*1 IRVINE CALIFORNIA. February 8, 1954. 30, 1953. Decided Argued November
No. 12. *2 for brief and filed a the cause argued Morris Lavine petitioner. of Cali- General Miller, Deputy Attorney
Elizabeth General, Attorney Linn, A. Assistant fornia, and Clarence the brief them on respondent. With argued the cause and Brown, General, William Attorney Edmund G. were O’Connor, Attorney General. Deputy Chief V. judgment the announced Jackson Justice
Mr. Justice, Mr. opinion in which The Chief Court and an join. Minton Reed and Mr. Justice Justice grow- questions involves constitutional This case on petitioner to convict employed out of methods ing related offenses1 bookmaking and horse-race charges of Petitioner California.2 laws of antigambling the against and procedures relief under state all avenues to exhausted issues. raised federal duly review here of sought then tendered petition on a granted certiorari3 We now has However, petitioner’s counsel four questions. concerning one questions, two additional presented and statute California immunity of an application jury given to attacking certain instructions another mentioned of these was trial court. Neither by the smuggling practice disapprove the petition. We grant we certiorari. into a case after questions additional limit unless we petition are fixed The issues here settled, frivolous we do to avoid grant, frequently paraphernalia purpose of record Keeping premises with for the money racing, receiving and the ing registering horse and bets on wagered on horse equivalent or was to be thereof which had been registering horse races. races, recording bets on and (4). (1), (2), (3), Code, 1949, Deering’s Penal 337a Cal. §§ 3 345 S. 903. up questions not take doWe questions. law or state are they brief because petitioner’s 6 of 3 and' numbered presented. improperly a federal person on his had arrest, petitioner his
Upon address and home bearing name, his stamp tax wagering it and objection, Against 5, 1951. date, November office of the United from the evidence documentary other show received to Internal Revenue States Collector stamp and wagering tax for the application petitioner’s These the federal law. under the Collector his return to im Act to the Federal pursuant made were documents V) (Supp. 529, 26 U. S. C. taxes, 65 Stat. posing wagering in United by this Court seq., held constitutional 3285 et § is made Kahriger, 345 22. The claim U. S. admit this evi of federal law to it was as matter error *3 the federal tax resulted payment also that of dence and business. wagering the in a federal license conduct stamps or con does not make such records This statute re expressly privileged but, contrary, fidential or on the tax business of each such place the name and of quires 3275. 26 S. C. public. 395, § be made 53 Stat. U. payer to substance or merit contentions are without Petitioner’s that pay of the statute express provision view of the penalty exempt any person ment of the tax does not from com punishment by or state law and does not authorize 53 Stat. mencement or continuance of such business. 395, (Supp. S. C. 65 26 S. C. 3276; 531, § Stat. U. V) 3292.4 §
But the while questions raised the officers’ conduct investigating police strongly serious. case are suspected petitioner illegal but were with- bookmaking proof 1, 1951, out of it. On December while Irvine ar- home, his wife were absent from their an officer question challenges the use Petitioner’s number State’s “compelled wagering statute, the federal evidence” obtained under Kahriger, supra, United States is answered in at 32. make a door there and go a locksmith ranged to have occupants, in the absence later, again key. days Two home the into the entry and a made officers technician microphone and installed concealed key use of this house and A in the roof of the hall. hole was bored the neighboring garage to a strung to transmit wires were might pick up. Officers microphone whatever sounds On December garage in the to listen. posted were mi- entry and moved surreptitious made police again Twenty bedroom. hiding this time crophone, microphone placed again entered days later, they purpose until remained its closet, in a where the device incriminating statements to overhear enabling the officers accomplished. not a conventional instance should note that this is We of the officers was apparatus Here the tapping.” of “wire facilities, telephone with the way connected any not in sys- with the communications no interference there was All that message. interception tem, there was no an eaves- was what through microphone was heard closet, or the hall, bedroom, hidden dropper, illegal it is suppose do not heard. We might have merely be- say heard to person another testify to what sustain telephone. We cannot it into saying he is cause evi- reception the conduct the contention Act. Communications the Federal violated dence v. Cf. Nardone C. *4 § 47 S. Stat. U. States, S. v. 316 U. Goldman 338; U. S. Texas, S. Schwartz U. 129; testify to conversa- allowed were trial, At the officers The installations. listening through their heard tions thought prosecution the of conversation snatches lingo were in the They in evidence. were received useful the recited, but be need not and the race track incriminating. them regarded have might well jury objection, properly under was received testimony constitutionally inadmis- that it question the raising the Four- which violate by methods since obtained sible teenth Amendment. home with- petitioner’s entries of repeated of these
