Mapp v. Ohio

No. 236

Argued March 29, 1961

Decided June 19, 1961

367 U.S. 643

APPEAL FROM THE SUPREME COURT OF OHIO

Syllabus



All evidence obtained by searches and seizures in violation of the

Federal Constitution is inadmissible in a criminal trial in a state

court.  Wolf v. Colorado, 338 U.S. 25, overruled insofar as it holds to

the contrary.



170 Ohio St. 427, 166 N.E.2d 387, reversed. CLARK, J., lead opinion



MR. JUSTICE CLARK delivered the opinion of the Court.



Appellant stands convicted of knowingly having had in her possession and

under her control certain lewd and lascivious books, pictures, and

photographs in violation of  2905.34 of Ohio's Revised Code.  As

officially stated in the syllabus to its opinion, the Supreme Court of

Ohio found that her conviction was valid though "based primarily upon

the introduction in evidence of lewd and lascivious books and pictures

unlawfully seized during an unlawful search of defendant's home. . . ." 

170 Ohio St. 427-428, 166 N.E.2d 387, 388. [367 U.S. 644]



On May 23, 1957, three Cleveland police officers arrived at appellant's

residence in that city pursuant to information that a person [was]

hiding out in the home, who was wanted for questioning in connection

with a recent bombing, and that there was a large amount of policy

paraphernalia being hidden in the home. Miss Mapp and her daughter by a

former marriage lived on the top floor of the two-family dwelling.  Upon

their arrival at that house, the officers knocked on the door and

demanded entrance, but appellant, after telephoning her attorney,

refused to admit them without a search warrant.  They advised their

headquarters of the situation and undertook a surveillance of the house.



The officers again sought entrance some three hours later when four or

more additional officers arrived on the scene.  When Miss Mapp did not

come to the door immediately, at least one of the several doors to the

house was forcibly opened and the policemen gained admittance. 

Meanwhile Miss Mapp's attorney arrived, but the officers, having secured

their own entry, and continuing in their defiance of the law, would

permit him neither to see Miss Mapp nor to enter the house.  It appears

that Miss Mapp was halfway down the stairs from the upper floor to the

front door when the officers, in this highhanded manner, broke into the

hall.  She demanded to see the search warrant.  A paper, claimed to be a

warrant, was held up by one of the officers.  She grabbed the "warrant"

and placed it in her bosom.  A struggle ensued in which the officers

recovered the piece of paper and as a result of which they handcuffed

appellant because she had been "belligerent" [367 U.S. 645] in resisting

their official rescue of the "warrant" from her person.  Running

roughshod over appellant, a policeman "grabbed" her, "twisted [her]

hand," and she "yelled [and] pleaded with him" because "it was hurting."

 Appellant, in handcuffs, was then forcibly taken upstairs to her

bedroom where the officers searched a dresser, a chest of drawers, a

closet and some suitcases.  They also looked into a photo album and

through personal papers belonging to the appellant.  The search spread

to the rest of the second floor including the child's bedroom, the

living room, the kitchen and a dinette.  The basement of the building

and a trunk found therein were also searched.  The obscene materials for

possession of which she was ultimately convicted were discovered in the

course of that widespread search.



At the trial, no search warrant was produced by the prosecution, nor was

the failure to produce one explained or accounted for.  At best, "There

is, in the record, considerable doubt as to whether there ever was any

warrant for the search of defendant's home."  170 Ohio St. at 430, 166

N.E.2d at 389.  The Ohio Supreme Court believed a "reasonable argument"

could be made that the conviction should be reversed "because the

`methods' employed to obtain the [evidence] . . . were such as to

`offend "a sense of justice,"'" but the court found determinative the

fact that the evidence had not been taken "from defendant's person by

the use of brutal or offensive physical force against defendant."  170

Ohio St. at 431, 166 N.E.2d at 389-390.



The State says that, even if the search were made without authority, or

otherwise unreasonably, it is not prevented from using the

unconstitutionally seized evidence at trial, citing Wolf v. Colorado,

338 U.S. 25 (1949), in which this Court did indeed hold that, in a

prosecution in a State court for a State crime, the Fourteenth Amendment

[367 U.S. 646] does not forbid the admission of evidence obtained by an

unreasonable search and seizure. At p. 33.  On this appeal, of which we

have noted probable jurisdiction, 364 U.S. 868, it is urged once again

that we review that holding. I



Seventy-five years ago, in Boyd v. United States, 116 U.S. 616, 630

(1886), considering the Fourth and Fifth Amendments as running "almost

into each other" on the facts before it, this Court held that the

doctrines of those Amendments apply to all invasions on the part of the

government and its employes of the sanctity of a man's home and the

privacies of life.  It is not the breaking of his doors, and the

rummaging of his drawers, [367 U.S. 647] that constitutes the essence of

the offence; but it is the invasion of his indefeasible right of

personal security, personal liberty and private property. . . . 

