action would at least have a different face Kaplan, United States subsequent their proceedings.” 869, 871. 2dF. Court this old gives prac- case a new label to an tice and an old by police claim it happens officials. But practice the old the old claim now refurbished in a new very verbal dress were the practice claim which infringed liberty as conceived by those who framed Constitution and they which erected the bar- riers the Fourth I Amendment. am constrained to today’s believe that decision flows from a view of the Fourth Amendment that is unmindful of the history that begot it and of the purpose for which it was included the Bill Rights. And the view of the Amendment rejects the Court is impressive confirmed an body of Congress laws and of the decisions of this Court. Stern enforcement of the criminal law the hallmark of a healthy and self-confident society. inBut our democ- such racy presupposes enforcement a moral atmosphere and a upon reliance intelligence whereby the effective justice administration of can be with regard achieved due for those civilized standards in the use of the criminal law which are formulated in our Bill Rights. prin- If great *29 bring- finicky obstructions appear sometimes
ciples judge gives a of wise this heel, admonition criminal ing a arise limitations constitutional final answer: “Such the have their makers fancied, which real or grievances, from evil. supposed with the go pari passu suffered, and should tough- depth the logic by winds of They withstand forget that should we past. in the Nor of their roots ness of bad enough against squalid huckster fair what seems if face, by gov- very take used liquor may on a different political opposition under suppress determined ernment J., in United States guise Hand, of sedition.” Learned Kirschenblatt, 202, 16 F. 2d 203. APPENDIX. UNDER WARRANT.*
SEARCH AND SEIZURE A. to be Place searched. store, (dwelling house, July 31,1789,1 29,43
Act of Stat. 4, 1790, of building, place, by day); August or other Act 1 or 145, (dwelling house, store, building, Stat. 170 other (any 207 place, day); 3,1791,1 199, Act of March Stat. 2, 1 place, by day); 1799, 627, Act of March Stat. 677-78 *Congress passed inspection authorizing has numerous statutes premises very are defined and seizures without warrants. These all acts, particularized relating mostly inspection to the of vessels and types goods. vehicles and the Most seizure of various of contraband legislation exceptions historically recognized of this within comes adoption recapture Fourth at time of of the Amendment as to goods of stolen and search vehicles and vessels because their fugitive legislation, In nature. such a mass of would not sur- prising specific if acts fell afoul of the some considerations legislation Boyd invalidated the case. 116 S. 616. U. What legislation significant recognition by Congress about this is necessity specific Congressional authorization even for the moving goods search vessels other vehicles and the seizures of technically contraband.
617 (dwelling house, building, ; other store, place, by day) or 2 April 18, 379, Act 1806, (dwelling house, Stat. building, store, place, by day); or other Act of March (dwelling house, Stat. or store, building, (dwell- Act place); 3,1815,3 231,232 other of March Stat. ing house, store, building, by day) (no or other warrant necessary vehicle); to search a 3, 1863, Act of March 737, 740 (any place Stat. premises); February Act of 28,1865,13 441,442 Stat. (buildings boundary lines); near *30 July 13, Act of 1866,14 98,152 (any premises); Stat. Act 2, of March 14 1867, 546, (any Stat. 547 premises); Act 3, 1873, (no of March 17 598, Stat. 599 limitation on scope); April Act 22 25, of 49 1882, (dwelling house, Stat. store-building, place, or other by day); February Act of 10,1891,26 742,743 (any house, Stat. store, building, boat, or place, other by day); August 27, Act of 28 1894, Stat. 509, (no 549-50 limitation on scope); July 24,1897, Act of 151, (no 30 Stat. 209 limitation on Act scope); of March 3, 30 1899, 1253, Stat. 1326 (any place Act Alaska); of 3, 