Each and trespass, was a process or warrant other out a search should person unofficial burglary, for which probably Science be, severely punished. probably would be, and to become recording devices amplifying and perfected has invasion of and of surveillance instruments frightening or blackmailer, the policeman, by the privacy, whether break and of the law would That officers busybody. bedroom, in a device, even such a home, enter a secrete occupants for over the conversation and listen to if were not admitted. it be almost incredible month would that more to our measures have come attention police Few violated the fun- persistently and deliberately, flagrantly, Fourth Amendment by the principle declared damental that “The Government on the Federal aas restriction houses, persons, in their to be people right secure effects, against unreasonable searches papers, and issue, no shall violated, and Warrants seizures, not shall or affirma- by Oath cause, supported upon probable but searched, place to be describing tion, particularly decision be seized.” The things persons and the estab- Colorado, 27, for the first time Wolf privacy against of one’s security lished that “[t]he in the con- is embodied police” arbitrary intrusion Amendment. found the Fourteenth cept process of due to make therein, declined Wolf, But for reasons set forth devel- evidentiary doctrines subsidiary procedural and the states. On limitations on federal courts oped by the in a hold, therefore, contrary, declared, “We Four- for a State crime the in a court prosecution State forbid the of evi- does admission not teenth Amendment search and seizure.” an unreasonable obtained dence
133 Minard, 117, U. S. 33. See S.U. Stefanelli here. control seem to holding 122. That would this case under bring to however, An made, effort is That California, sway of Rochin illegal an search things, other involved, among case element an presented But it also person. defendant’s noted, p. (as the Court totally lacking here —coercion to upon person his assault physical 173), applied This pump. use of a stomach to the compel submission contrary a result Rochin feature which led to was the the search-and- Rochin raised Although that in to Wolf. it and studiously avoided this Court question, seizure it Obviously, case. mentioned the never once Wolf did not and seizure alone call thought illegal search in the case obnoxious are facts for reversal. However violence coercion, not involve us, they before do trespass property, person, to the but rather a brutality plus eavesdropping. we affirmed the however, although
It is suggested, here because Wolf, conviction we should reverse than offensive, more privacy shocking, invasion of is more were writ- opinions the one there. The involved Wolf the details did not disclose entirely ten the abstract and Actually, search of the constitutional violation. if not the same respect, offensive to the law in the same went to others deputy here. A sheriff and degree, as appoint- his a warrant and seized doctor’s office without all names of learn the through it to book, ment searched them, interrogated certain up his looked patients, in- on the doctor against information and filed an from had obtained Attorney formation that the District in evidence also were introduced the books. books at his trial. against the doctor holding upon make inroads urged are We Wolf pro- and seizures to searches applies only *6 if is more shock, duce on our minds a mild while the shock or we will serious, the states must exclude the evidence reverse the conviction. We think that the decision Wolf for overruled, persuasively should not be the reasons so that a distinction of the think, too, stated therein. We urged kind would leave the rule so indefinite that no state keep know what it should rule in order to its court could processes ground. on solid constitutional governing as to the substantive rule federal
Even Amendment, of the Fourth both the searches violation considerably. Court and individual Justices have wavered States, 145; Trupiano Harris v. United Compare U. S. States, United v. Rabino States 699; United v. States, witz, Brinegar v. United 338 U. S. 56; 339 U. S. On Lee 160; Goldman United 129; 316 U. S. States, of 1949 747. Never until June United U. S. prohibi hold the basic search-and-seizure did this Court Four under the way applicable to the states tion pointed out, we time, At that as teenth Amendment. ex the federal rule following were not thirty-one states were while sixteen cluding illegally evidence, obtained is known that the doctrine agreement with it. Now Wolf their wish further to reconsider them, may state courts upset But to state convictions even evidentiary rules. adopt opportunity to adequate have had before the states use of federal rule would be an unwarranted reject jus criminal administering The burden of power. chief upon them the impose courts. To upon tice rests state noncompliance with stand reversal for hazard of federal been and its members have to which this Court ards as justified. not be inconsistent would inconstant and so the law of search-and-sei stating adhere to We Wolf subjective vague introduce zure and decline to cases distinctions. in fed- obtained evidence illegally to exclude
Whether admissibility discretion, our largely trials is left eral governed evidence is “by principles of the common law as they may be by interpreted courts of the light of reason and experience.” Fed. Crim. Rules Proc., 26. As we have pointed out, reason led has state courts to differing conclusions, but about two-thirds of them to acceptance of the illegally obtained evidence. experience What actual teaches we really do not know. Our cases evidence the fact that the federal rule of exclusion and our reversal of conviction for its violation are not sanctions put an end to illegal search and seizure federal officers. rule *7 was in 1914 in Weeks v. announced States, United 232 U. S. 383. The extent to which the practice was curtailed, if at all, is doubtful. The lower federal courts, and even have Court,5 been repeatedly to constrained enforce g.,
5 E.
Silverthorne Lumber
v.
States,
United
385;
Co.
251 U. S.
States,
Gouled v.
298;
United
255 U.
Amos v.