Breaking into a house and opening boxes and drawers are circumstances of

aggravation; but any forcible and compulsory extortion of a man's own

testimony or of his private papers to be used as evidence to convict him

of crime or to forfeit his goods, is within the condemnation . . . [of

those Amendments]. The Court noted that constitutional provisions for

the security of person and property should be liberally construed. . . .

 It is the duty of courts to be watchful for the constitutional rights

of the citizen, and against any stealthy encroachments thereon. At p.

635.  In this jealous regard for maintaining the integrity of individual

rights, the Court gave life to Madison's prediction that independent

tribunals of justice . . . will be naturally led to resist every

encroachment upon rights expressly stipulated for in the Constitution by

the declaration of rights. I Annals of Cong. 439 (1789).  Concluding,

the Court specifically referred to the use of the evidence there seized

as "unconstitutional."  At p. 638.  Less than 30 years after Boyd, this

Court, in Weeks v. United States, 232 U.S. 383 (1914), stated that the

Fourth Amendment . . . put the courts of the United States and Federal

officials, in the exercise of their power and authority, under

limitations and restraints [and] . . . forever secure[d] the people,

their persons, houses, papers and effects against all unreasonable

searches and seizures under the guise of law . . . , and the duty of

giving to it force and effect is obligatory upon all entrusted under our

Federal system with the enforcement of the laws. At   [367 U.S. 648]

Specifically dealing with the use of the evidence unconstitutionally

seized, the Court concluded If letters and private documents can thus be

seized and held and used in evidence against a citizen accused of an

offense, the protection of the Fourth Amendment declaring his right to

be secure against such searches and seizures is of no value, and, so far

as those thus placed are concerned, might as well be stricken from the

Constitution.  The efforts of the courts and their officials to bring

the guilty to punishment, praiseworthy as they are, are not to be aided

by the sacrifice of those great principles established by years of

endeavor and suffering which have resulted in their embodiment in the

fundamental law of the land. At



Finally, the Court in that case clearly stated that use of the seized

evidence involved "a denial of the constitutional rights of the

accused."  At   Thus, in the year 1914, in the Weeks case, this Court

"for the first time" held that, "in a federal prosecution, the Fourth

Amendment barred the use of evidence secured through an illegal search

and seizure."  Wolf v. Colorado, supra, at 28.  This Court has ever

since required of federal law officers a strict adherence to that

command which this Court has held to be a clear, specific, and

constitutionally required -- even if judicially implied -- deterrent

safeguard without insistence upon which the Fourth Amendment would have

been reduced to "a form of words."  Holmes, J., Silverthorne Lumber Co.

v. United States, 251 U.S. 385, 392 (1920).  It meant, quite simply,

that "conviction by means of unlawful seizures and enforced confessions

. . . should find no sanction in the judgments of the courts . . . ,"

Weeks v. United States, supra, at 392, and that such evidence "shall not

be used at all."  Silverthorne Lumber Co. v. United States, supra, at

392. [367 U.S. 649]



There are in the cases of this Court some passing references to the

Weeks rule as being one of evidence.  But the plain and unequivocal

language of Weeks -- and its later paraphrase in Wolf -- to the effect

that the Weeks rule is of constitutional origin, remains entirely

undisturbed.  In Byars v. United States, 273 U.S. 28 (1927), a unanimous

Court declared that the doctrine [cannot] . . . be tolerated under our

constitutional system, that evidences of crime discovered by a federal

officer in making a search without lawful warrant may be used against

the victim of the unlawful search where a timely challenge has been

interposed. At pp. 29-30 (emphasis added).  The Court, in Olmstead v.

United States, 277 U.S. 438 (1928), in unmistakable language restated

the Weeks rule:



The striking outcome of the Weeks case and those which followed it was

the sweeping declaration that the Fourth Amendment, although not

referring to or limiting the use of evidence in courts, really forbade

its introduction if obtained by government officers through a violation

of the Amendment. At   In McNabb v. United States, 318 U.S. 332 (1943),

we note this statement: [A] conviction in the federal courts, the

foundation of which is evidence obtained in disregard of liberties

deemed fundamental by the Constitution, cannot stand.  Boyd v. United

States . . .  Weeks v. United States. . . .  And this Court has, on

Constitutional grounds, set aside convictions, both in the federal and

state courts, which were based upon confessions "secured by protracted

and repeated questioning of ignorant and untutored persons, in whose

minds the power of officers was greatly magnified" [367 U.S. 650] . . .

or "who have been unlawfully held incommunicado without advice of

friends or counsel." . . . At pp. 339-340.  Significantly, in McNabb,

the Court did then pass on to formulate a rule of evidence, saying, [i]n

the view we take of the case, however, it becomes unnecessary to reach

the Constitutional issue, [for] . . . [t]he principles governing the

admissibility of evidence in federal criminal trials have not been

restricted . . . to those derived solely from the Constitution. At pp.