1901, March 1189, 31 1337 (no Stat. limitation on scope); August Act 5, 1909, of 11, (no 36 Stat. 86 limita- tion on scope); Act of February 14, 1917, 903, 39 Stat. (room, 906-907 house, building, place Alaska); or other Act 15, 1917, 217, of June 40 Stat. 228 (by day or, on conditions, certain night); 3, Act of July 1918, 40 Stat. 755, 756 (any place); 28, Act 1919, of October 41 Stat. 305, (see 15, 1917, 308 Act of June supra); Act of Sep- 21, 1922, tember 42 858, 937, Stat. 983 (dwelling house day, and or any by night store other place or day); Act 7,1924,43 of 650, (no June Stat. 651 scope); limitation on April 23, Act of 1928, (no 45 448, Stat. 449 limitation on scope); Act of February 18, 1929, 45 1222, (see Stat. 1225 July 3, 1918, Act of supra); Act of June 17,1930,46 Stat. 590, (dwelling 752 house, by day, or store, building other place); or Act 2, 1930, of 46 July (no Stat. 846 limi- 845,
618 381 378, 49 1935, Stat. 15, of June Act scope); on
tation 49 Stat. August 27,1935, Act of scope); on limitation (no Act of supra); 15, 1917, Act June (see of 872, 874-875 in District (any 198, place 199 1938, Stat. 52 5, April (no 1, 436 1939, 10, 53 Stat. February Columbia); Act 670, 1940, 54 Stat. 28, of June Act scope); limitation July conditions, night); Act certain day or, on (by 671 Act of scope); limitation on (no 301, 304 1943, 57 Stat. 1, vessel, (any person, 100, 102 1944, 58 Stat. February 26, place). and Seizure. Objects Search B. subject (goods 29, 1789, 1 Stat. 43 July 31,
Act of (goods sub- 145,170 4, Stat. August 1790, Act of duty); (liq- 1791,1 Stat. Act March ject duty); concealed); Act hid, or fraudulently deposited, uors duty) ; subject to (goods 627,677-78 2,1799,1 March Stat. (articles imported April 18, 1806, Stat. Act of 1,1809,2 528,530 Stat. March Britain); Act of from Great Act of France); Britain or imported from Great (articles ; (articles subject duty) *31 232 3, 1815, 231, 3 Stat. March (invoices, papers, 740 737, 12 3, 1863, March Stat. Act of February relating frauds); Act to customs and books (dutiable July Act of goods); 442 28, 1865, 441, 13 Stat. Act of (fraud revenue); on the 1866, 98, 14 Stat. 152 13, (fraud revenue); on the 1866, 178, 14 187 July 18, Stat. books, 546, (invoices, 14 547 2, 1867, Act Stat. of March frauds); 3, Act of March to customs papers relating and (obscene 598, literature, literature about 1873,17 Stat. 599 materials); April 25, Act of contraceptives, contraceptive unpaid); (merchandise 22 1882, duty Stat. 49 (counterfeit 742, February 10, 1891, Act of 26 Stat. 743 coins, etc., for money, and materials used their manufac- ture) August (ob- ; 27, 1894, 509, Act of 28 Stat. 549-50 articles, tickets); and scene immoral literature and lottery
619 im- 151, (obscene 209 24, 30 Stat. July 1897, Act of contraceptive and abortive literature, moral articles and 3, 1899, of March 30 Stat. materials, lottery tickets); Act articles used to (embezzled property; 1327 or 1253, stolen crime); a felony; property commit a to be used to commit or em- 3, 1901, 1189, (stolen March 31 1337 Act of Stat. goods, coins, etc., bezzled counterfeit and materials used immoral arti- them, nature, to make literature of obscene cles, gambling equipment, lottery tickets); August Act of 36 5, 1909, 11, (obscene literature, Stat. 86 or immoral or articles, drugs, objects abortion, tickets); Act lottery February 14, 1917, 903, (illegally 39 Stat. 906-907 held liquor); 15, 1917, (stolen Act of June 40 217, Stat. 228 embezzled property; property used in commission of felony; property unlawfully used to aid foreign govern- ; ment) July Act of 40 3, 1918, Stat. 756 755, (illegally migratory secured birds or bird Act products); of October 28, 41 1919, 305, (alcoholic Stat. 308 Act beverages); September 21,1922, 42 858, (obscene Stat. 937, 983 litera- ture, drugs for abortion, contraceptive items, lottery tick- ets; illegal imports); Act of June 7,1924, 43 650, Stat. 651 (wild life and fish improperly taken from refuge); Act of April 23, 1928, 45 448, Stat. 449 (migratory improp- birds erly taken from bird refuge); Act of February 18, 1929, 45 1222, (see Stat. Act of July 3, 1918, supra); Act 17, June 1930, 46 (merchandise Stat. 590, 752 on which duties unpaid); Act of July 2,1930,46 Stat. (ille- 845, gally caught black bass); Act of June 15, 1935, Stat. 378, 381 (illegally captured game and wild life prod- ucts thereof shipped in interstate commerce); Act of August 27, 1935, 49 Stat. 874-75 (illegally possessed liquor); Act April Stat. 198, 199 (lottery *32 tickets, gaming devices, books for recording gambling transactions, stolen and embezzled property, forged and counterfeit materials, equipment used for counterfeiting,