States,
S.
United
255
313; Agnello
U. S.
States,
v. United
20; Byars
269 U. S.
v. United
States,
28;
273
S.
States,
U.
Gambino v.
310;
United
275
S.U.
Go-
Importing
Bart
v.
States,
Co. United
344;
282 U. S.
United States v.
Lefkowitz,
Taylor
452;
285 U. S.
States,
v. United
1;
286
S. Grau v.
U.
States,
United
124;
287 U. S.
States,
Nathanson v. United
290 U. S.
41;
Re,
United States v. Di
581;
332
States,
S.
Johnson v.
U.
United
10; Trupiano
333
States,
U. S.
v.
699;
United
334 U. S.
McDonald v.
States,
United
451; Lustig
335
States,
U. S.
v.
74;
United
338 U. S.
Jeffers,
United States v.
342 U.
48.
S.
The Court has also cited the
approval
many
doctrine
g.,
with
related
E.
cases.
Perlman v.
States,
United
7;
McDowell,
247 U. S.
Burdeau v.
465;
U.
256
S.
States,
Carroll v.
132;
United
States,
267 U.S.
McGuire v. United
273
95;
U. S.
v.
States,
192;
Marron United
275 U. S.
Olmstead v. United
States,
438;
277
Connecticut,
S.
v.
319;
U.
Palko
302 U. S.
Goldstein
States,
v. United
114;
316 U.
States,
S.
v.
McNabb United
318 U. S.
332;
v.
States,
487;
Feldman
United
322 U. S.
Davis v. United
States,
582; Zap
States,
S.
v.
624;
United
328 U. S.
Harris v.
States,
United
145;
Co,,
U. S.
United States v. Wallace Tiernan
&
793;
336 U. S.
Rabinowitz,
United States v.
56;
339 U. S.
Lee v.
On
States,
United
Appendix
dissenting
known seizures searches lawless from less suffer the evidence has this Court Even it. admit of states those than federal evidence seized illegally exclude tofit not seen Pri wrong. perpretrated officer federal unless cases not evidence obtain methods use may detectives vate McDowell, 256 v. Burdeau law. to officers open 99; 95, States, 273 U. S. v. United McGuire see 465; S.U. Lustig v. 487; States, 322 U. v. United Feldman cf. courts, federal lower And the 74. States, 338 S.U. United to the right personal Amendment Fourth treating claim objects must he who have held asserting it, one in that interest possessory or proprietary some Me v. Connolly g., E. or seized. searched unlawfully E. 2d v. United 629; Steeber dalie, 2d 58 F. States, 316 S.U. United v. See Goldstein Cf. 30-31. Colorado, at supra, 121; Wolf S. 48. 342 U. Jeffers, invoking not petitioner remembered It must of his punish violation prevent Constitution reparations recover or to right recognized federal Wolf his aside to set only invoking He is violation. for the *8 exclusion rule of That of crime. own conviction more ca- is persons escape guilty in reversal results invasions it deters that than of demonstration pable police as the far made, so is The case police. right by ar- they have announce they when concerned, are nothing does the evidence Rejection man. their rested likely may, official, while wrong-doing punish deprives It defendant. wrong-doing release the will, he because one lawbreaker against remedy of its society against one protects It by another. been pursued has noth- but does discovered, is incriminating evidence whom the victims are who persons innocent protect ing to educa- disciplinary or searches. fruitless illegal but tional effect of the court’s releasing the defendant for police misbehavior is so indirect as to be no more than a mild deterrent at best. Some discretion is still left to the in states criminal cases, they largely respon- are sible, and we think it for them is to determine which rule best serves them.
But admission of the evidence does not exonerate the officers and their if they aides have violated defendant’s rights. constitutional It was pointed out in v. Colo- Wolf rado, supra, that other remedies are available for official lawlessness, although too often those remedies are of no practical avail. The difficulty with them in part due to the failure of parties interested to inform of the offense. No matter what an illegal raid turns up, police are un- likely to inform on themselves or each If other. it turns up nothing incriminating, usually innocent victim does not care to take steps which will air he the fact that has been under suspicion. prospect And the guilty may capitalize on the official in his wrongdoing defense, or to obtain reversal from a higher court, removes any motive he might have to inform.