340-341. II



In 1949, 35 years after Weeks was announced, this Court, in Wolf v.

Colorado, supra, again for the first time, discussed the effect of the

Fourth Amendment upon the States through the operation of the Due

Process Clause of the Fourteenth Amendment.  It said: [W]e have no

hesitation in saying that, were a State affirmatively to sanction such

police incursion into privacy, it would run counter to the guaranty of

the Fourteenth Amendment. At   Nevertheless, after declaring that the

"security of one's privacy against arbitrary intrusion by the police" is

"implicit in `the concept of ordered liberty' and, as such, enforceable

against the States through the Due Process Clause," cf. Palko v.

Connecticut, 302 U.S. 319 (1937), and announcing that it "stoutly

adhere[d]" to the Weeks decision, the Court decided that the Weeks

exclusionary rule would not then be imposed upon the States as "an

essential ingredient of the right."  338 U.S. at 27-29.  The Court's

reasons for not considering essential to the [367 U.S. 651] right to

privacy, as a curb imposed upon the States by the Due Process Clause,

that which decades before had been posited as part and parcel of the

Fourth Amendment's limitation upon federal encroachment of individual

privacy, were bottomed on factual considerations.



While they are not basically relevant to a decision that the

exclusionary rule is an essential ingredient of the Fourth Amendment as

the right it embodies is vouchsafed against the States by the Due

Process Clause, we will consider the current validity of the factual

grounds upon which Wolf was based.



The Court in Wolf first stated that "[t]he contrariety of views of the

States" on the adoption of the exclusionary rule of Weeks was

"particularly impressive" (at p. 29); and, in this connection, that it

could not brush aside the experience of States which deem the incidence

of such conduct by the police too slight to call for a deterrent remedy

. . . by overriding the [States'] relevant rules of evidence. At  

While, in 1949, prior to the Wolf case, almost two-thirds of the States

were opposed to the use of the exclusionary rule, now, despite the Wolf

case, more than half of those since passing upon it, by their own

legislative or judicial decision, have wholly or partly adopted or

adhered to the Weeks rule.  See Elkins v. United States, 364 U.S. 206,

Appendix, pp. (1960).  Significantly, among those now following the rule

is California, which, according to its highest court, was compelled to

reach that conclusion because other remedies have completely failed to

secure compliance with the constitutional provisions. . . . People v.

Cahan, 44 Cal.2d 434, 445, 282 P.2d 905, 911 (1955).  In connection with

this California case, we note that the second basis elaborated in Wolf

in support of its failure to enforce the exclusionary doctrine against

the States was that "other means of protection" have been afforded "the

[367 U.S. 652] right to privacy."  338 U.S. at 30.  The experience of

California that such other remedies have been worthless and futile is

buttressed by the experience of other States.  The obvious futility of

relegating the Fourth Amendment to the protection of other remedies has,

moreover, been [367 U.S. 653] recognized by this Court since Wolf.   See

Irvine v. California, 347 U.S. 128, 137 (1954).



Likewise, time has set its face against what Wolf called the "weighty

testimony" of People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926). 

There, Justice (then Judge) Cardozo, rejecting adoption of the Weeks

exclusionary rule in New York, had said that "[t]he Federal rule as it

stands is either too strict or too lax."  242 N.Y. at 22, 150 N.E. at

588.  However, the force of that reasoning has been largely vitiated by

later decisions of this Court.  These include the recent discarding of

the "silver platter" doctrine which allowed federal judicial use of

evidence seized in violation of the Constitution by state agents, Elkins

v. United States, supra; the relaxation of the formerly strict

requirements as to standing to challenge the use of evidence thus

seized, so that now the procedure of exclusion, "ultimately referable to

constitutional safeguards," is available to anyone even "legitimately on

[the] premises" unlawfully searched, Jones v. United States, 362 U.S.

257, (1960); and, finally, the formulation of a method to prevent state

use of evidence unconstitutionally seized by federal agents, Rea v.

United States, 350 U.S. 214 (1956).  Because there can be no fixed

formula, we are admittedly met with "recurring questions of the

reasonableness of searches," but less is not to be expected when dealing

with a Constitution, and, at any rate, "[r]easonableness is in the first

instance for the [trial court] . . . to determine."  United States v.

Rabinowitz, 339 U.S. 56, 63 (1950).



It therefore plainly appears that the factual considerations supporting

the failure of the Wolf Court to include the Weeks exclusionary rule

when it recognized the enforceability of the right to privacy against

the States in 1949, while not basically relevant to the constitutional

consideration, could not, in any analysis, now be deemed controlling.