620 Act of materials); and literature immoral and obscene revenue); (frauds on 1,436 Stat. 10,1939,53 February mate- (subversive 670, 671 1940, 54 Stat. 28, June Act of game (Alaskan 301,304 57 Stat. ; July 1,1943, Act of rials) captures); make used to equipment taken illegally taken (illegally 100,102 58 February 26,1944, Stat. Act of takings). in the to aid used equipment products seal warrant. issuance Requirements C. of for of conceal- 29, (suspicion 43 Stat. July of 31,1789,1 Act before affirmation on oath or goods, application ment of 1 145, August 4, 1790, Stat. Act of justice peace); of the or on oath concealment, application (suspicion 170 of 3, March Act of justice peace); of the before affirmation establishing (oath affirmation, 207 199, 1 Stat. or 1791, U. before S. suspicion, reasonable cause grounds for 2,1799,1 Act of March Stat. justice peace); judge or of on concealment, application, of 627, (suspicion 677-78 2 Act of Stat. justice peace); April 18,1806, oath, 528, 1, 1809, Act March 2 Stat. 530 379, (same); 380 of (suspicion 232 (same); 3, 1815, 231, of March 3 Stat. Act judge concealment, oath, any proper application, of on 737, justice 3,1863,12 Act of March peace); of Stat. (affidavit establishing attempted 740 fraud or fraud to February 28, Act judge); satisfaction U. S. district 1865, (oath showing 13 442 441, Stat. belief or reason smuggled goods premises); on kept to believe that are (oath 14 July 13, 1866, 98, writing Act of Stat. 152 be- judge setting fore U. S. circuit or district or commissioner, forth belief or reason to believe fraud revenue com- premises); mitted on Act of 14 July 18, 1866, 178, Stat. (may by any be issued district Act judge); March 2, (complaint Stat. and affidavit, to sat- isfaction U. judge, S. district fraud); customs Act of 3, 1873, (written March 17 Stat. complaint of violation statute, before U. S. district or circuit judge,
621 of belief, to satisfaction belief or basis for setting forth 25, affirmation); April Act of or by oath judge, supported oath, justice application, 22 49 1882, (proper Stat. or U. S. police justice, judge cities, district peace, 26 10, 1891, February judge); district or circuit Act showing affirmation, proba- 743 oath or 742, (proper Stat. being violated); Act ble cause for belief that statute is in writ- (complaint August 27, 1894, 509, 28 Stat. 549-50 setting grounds forth ing, knowledge belief, founded on or belief, affirmation, for to the satis- supported oath or July 24, faction of U. district Act of judge); S. or circuit 1897, writing 30 151, (complaint Stat. 209 of violation of act, judge, to satisfaction of U. district or circuit S. founded on knowledge setting for belief, or forth basis belief, and supported by or Act of affirmation); oath 3, March 1899, 30 1253, (probable cause, Stat. 1327 shown by affidavit, naming describing or person, describing the property and place be searched, to the satisfaction of an examining magistrate); Act of 3, March 1901, 1189, Stat. 1337 (complaint, oath, under before police justice court or of the peace, setting forth belief and cause belief of concealment in any place specified articles, describing place to be searched and the property to be seized); Act of August 5, 1909, 11, 36 Stat. (complaint in writing before U. S. circuit or district judge of violation act, to the satisfaction the judge, setting grounds forth for belief and supported by oath or affirmation, a warrant may issue “conformably to the Constitution”); Act of February 14, 1917, 39 Stat. 906-907 (charge, on oath or affirmation, before Alaskan district attorney, of viola- tion of prohibition laws; place where violation occurred to be specifically described); Act of June 15,1917,40 Stat. (affidavits 228-29 or depositions, setting forth facts establishing grounds probable cause for belief that grounds exist, before U. orS. State judge, or U. S. commis- oath (proper Stat. 3,1918,40 July ofAct