It appears to the writer, supported which view he is that there if Justice, The Chief remedy is no lack of an unconstitutional wrong has been done this instance without upsetting justifiable conviction of this common gambler. If willfully deprived the officials have a citizen of the United of a right privilege secured to him by the Amendment, Fourteenth being right against secure his home searches, unreasonable Colorado, defined supra, may their conduct Wolf constitute a federal crime under 62 Stat. 18 U. S. C. (Supp. III) provides § This section that whoever, under color of any law, statute, ordinance, regulation or custom, willfully subjects any inhabitant state to the deprivation of any rights, privileges or immunities *9 secured or protected by the Constitution of the United Williams See imprisoned. fined be shall States, v. United 97; Screws S. 341 U. United limita of statute the appear not It does 91. U. S. §C.S. 51, 18 U. 45 Stat. prosecutions. bars yet tions to directed be should Court this of Clerk the believe We awith together ease, in this record the of copy a forward Attorney General the of attention for opinion, of copy and However, Reed Justice Mr. States. the United of paragraph. in this join not do Minton Mr. Justice Judgment affirmed. concurring. Clark, Justice Mr. I decided, when in 1949 here I been Wolf
Had of Weeks doctrine the applied have would But the states. the to (1914), States, 232 U. today. refuses still then, and so do to refused Court to entitled such, is and, as law the remains Thus Wolf membership. this Court’s of respect the announced rule the sterilize could course, we Of process, due to approach case-by-case adopting by Wolf concerning local propriety of notions inchoate in which makes But this decisions. our guide conduct police it would unpredictability and uncertainty such how by guesswork just than foretell —other to impossible — of one’s privacies the intimate invasion brazen protective into itself to shock inbe order must home result truth, practical In Constitution. arms Justices five when simply hoc approach this ad convic- action, a police local sufficiently revolted are Rochin free. may go man guilty overturned tion is ab- vindicate may thus We this. bears witness shape not do but we process, of due principle stract reversals whit; unpredictable one police local conduct curb likely are not situations fact dissimilar on intent may be who prosecutors' police of those zeal prosecu- successful percentage aup high racking on *10 I tions. do not believe that of a extension such course vacillating beyond the clear physical cases of Rochin, coercion and brutality, such as would serve a useful purpose.
In light activity police “incredible” here, it with great reluctance that I follow Perhaps Wolf. strict adherence to the tenor of that decision may produce needed converts for its extinction. I Thus merely concur in the judgment affirmance. Douglas Black, Justice with whom Mr. Justice
Mr. concurs, dissenting.
I would reverse this conviction because petitioner Irvine guilty was found of a crime and prison sentenced on extorted evidence from him by the Federal Govern- ment violation of the Fifth Amendment.
Federal law makes it a crime punishable by im- fine, prisonment, both, person for a to run a gambling busi- ness making report without a to the Government and buying a federal wagering tax stamp, both of which re- veal his gambling operations.1 Petitioner made the necessary report of his gambling activities in California and bought the required stamp. tax The information gave he the stamp he bought were used this case to convict and sentence him to prison for violating Cali- fornia’s antigambling law. For reasons given my dissent United States Kahriger, I36, believe the federal law that extracted the disclosures and required the tax stamp violates the Fifth Amendment’s command that a person shall not be compelled to be a witness against himself. But even though the law is valid, as the Court held, use such forced confessions to convict the confessors still amounts to compelling person to testify against himself in violation of the Fifth Amendment.
1 65 Stat. V) 26 U. S. C. (Supp. 3285, 3287. §§ guarantee Amendment’s agree I cannot away spirited testimony can self-incrimination against extorted federally using contrivance ingenious by versa.2 vice crimes of state to convict confessions proven has the Amendment evasion easy such Licensing debilitating no such although vitality its on drain heavy Court Amendment given interpretation *11 1931, one Murdock v. States United it decided until was Rights of Bill after forty years and hundred premise on the rested That construction adopted.3 separate and are so States and United a state protect need of them that neither another to foreign one against offenses to admit forced being against witnesses and states This treatment the other.4 of the laws entirely they were though as Government the Federal and cannot eonceptualistic wholly is to other foreign each Amend- Fifth of interpretation a narrow such justify its resulting frustration and language ment’s purpose. all fed- forbids of itself Amendment Fifth
1 think force to judicial, and executive legislative, agents, eral a such use of forbids the crime; a confess to person federal; or court, state confession federally coerced a confession to use courts all federal and forbids his will. against make to compelled been has person 2 487, U. S. v. 322 my in Feldman United dissent See Bank Vir v. The Saline 141, see United States and 284 U. S. 608; 606, Ball Walker, S. 100; v. Brown ginia, 1 Pet. Immigra 186; Vajtauer v. Commissioner Fagin, v. 200 U. mann 389, 396. Murdock, 290 U. S. v. 103; tion, 273 U. S. cases, English mainly on two placed for this view was Reliance S.) and (N. Trials Willcox, 7 State King Sicilies Two S., See discussion at 149. 311. 284 U. Queen Boyes, 1 B. & S. against privilege Amendment Fifth to the cases related these two Compulsory Self-Incrim Immunity Grant, from self-incrimination and 59-62 194-212, particularly Q. Temp. L. 57-70 ination, 9 196-204.