[367 U.S. 654] III



Some five years after Wolf, in answer to a plea made here Term after

Term that we overturn its doctrine on applicability of the Weeks

exclusionary rule, this Court indicated that such should not be done

until the States had "adequate opportunity to adopt or reject the

[Weeks] rule."  Irvine v. California, supra, at 134.  There again, it

was said: Never until June of 1949 did this Court hold the basic search

and seizure prohibition in any way applicable to the states under the

Fourteenth Amendment. Ibid.   And only last Term, after again carefully

reexamining the Wolf doctrine in Elkins v. United States, supra, the

Court pointed out that "the controlling principles" as to search and

seizure and the problem of admissibility "seemed clear" (at p. 212)

until the announcement in Wolf "that the Due Process Clause of the

Fourteenth Amendment does not itself require state courts to adopt the

exclusionary rule" of the Weeks case.  At   At the same time, the Court

pointed out, the underlying constitutional doctrine which Wolf

established . . . that the Federal Constitution . . . prohibits

unreasonable searches and seizures by state officers had undermined the

"foundation upon which the admissibility of state-seized evidence in a

federal trial originally rested. . . ."  Ibid.  The Court concluded that

it was therefore obliged to hold, although it chose the narrower ground

on which to do so, that all evidence obtained by an unconstitutional

search and seizure was inadmissible in a federal court regardless of its

source.  Today we once again examine Wolf's constitutional documentation

of the right to privacy free from unreasonable state intrusion, and,

after its dozen years on our books, are led by it to close the only [367

U.S. 655] courtroom door remaining open to evidence secured by official

lawlessness in flagrant abuse of that basic right, reserved to all

persons as a specific guarantee against that very same unlawful conduct.

 We hold that all evidence obtained by searches and seizures in

violation of the Constitution is, by that same authority, inadmissible

in a state court. IV



Since the Fourth Amendment's right of privacy has been declared

enforceable against the States through the Due Process Clause of the

Fourteenth, it is enforceable against them by the same sanction of

exclusion as is used against the Federal Government.  Were it otherwise,

then, just as without the Weeks rule the assurance against unreasonable

federal searches and seizures would be "a form of words," valueless and

undeserving of mention in a perpetual charter of inestimable human

liberties, so too, without that rule, the freedom from state invasions

of privacy would be so ephemeral and so neatly severed from its

conceptual nexus with the freedom from all brutish means of coercing

evidence as not to merit this Court's high regard as a freedom "implicit

in the concept of ordered liberty."  At the time that the Court held in

Wolf that the Amendment was applicable to the States through the Due

Process Clause, the cases of this Court, as we have seen, had

steadfastly held that as to federal officers the Fourth Amendment

included the exclusion of the evidence seized in violation of its

provisions.  Even Wolf "stoutly adhered" to that proposition.  The right

to privacy, when conceded operatively enforceable against the States,

was not susceptible of destruction by avulsion of the sanction upon

which its protection and enjoyment had always been deemed dependent

under the Boyd, Weeks and Silverthorne cases.  Therefore, in extending

the substantive protections of due process to all constitutionally

unreasonable searches -- state or federal -- it was [367 U.S. 656]

logically and constitutionally necessary that the exclusion doctrine --

an essential part of the right to privacy -- be also insisted upon as an

essential ingredient of the right newly recognized by the Wolf case.  In

short, the admission of the new constitutional right by Wolf could not

consistently tolerate denial of its most important constitutional

privilege, namely, the exclusion of the evidence which an accused had

been forced to give by reason of the unlawful seizure.  To hold

otherwise is to grant the right but, in reality, to withhold its

privilege and enjoyment.  Only last year, the Court itself recognized

that the purpose of the exclusionary rule is to deter -- to compel

respect for the constitutional guaranty in the only effectively

available way -- by removing the incentive to disregard it. Elkins v.

United States, supra, at 217.



Indeed, we are aware of no restraint, similar to that rejected today,

conditioning the enforcement of any other basic constitutional right. 

The right to privacy, no less important than any other right carefully

and particularly reserved to the people, would stand in marked contrast

to all other rights declared as "basic to a free society."  Wolf v.

Colorado, supra, at 27.  This Court has not hesitated to enforce as

strictly against the States as it does against the Federal Government

the rights of free speech and of a free press, the rights to notice and

to a fair, public trial, including, as it does, the right not to be

convicted by use of a coerced confession, however logically relevant it

be, and without regard to its reliability.  Rogers v. Richmond, 365 U.S.