sioner); *34 showing commissioner, judge or U. S. before affirmation or of October statute); Act of the cause of violation probable 1917, 15, June (see Act of 308 305, 41 1919, Stat. 28, 937, 858, 983 42 21, 1922, Stat. September Act of supra); alleging judge, district U. S. writing before (complaint sup- cause probable founded on statute, of violation re- conformable or affirmation ported by oath suspect presence Constitution; cause to quirements of justice oath before under goods, application of dutiable U. com- judges, or S. or federal local, State, of the peace, 651 650, (proper 1924, 43 Stat. ; 7, of missioner) Act June or commissioner judge before U. S. or affirmation oath 23, April Act of violation); of cause showing probable before affirmation, or 448, 449 oath 1928, (proper 45 Stat. of cause commissioner, showing probable judge S. or U. 18, 1929, 45 Stat. statute); February of Act of violation 17, of (see supra); of Act June 1222,1225 July 3,1918, Act (suspicion concealment of dutia- 1930, 590, 46 Stat. 752 of any justice goods, application ble under oath peace, local, State, judge, or or U. S. commis- federal sioner) ; 2,1930,46 845, (proper Act of Stat. 846 oath July or judge affirmation before S. or commissioner estab- U. lishing probable Act of violated); cause statute was 15, 1935, (proper June 49 Stat. 378, 381 oath or affirma- judge prob- tion before U. S. establishing or commissioner able cause that violated); 27, statute Act August 1935, (see 872, 1917, 49 Stat. Act 15, 874-75 of June supra); Act April 5, 198, (complaint 52 1938, Stat. 199 oath, police under before the court for the District Columbia, or U. setting belief commissioner, S. forth or belief, cause for particularly describing place to be searched, the articles to be seized); February Act of 10, 1939, (oath 53 Stat. 436 in writing before U. S. district judge or commissioner, setting forth reason to believe that
623 committed); Act of being fraud revenue committed or 15,1917, 28, 1940, (see Act of June June Stat. supra); July 1,1943, (proper Act 57 Stat. bath affirmation, or showing probable cause of violation Alas- game laws, judge commissioner); kan before U. Act S. February 26,1944, (oath Stat. or affirmation 100,102 judge before U. S. showing probable or commissioner, statute). cause of violation of Justice Rutledge,
Mr. dissenting. I am substantially in expressed accord with the views Mr. Justice Frankfurter his opinion exhaustive to the controlling principles govern which should *35 disposition of this case. it should be Perhaps added clearly evidence does show that the officer who light flashed the into the attempting window was in fact open by force do more than observe the interior. But the situation was such that his action clearly created in Davis’ mind the impression entering that he either was by force or intended taken, to do so. It must therefore think, I that Davis’ so-called consent was this by induced apparent compulsion, very thing kind of the Fourth Amendment designed prevent. was There was no such legalize consent as would entry and search.
Moreover, may whatever scope be the of search incident to lawful arrest misdemeanor, for a I know of no decision goes so far as to rule that right this of search extends breaking entering locked premises by force. That was not done here. But the search followed on consent given the reasonable belief that it was necessary to breaking entry. avoid the I think it was therefore in no better legally case if in than fact the breaking and entry forceable had occurred. The search justified by neither consent nor the doctrine of reasonable search as incident to a lawful arrest.