The Fifth Amendment forbids the Federal Govern- ment agents through and the which it courts, acts — grand juries, prosecutors, marshals or other officers—to use physical torture, psychological pressure, threats of fines, imprisonment or prosecution, governmental or other pressure to person force a testify against to And himself. if the Federal Government does extract incriminating as the Court testimony, has held it inmay compelling gamblers confess, the immunity provided by the Amendment should at the very least prevent the use of such testimony any court, federal or state.5 The use of such testimony barred, even though the Fifth may Amendment not of prohibit itself states their agents from extorting incriminating testimony.6 The does plainly Amendment all prohibit federal agencies from using power their to force self-incriminatory state- ments. Consequently, since the is the Amendment su- preme law of the land is binding on all American judges, the use of federally coerced testimony convict *12 person a of crime court, any state or federal, is forbidden.
The Fifth Amendment not only agents forbids of the Federal Government to compel person to be a witness against it himself; forbids federal to courts con- persons vict on their own forced testimony, whatever “sovereign” or may compelled have it. —federal state — Otherwise, the constitutional mandate against self- incrimination is an illusory safeguard collapses that whenever a confession is extorted by anyone other than the Federal Government.
Though not essential
disposition
to
case,
this
it seems
appropriate to add
I
that
think the Fourteenth Amend-
ment makes the Fifth
applicable
Amendment
to states
Counselman v.
Hitchcock,
So a confession on court in a state Irvine convicted this I believe Government. the Federal coerced Amendment —to Fifth purpose a basic frustrates be could power federal fear from free Americans or beliefs conduct to confess them compel to used For property. or liberty life, their away to take order Irvine’s conviction. reverse I would this reason on call should Court suggested has been It in order record investigate Attorney General certain California against prosecutions to start criminal such action object strongly I would officers. view my own with inconsistent It this Court. Prosecution, or government. in our function judicial gov- left to think, I should, it, approaching anything is. duty that whose officers ernment Bur- Frankfurter, Justice whom Mr. Justice Mr. dissenting. joins, ton for arrest appropriate warrant have an failure to
Mere miscon- aggravating circumstances search, without *13 convic- a federal evidence, invalidates obtaining in duct seizure. search and an unreasonable such helped by tion 7 (dissenting opinion); 46, California, 68 332 U. S. v. Adamson (concurring opinion). 165, California, 174 342 U. S. v. Rochin
143 placed upon was the construction the Fourth Such v. 232 Amendment Weeks United S. 383. U. Colorado, But held that the rule of 25, U. S. Wolf part the Weeks case was not to be deemed of the Due Clause of the Fourteenth Process Amendment and hence binding upon recently, was not the States. Still more California, in however, 165, Rochin S. the Court U. held that “stomach to obtain pumping” morphine cap- later in sules, trial, used as evidence was offensive to prevailing notions of prosecu- fairness the conduct of a tion and therefore invalidated a resulting conviction as contrary to the Due Process Clause.
The comprehending principle these two cases is at process.” the heart of “due judicial enforcement of the Due Process Clause is the very antithesis of a Pro crustean rule. In its first full-dress discussion of the Due Process Clause of the Fourteenth Amendment, Court defined the nature problem a “gradual process judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions bemay founded.” Davidson v. New Orleans, S.U. 104. The series of cases whereby, the light of this attitude, the scope of the Due Process Clause has been unfolded is the most striking, because the liveliest, manifestation of the wide and deep areas of law adjudication “depends upon of de differences gree. The whole law does so as soon as it is civilized.” Holmes, J., concurring LeRoy Fibre v. Chicago, Co. M. Co., & St. P. R. It is especially true of the concept of process due that between the dif of degree ferences which that inherently undefinable con cept entails “and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies the culture of two years.” thousand Ibid.
In the case, the Court rejected one absolute. In Wolf Rochin, rejected another. *14 law federal by which all conduct holding
In not con- vitiates a seizure search an unreasonable did transpires, it which with in connection viction Wolf evi- long as relevant that as decide not could not and conviction, it is immaterial a supports adequately dence holding exact For the acquired. was how evidence such opin- which the question by is defined that case of a State court by a “Does conviction itself: ion addressed law’ required of process the 'due deny offense a State evidence solely because Amendment, Fourteenth by the under circum- was obtained at the trial was admitted in a inadmissible rendered would have which stances in a court of law a federal for violation prosecution to be an infrac- deemed there because the United in applied Weeks as Amendment Fourth of the tion did not Thus, 383?” Wolf of due requirements applications change prior the whole course Court considered whereby this process, was obtained and a conviction of events of the trustworthiness to consideration not restricted the evidence. Process Clause of the Due decided that
Rochin States free does not leave Fourteenth Amendment limits on puts for crime. Clause prosecutions their enforcing process discretion of State the wide is that State case holding law. The its criminal civilized standards to methods offend cannot resort in the conviction Rochin fairness. The decency not because evi- process due found to offend case was an through unauthorized dence been obtained had compulsory self- fruit of seizure or was the search and relevant concepts, of these incrimination. Neither Rochin, the Court was invoked prosecutions, federal was not mentioned. While case so of course Wolf Rochin, inwas us, in the case before as there there is what is seizure, search and of unreasonable an element Rochin, is additional here, aggravating con- decisive repulsive. finds duct which Court adjudi- on which this case should be Thus, basis *15 “Regard cated is laid down in Rochin: for the require- ‘inescapably imposes ments the Due Process Clause upon judgment upon this Court an exercise of the whole course of the in a in proceedings [resulting conviction] they order to ascertain whether offend those canons of which decency express justice and fairness the notions of of English-speaking peoples even toward charged those ” with the most heinous offenses.’ S., U. at York, quoting from Malinski v. New at 416-417. brings specific
This us to the circumstances of this case. This is a summary of the conduct of the police:
(1) They a secretly key made to the Irvines’ front
door. (2) By boring a hole in the roof and house
using key they had enter, they made to in- stalled a secret microphone the Irvine house with a listening post a neighboring garage where officers listened in relays.