534 (1961).  And nothing could be more certain than that, when a coerced

confession is involved, "the relevant rules of evidence" are overridden

without regard to "the incidence of such conduct by the police," slight

or frequent.  Why should not the same rule apply to what is tantamount

to coerced testimony by way of unconstitutional seizure of goods,

papers, effects, documents, etc.?  We find that, [367 U.S. 657] as to

the Federal Government, the Fourth and Fifth Amendments and, as to the

States, the freedom from unconscionable invasions of privacy and the

freedom from convictions based upon coerced confessions do enjoy an

"intimate relation" in their perpetuation of "principles of humanity and

civil liberty [secured] . . . only after years of struggle," Bram v.

United States, 168 U.S. 532, (1897).  They express "supplementing phases

of the same constitutional purpose to maintain inviolate large areas of

personal privacy."  Feldman v. United States, 322 U.S. 487, 489-490

(1944).  The philosophy of each Amendment and of each freedom is

complementary to, although not dependent upon, that of the other in its

sphere of influence -- the very least that together they assure in

either sphere is that no man is to be convicted on unconstitutional

evidence.  Cf. Rochin v. California, 342 U.S. 165, 173 (1952). V



Moreover, our holding that the exclusionary rule is an essential part of

both the Fourth and Fourteenth Amendments is not only the logical

dictate of prior cases, but it also makes very good sense.  There is no

war between the Constitution and common sense.  Presently, a federal

prosecutor may make no use of evidence illegally seized, but a State's

attorney across the street may, although he supposedly is operating

under the enforceable prohibitions of the same Amendment.  Thus, the

State, by admitting evidence unlawfully seized, serves to encourage

disobedience to the Federal Constitution which it is bound to uphold. 

Moreover, as was said in Elkins, "[t]he very essence of a healthy

federalism depends upon the avoidance of needless conflict between [367

U.S. 658] state and federal courts."  364 U.S. at 221.  Such a conflict,

hereafter needless, arose this very Term in Wilson v. Schnettler, 365

U.S. 381 (1961), in which, and in spite of the promise made by Rea, we

gave full recognition to our practice in this regard by refusing to

restrain a federal officer from testifying in a state court as to

evidence unconstitutionally seized by him in the performance of his

duties.  Yet the double standard recognized until today hardly put such

a thesis into practice.  In nonexclusionary States, federal officers,

being human, were by it invited to, and did, as our cases indicate, step

across the street to the State's attorney with their unconstitutionally

seized evidence.  Prosecution on the basis of that evidence was then had

in a state court in utter disregard of the enforceable Fourth Amendment.

 If the fruits of an unconstitutional search had been inadmissible in

both state and federal courts, this inducement to evasion would have

been sooner eliminated.  There would be no need to reconcile such cases

as Rea and Schnettler, each pointing up the hazardous uncertainties of

our heretofore ambivalent approach.



Federal-state cooperation in the solution of crime under constitutional

standards will be promoted, if only by recognition of their now mutual

obligation to respect the same fundamental criteria in their approaches.

However much in a particular case insistence upon such rules may appear

as a technicality that inures to the benefit of a guilty person, the

history of the criminal law proves that tolerance of shortcut methods in

law enforcement impairs its enduring effectiveness. Miller v. United

States, 357 U.S. 301, 313 (1958).  Denying shortcuts to only one of two

cooperating law enforcement agencies tends naturally to breed legitimate

suspicion of "working arrangements" whose results are equally tainted. 

Byars v. United States, 273 U.S. 28 (1927); Lustig v. United States, 338

U.S. 74 (1949). [367 U.S. 659]



There are those who say, as did Justice (then Judge) Cardozo, that,

under our constitutional exclusionary doctrine, "[t]he criminal is to go

free because the constable has blundered."  People v. Defore, 242 N.Y.

at 21, 150 N.E. at 587.  In some cases, this will undoubtedly be the

result.  But, as was said in Elkins, "there is another consideration --

the imperative of judicial integrity."  364 U.S. at 222.  The criminal

goes free, if he must, but it is the law that sets him free.  Nothing

can destroy a government more quickly than its failure to observe its

own laws, or worse, its disregard of the charter of its own existence. 

As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States,

277 U.S. 438, 485 (1928): Our Government is the potent, the omnipresent

teacher.  For good or for ill, it teaches the whole people by its

example. . . .  If the Government becomes a lawbreaker, it breeds

contempt for law; it invites every man to become a law unto himself; it

invites anarchy. Nor can it lightly be assumed that, as a practical

matter, adoption of the exclusionary rule fetters law enforcement.  Only

last year, this Court expressly considered that contention and found

that "pragmatic evidence of a sort" to the contrary was not wanting. 

Elkins v. United States, supra, at 218.  The Court noted that The

federal courts themselves have operated under the exclusionary rule of

Weeks for almost half a century; [367 U.S. 660] yet it has not been

suggested either that the Federal Bureau of Investigation{10} has

thereby been rendered ineffective, or that the administration of

criminal justice in the federal courts has thereby been disrupted. 