(3) Using key, they their entered the house twice
again to microphone move the in order to cut out interference from a fluorescent lamp. The they first time moved it into Mr. and Mrs. Irvine’s bedroom, and later into their bedroom closet.
(4) Using their key, they entered the house on the
night of the arrest and in the course the arrest made a search for they which had no warrant. There lacking was physical here violence, even restricted extent employed Rochin. here, We have however, a powerful more and offensive control over the Irvines’ life than a single, limited physical trespass. Cer- beyond far went here police conduct tainly the means devised police seizure. search and bare household in the Irvine said word every hear conviction affirming the Those a month. more than for incredible is “almost entirety, in its conduct, find pro not does the Court Surely admitted.” if it were not namely, that even absolute, a new to announce pose securing a conviction will means reprehensible most the accused was body as the long so taint verdict not progress Considering officials. by State touched not evidence extracting making devices are scientific proc of due harm, bodily satisfaction without violence subtlety with astuteness on the depend ess would drasti practices in offensive engage police In words authority of law. without cally privacy invade *16 said it has case, been of this prophetic too that seem for the possible made it have invention and “[djiscovery stretching than more far effective by means Government, is of what in court disclosure to obtain rack, upon dissenting Brandeis, J., the closet.” whispered 438, 473. States, 277 S.U. v. United Olmstead notion rejected of Bochin reasoning underlying The skul- form of by any a conviction may secure violence. physical not involve it long as does so duggery of infringements physical in which coercive cases involved were the individual privacy and dignity law but constitutional in our “sports deemed were not in- only are They principle. general aof applications in their that States requirement general stances conduct. of civilized certain decencies respect prosecutions principle, generative and historic law, as a process of Due standards confining, these thereby defining, precludes that convictions say than precisely more of conduct 'a sense offend by methods brought about cannot ” S., at 342 U. of justice.’ process yardstick, due not a mechanical it does Since is not afford In applying mechanical answers. the Due judicial judgment Process Clause is involved in an empiric process pre- the sense that results are not mechanically determined or ascertainable. But that is very a different thing conceiving from the results as ad hoc in the opprobrious decisions sense of ad hoc. Empiri- implies cism judgment upon variant situations experience. wisdom of Ad in adjudication hocness means treating particular a case itself and not in relation to the meaning of a guides course of decisions and the they serve for the future. There all the is difference world between disposing though case as it were a discrete instance and recognizing part process of judgment, taking place its in relation to what went before and further cutting channel for what is to come.