Moreover, the experience of the states is impressive. . . .  The

movement towards the rule of exclusion has been halting, but seemingly

inexorable. Id. at



The ignoble shortcut to conviction left open to the State tends to

destroy the entire system of constitutional restraints on which the

liberties of the people rest.{11}  Having once recognized that the right

to privacy embodied in the Fourth Amendment is enforceable against the

States, and that the right to be secure against rude invasions of

privacy by state officers is, therefore, constitutional in origin, we

can no longer permit that right to remain an empty promise.  Because it

is enforceable in the same manner and to like effect as other basic

rights secured by the Due Process Clause, we can no longer permit it to

be revocable at the whim of any police officer who, in the name of law

enforcement itself, chooses to suspend its enjoyment.  Our decision,

founded on reason and truth, gives to the individual no more than that

which the Constitution guarantees him, to the police officer no less

than that to which honest law enforcement is entitled, and, to the

courts, that judicial integrity so necessary in the true administration

of justice.



The judgment of the Supreme Court of Ohio is reversed, and the cause

remanded for further proceedings not inconsistent with this opinion.



Reversed and remanded. [367 U.S. 661] BLACK, J., concurring



MR. JUSTICE BLACK, concurring.



For nearly fifty years, since the decision of this Court in Weeks v.

United States, federal courts have refused to permit the introduction

into evidence against an accused of his papers and effects obtained by

"unreasonable searches and seizures" in violation of the Fourth

Amendment.  In Wolf v. Colorado, decided in 1948, however, this Court

held that, in a prosecution in a State court for a State crime, the

Fourteenth Amendment does not forbid the admission of evidence obtained

by an unreasonable search and seizure. I concurred in that holding on

these grounds: For reasons stated in my dissenting opinion in Adamson v.

California, 332 U.S. 46, 68, I agree with the conclusion of the Court

that the Fourth Amendment's prohibition of "unreasonable searches and

seizures" is enforceable against the states.  Consequently, I should be

for reversal of this case if I thought the Fourth Amendment not only

prohibited "unreasonable searches and seizures," but also, of itself,

barred the use of evidence so unlawfully obtained.  But I agree with

what appears to be a plain implication of the Court's opinion that the

federal exclusionary rule is not a command of the Fourth Amendment, but

is a judicially created rule of evidence which Congress might negate.



I am still not persuaded that the Fourth Amendment, standing alone,

would be enough to bar the introduction into evidence against an accused

of papers and effects seized from him in violation of its commands.  For

the Fourth Amendment does not itself contain any provision expressly

precluding the use of such evidence, and I am [367 U.S. 662] extremely

doubtful that such a provision could properly be inferred from nothing

more than the basic command against unreasonable searches and seizures. 

Reflection on the problem, however, in the light of cases coming before

the Court since Wolf, has led me to conclude that, when the Fourth

Amendment's ban against unreasonable searches and seizures is considered

together with the Fifth Amendment's ban against compelled

self-incrimination, a constitutional basis emerges which not only

justifies, but actually requires, the exclusionary rule.



The close interrelationship between the Fourth and Fifth Amendments, as

they apply to this problem, has long been recognized and, indeed, was

expressly made the ground for this Court's holding in Boyd v. United

States.  There, the Court fully discussed this relationship and declared

itself unable to perceive that the seizure of a man's private books and

papers to be used in evidence against him is substantially different

from compelling him to be a witness against himself. It was upon this

ground that Mr. Justice Rutledge largely relied in his dissenting

opinion in the Wolf case.  And, although I rejected the argument at that

time, its force has, for me at least, become compelling with the more

thorough understanding of the problem brought on by recent cases.  In

the final analysis, it seems to me that the Boyd doctrine, though

perhaps not required by the express language of the Constitution,

strictly construed, is amply justified from an historical standpoint,

soundly based in reason, [367 U.S. 663] and entirely consistent with

what I regard to be the proper approach to interpretation of our Bill of

Rights -- an approach well set out by Mr. Justice Bradley in the Boyd

case: [C]onstitutional provisions for the security of person and

property should be liberally construed.  A close and literal

construction deprives them of half their efficacy, and leads to gradual

depreciation of the right, as if it consisted more in sound than in

substance.  It is the duty of the courts to be watchful for the

constitutional rights of the citizen, and against any stealthy

encroachments thereon.



The case of Rochin v. California, which we decided three years after the

Wolf case, authenticated, I think, the soundness of Mr. Justice

Bradley's and Mr. Justice Rutledge's reliance upon the interrelationship

between the Fourth and Fifth Amendments as requiring the exclusion of

unconstitutionally seized evidence.  In the Rochin case, three police

officers, acting with neither a judicial warrant nor probable cause,

entered Rochin's home for the purpose of conducting a search, and broke

down the door to a bedroom occupied by Rochin and his wife.  Upon their

entry into the room, the officers saw Rochin pick up and swallow two

small capsules.  They immediately seized him and took him in handcuffs

to a hospital, where the capsules [367 U.S. 664] were recovered by use

of a stomach pump.  Investigation showed that the capsules contained

morphine, and evidence of that fact was made the basis of his conviction

of a crime in a state court.



When the question of the validity of that conviction was brought here,

we were presented with an almost perfect example of the

interrelationship between the Fourth and Fifth Amendments.  Indeed,

every member of this Court who participated in the decision of that case

recognized this interrelationship and relied on it, to some extent at

least, as justifying reversal of Rochin's conviction.  The majority,

though careful not to mention the Fifth Amendment's provision that "[n]o

person . . . shall be compelled in any criminal case to be a witness

against himself," showed at least that it was not unaware that such a

provision exists, stating: Coerced confessions offend the community's

sense of fair play and decency. . . .  It would be a stultification of

the responsibility which the course of constitutional history has cast

upon this Court to hold that, in order to convict a man, the police

cannot extract by force what is in his mind, but can extract what is in

his stomach.{10} The methods used by the police thus were, according to

the majority, "too close to the rack and the screw to permit of

constitutional differentiation,"{11} and the case was reversed on the

ground that these methods had violated the Due Process Clause of the

Fourteenth Amendment in that the treatment accorded Rochin was of a kind

that "shocks the conscience," "offend[s] `a sense of justice'" and fails

to "respect certain decencies of civilized conduct."{12}



I concurred in the reversal of the Rochin case, but on the ground that

the Fourteenth Amendment made the Fifth Amendment's provision against

self-incrimination [367 U.S. 665] applicable to the States and that,

given a broad, rather than a narrow, construction, that provision barred

the introduction of this "capsule" evidence just as much as it would

have forbidden the use of words Rochin might have been coerced to

speak.{13}  In reaching this conclusion, I cited and relied on the Boyd

case, the constitutional doctrine of which was, of course, necessary to

my disposition of the case.  At that time, however, these views were

very definitely in the minority, for only MR. JUSTICE DOUGLAS and I

rejected the flexible and uncertain standards of the "shock the

conscience test" used in the majority opinion.{14}



Two years after Rochin, in Irvine v. California,{15} we were again

called upon to consider the validity of a conviction based on evidence

which had been obtained in a manner clearly unconstitutional and

arguably shocking to the conscience.  The five opinions written by this

Court in that case demonstrate the utter confusion and uncertainty that

had been brought about by the Wolf and Rochin decisions.  In concurring,

MR. JUSTICE CLARK emphasized the unsatisfactory nature of the Court's

"shock the conscience test," saying that this "test" makes for such

uncertainty and unpredictability that it would be impossible to foretell

-- other than by guesswork -- just how brazen the invasion of the

intimate privacies of one's home must be in order to shock itself into

the protective arms of the Constitution.  In truth, the practical result

of this ad hoc approach is simply that, when five Justices are

sufficiently revolted by local police action, a conviction is overturned

and a guilty man may go free.{16} [367 U.S. 666]



Only one thing emerged with complete clarity from the Irvine case --

that is that seven Justices rejected the "shock the conscience"

constitutional standard enunciated in the Wolf and Rochin cases.  But

even this did not lessen the confusion in this area of the law, because

the continued existence of mutually inconsistent precedents, together

with the Court's inability to settle upon a majority opinion in the

Irvine case, left the situation at least as uncertain as it had been

before.{17}  Finally, today, we clear up that uncertainty.  As I

understand the Court's opinion in this case, we again reject the

confusing "shock the conscience" standard of the Wolf and Rochin cases

and, instead, set aside this state conviction in reliance upon the

precise, intelligible and more predictable constitutional doctrine

enunciated in the Boyd case.  I fully agree with Mr. Justice Bradley's

opinion that the two Amendments upon which the Boyd doctrine rests are

of vital importance in our constitutional scheme of liberty, and that

both are entitled to a liberal, rather than a niggardly, interpretation.

 The courts of the country are entitled to know with as much certainty

as possible what scope they cover.  The Court's opinion, in my judgment,

dissipates the doubt and uncertainty in this field of constitutional

law, and I am persuaded, for this and other reasons stated, to depart

from my prior views, to accept the Boyd doctrine as controlling in this

state case, and to join the Court's judgment and opinion, which are in

accordance with that constitutional doctrine. DOUGLAS, J., concurring



MR. JUSTICE DOUGLAS, concurring.



Though I have joined the opinion of the Court, I add a few words.  This

criminal proceeding started with a lawless search and seizure.  The

police entered a home [367 U.S. 667] forcefully, and seized documents

that were later used to convict the occupant of a crime.