The effort imprison due within process tidy cate- gories misconceives its nature and is a futile endeavor to judicial save the pains judicial judg- function from the ment. It pertinent to recall how the with Court dealt this craving for unattainable in the Rochin certainty case:
“The vague contours the Due Process Clause do judges not leave large. at mayWe not draw on our merely personal private notions and disre- gard the limits that judges bind in their judicial func- tion. though Even the concept process of due of law *17 is not final fixed, these limits are derived from considerations that are in fused the whole nature of judicial our process. Cardozo, See The Nature of the Judicial Process; Growth of the Law; The Legal Paradoxes of Science.' are These considera- tions in deeply rooted in reason and the compelling- traditions of the legal profession. The Due Process places upon Clause this Court duty the of exercising judicial of confines narrow the within judgment, a inter- upon convictions, reviewing State in power directions.” opposite society pushing of ests 170-171. at U.S., ourselves satisfying by this case of dispose we can
Nor trustworthy by proven guilt defendant’s the that means other devising, finding, and then evidence illegal using from discouraged may be police whereby the evidence. such acquire to methods because notion the rejected has This Court guilt of proof on incontestable is established a conviction was secured. proof the how no matter stand, may it with questions do not has to process of due Observance is guilt which the mode but or innocence guilt of State in the conduct lawof errors Mere ascertained. Fourteenth the relief under no basis for afford trials be must of discretion swath a wide Amendment, and But when matters. such Courts the State left ele- offend which by methods is secured a conviction methods of such victim justice, mentary standards Amendment the Fourteenth protection may invoke funda- a him trial guarantees Amendment because that incorpo- idea in the sense fair mentally facts of Rochin, If, as “[o]n process. in due rated obtained been has petitioner the conviction this case Clause,” Process the Due offend methods offending say that is no answer atS.,U. meth- outrageous utilize who prosecutors policemen their misconduct.1 punished should ods courts, case, the sanction with prosecution in That the against such miscreant philosophy declared legislatively flouted make the does not merely paper, on policy and made it conduct Rochin v. Cf. process. due disregard of less a conduct supra, at 167. California,
Of course it is a loss to the community when a convic- tion is overturned because the indefensible means which it was obtained cannot be squared with the com- mands of process. due A new trial is necessitated, and by reason of the exclusion of evidence derived from the unfair aspects of the prior prosecution a guilty defendant may escape. But the can people avoid such miscarriages justice. A sturdy, self-respecting democratic commu- nity put should not up with police lawless prosecutors. people may “Our tolerate many mistakes of both intent and performance, but, with unerring instinct, they know that when any person is intentionally deprived of his rights constitutional those responsible have committed ordinary no offense. A crime of this nature, if subtly encouraged by failure to condemn and punish, certainly leads down the road to totalitarianism.” Mr. Douglas, Justice dissenting.
The search and seizure conducted this case smack of the police state, not the free America the Bill of Rights envisaged. police and their agents first made a to the key home
of a suspect. Then they bored a hole in the roof of his house. Using the key they entered the house, installed a microphone, and attached it to a wire ran through the hole in the roof to a nearby garage where officers lis- tened in relays. Twice more they used key to enter the house in order adjust the microphone. First they moved it into the bedroom where the suspect and his slept. wife Next, they put the microphone into the bedroom closet. Then they used key enter the Statement Edgar Director J. Hoover of the Federal Bureau Investigation in FBI Law Bulletin, September. Enforcement *19 warrant; had no search They suspect. the to arrest house examined they Moreover, house. the ransacked they but if to see lamp an ultraviolet under hands suspect’s had earlier they slips which betting handled had he. powder. fluorescent with impregnated to California was used obtained so The evidence prison. to here, petitioner suspect, send the abuses revolting as was as here transpired What which James against of assistance of the writs arising out writs1 speech against in his complained. Otis Otis say: had to this English essential branches of the most
“Now one A man’s house. of one’s the freedom liberty is he is as he quiet, whilst is castle; his house is if writ, This his castle. guarded prince well annihilate totally legal, would it should declared may enter our officers privilege. Custom-house per- are please; we commanded they houses when may enter, Their menial servants entry. mit their way: in their bars, every thing may locks, break revenge, malice or they through break and whether with-, court, inquire. suspicion can Bare man, no no out oath is sufficient.” behind the put In those their sanction days courts by issuing general privacy unlawful invasion no unlimited There is permitted warrant searches. take essential between that and the action we difference today. weight we throw the of the Government Today by affirming on the side of the lawless search conviction Today compound it. we based on evidence obtained complained. only which Otis Not grievance against officially invaded. The lawless invasion is privacy sending a man to approved prison. as the means of (1823), Tudor, pp. Life Otis 66-67. of James this use of unconstitutional evidence. protest against I The man guilty. is doubtless It is no answer every accused Rights designed protect Bill of were against practices police history showed unreason- oppressive against liberty. guarantee in the Fourth able searches and seizures contained In safeguards. 1914 a Amendment was one of those who obtained unanimous Court decided officers of that could not use it guarantee evidence violation v. courts. Weeks federal prosecutions police, Lawless action of the federal U. S. 383. *20 in said, judgments “should find no sanction the Id., p. courts . . . .” 392.
The departure principle from that which the Court Colorado, in in made 338 S. is part U. Wolf in deterioration civil liberties have suffered In years. recent that case the Court held that evidence obtained in Amendment, though violation of the Fourth inadmissible in federal in prosecutions, could be used prosecutions in the state Murphy, courts. Mr. Justice id., pointed dissenting, peril out the of that step, p. 44: “The is inescapable conclusion that but rem- one edy exists to deter violations of the search and seizure clause. That is the rule which excludes illegally obtained evidence. Only by exclusion can im- we press upon prosecutor the zealous violation the Constitution will do him good. no And only when that point is driven home can the prosecutor be expected emphasize to the importance of observ- ing constitutional in demands his instructions to the police.”
Exclusion of evidence is only indeed the effective sanc- tion. If the evidence can used, no matter how lawless the search, protection of the Fourth Amendment, to use the words of in the Weeks case, “might as the Court S., at U. from the Constitution.” stricken well be remedy for lawless conduct suggestion under through prosecution federal police is by the local under rights constitutional rights relegates laws the civil already An lowly to a status. the Fourth Amendment Department Justice, busily engaged overburdened devote its ener- enforcement, expected cannot be to law prosecuting police local activities gies supervising officers, except rare and occasional instances.2 police received hostility prosecutions And the which such have 91, especially (see here Screws United pp. seq.) hardly encourages putting 138 et federal prosecutor on the track of state officials who take uncon- enforcing stitutional state laws.3 short cuts If unreasonable searches and seizures violate privacy protects which the Fourth Amendment are to be If outlawed, this is the time and the occasion to do it. police officersknow that obtained their unlaw- evidence will their courts, they ful cannot be used clean acts But put an kind of action. own houses and end will long evidence, police as courts will receive the rights and the of the individual will suffer. lawlessly áct *21 weight throw our on the side of the citizen We should be alert to see police. the lawless We should against evidence is used to convict that no unconstitutional in America. person
2
Depart
analysis
rights
the
of the civil
suits instituted
For an
opinion.
Justice,
Appendix to this
see the
ment
3
hostility
federal actions —both criminal
The current
towards
rights
evidenced
laws is further
civil—under
the civil
367;
Brandhove,
70; Tenney
Williams,
v.
341 U.
341 U. S.
States
Johnston,
F.
651; Whittington v.
201
Hardyman,
341 U. S.
Collins
809,
Crafts,
867;
203 F. 2d
denied,
Francis v.
346 U. S.
2d
cert.
denied,
cert.
APPENDIX TO OPINION DOUGLAS. MR. JUSTICE re- General, was Attorney when Murphy, Mr. Justice Section Rights of the Civil for the creation sponsible February was on That of Justice. Department Attorney Gen- Clark, then In 1947 Mr. Justice 3, 1939. of its eight years in the had reported that the Section eral, complaints, instituted investigated nearly 850 existence conviction and obtained cases, prosecutions A Federal Prosecutor Clark, defendants. more than 130 L. 47 Col. Rev. Statutes, Rights at the Civil Looks on Committee the President’s Report also 181. See (1947), pp. Rights These To Secure Rights: Civil seq. et Rights the Civil work of
A more recent account En- Rights Federal Civil Putzel, will be found Section L. Rev. of Pa. A 99 U. Appraisal, : Current forcement 20 civil average that on It is there stated (1951). and convic- acquittals prosecuted year, cases are rights Id., n. 43. p. 449, divided. equally about being tions Office Administrative by the are confirmed figures These in that Records available Courts. of the United rights prosecu- number of civil following office show 1947: years in the since courts in the district filed tions three past are available figures detailed More number table shows following years. fiscal disposition trial, actually went who defendants *22 imposed on those who were the sentences cases, their convicted:
Note: These in- figures from the Administrative Office prosecutions clude all and conducted under all of the filed usually Sections of the Criminal which are called Code 241-244. Rights Sections, is, §§ Civil 18 U. C. so very rare, 243 and has been however, §§ Use under figures quoted prosecutions that most of the involve either out in the second figures § §or set appellate table do not take reversals into account such those may entered, they only have been include post-judgment district court which were motions disposed year question. of before the the fiscal end of *23 read as follows: provisions question The Code against rights citizens. Conspiracy 241. “§ of oppress, conspire injure, “If persons two or more exer- in the free threaten, any or intimidate citizen secured any right privilege or of or enjoyment cise laws of the United to him the Constitution or by so exercised having or of his States, because or same; high- on the persons go disguise
“If two or more intent another, of with way, premises or on the of enjoyment free or or hinder his exercise prevent privilege or so secured— any right im- $5,000 than or be fined not more “They shall than ten or both. prisoned years, not more color law. rights under Deprivation “§ of of ordi- any law, statute, color of “Whoever, under subjects any custom, willfully or nance, regulation, to the Territory, or District any State, inhabitant of immunities privileges, or deprivation any rights, of of the Constitution or laws protected by secured or punishments, pains, or to different States, the United an being of inhabitant penalties, or on account such than are color, race, of his or alien, or reason citizens, shall be punishment for the of prescribed imprisoned not more $1,000 more than or fined not or year, than one both. on account race or jurors 243. Exclusion
Ҥ of of color. all other possessing qualifications
“No citizen be disqualified law shall may prescribed are or of petit juror any or court grand for service as any or of State on account the United color, previous servitude; or condition of race, person charged or whoever, being an officer other summoning or in the selection duty with any citizen fails to summon or excludes jurors, $5,000. more than fined not shall be cause, such wearing uni- against person 244. Discrimination “§ armed forces. form manager, em- proprietor, “Whoever, being enter- public place or other a theater ployee Columbia, *24 District of in the or amusement tainment Possession Territory, or any inor the uniform wearing any person States, causes to be dis- of the United armed forces uniform, shall of that because against criminated $500.” more than fined not