She lived alone with her fifteen-year-old daughter in the second-floor

flat of a duplex in Cleveland.  At about 1:30 in the afternoon of May

23, 1957, three policemen arrived at this house.  They rang the bell,

and the appellant, appearing at her window, asked them what they wanted.

 According to their later testimony, the policemen had come to the house

on information from a confidential source that there was a person hiding

out in the home who was wanted for questioning in connection with a

recent bombing. To the appellant's question, however, they replied only

that they wanted to question her, and would not state the subject about

which they wanted to talk.



The appellant, who had retained an attorney in connection with a pending

civil matter, told the police she would call him to ask if she should

let them in.  On her attorney's advice, she told them she would let them

in only when they produced a valid search warrant.  For the next two and

a half hours, the police laid siege to the house.  At four o'clock,

their number was increased to at least seven.  Appellant's lawyer

appeared on the scene, and one of the policemen told him that they now

had a search warrant, but the officer refused to show it.  Instead,

going to the back door, the officer first tried to kick it in and, when

that proved unsuccessful, he broke the glass in the door and opened it

from the inside.



The appellant, who was on the steps going up to her flat, demanded to

see the search warrant, but the officer refused to let her see it,

although he waved a paper in front of her face.  She grabbed it and

thrust it down the front of her dress.  The policemen seized her, took

the paper [367 U.S. 668] from her, and had her handcuffed to another

officer.  She was taken upstairs, thus bound, and into the larger of the

two bedrooms in the apartment; there she was forced to sit on the bed. 

Meanwhile, the officers entered the house and made a complete search of

the four rooms of her flat and of the basement of the house.



The testimony concerning the search is largely nonconflicting.  The

approach of the officers; their long wait outside the home, watching all

its doors; the arrival of reinforcements armed with a paper; breaking

into the house; putting their hands on appellant and handcuffing her;

numerous officers ransacking through every room and piece of furniture

while the appellant sat, a prisoner in her own bedroom.  There is direct

conflict in the testimony, however, as to where the evidence which is

the basis of this case was found.  To understand the meaning of that

conflict, one must understand that this case is based on the knowing

possession of four little pamphlets, a couple of photographs, and a

little pencil doodle -- all of which are alleged to be pornographic.



According to the police officers who participated in the search, these

articles were found, some in appellant's [367 U.S. 669] dressers and

some in a suitcase found by her bed.  According to appellant, most of

the articles were found in a cardboard box in the basement; one in the

suitcase beside her bed.  All of this material, appellant -- and a

friend of hers -- said were odds and ends belonging to a recent boarder,

a man who had left suddenly for New York and had been detained there. 

As the Supreme Court of Ohio read the statute under which appellant is

charged, she is guilty of the crime whichever story is true.



The Ohio Supreme Court sustained the conviction even though it was based

on the documents obtained in the lawless search.  For, in Ohio, evidence

obtained by an unlawful search and seizure is admissible in a criminal

prosecution, at least where it was not taken from the "defendant's

person by the use of brutal or offensive force against defendant." 

State v. Mapp, 170 Ohio St. 427, 166 N.E.2d at 388, syllabus 2; State v.

Lindway, 131 Ohio St. 166, 2 N.E.2d 490.  This evidence would have been

inadmissible in a federal prosecution.  Weeks v. United States, 232 U.S.

383; Elkins v. United States, 364 U.S. 206.  For, as stated in the

former decision, The effect of the Fourth Amendment is to put the courts

of the United States and Federal officials, in the exercise of their

power and authority, under limitations and restraints. . . . Id.   It

was therefore held that evidence obtained (which in that case was

documents and correspondence) from a home without any warrant was not

admissible in a federal prosecution.



We held in Wolf v. Colorado, 338 U.S. 25, that the Fourth Amendment was

applicable to the States by reason of the Due Process Clause of the

Fourteenth Amendment.  But a majority held that the exclusionary rule of

the Weeks case was not required of the States, that they could apply

such sanctions as they chose.  That position had the necessary votes to

carry the day.  But, with all respect, it was not the voice of reason or

principle. [367 U.S. 670]



As stated in the Weeks case, if evidence seized in violation of the

Fourth Amendment can be used against an accused, "his right to be secure

against such searches and seizures is of no value, and . . . might as

well be stricken from the Constitution."  232 U.S. at 393.



When we allowed States to give constitutional sanction to the "shabby

business" of unlawful entry into a home (to use an expression of Mr.

Justice Murphy, Wolf v. Colorado, at 46), we did indeed rob the Fourth

Amendment of much meaningful force.  There are, of course, other

theoretical remedies.  One is disciplinary action within the hierarchy

of the police system, including prosecution of the police officer for a

crime.  Yet, as Mr. Justice Murphy said in Wolf v. Colorado, at 42,

Self-scrutiny is a lofty ideal, but its exaltation reaches new heights

if we expect a District Attorney to prosecute himself or his associates

for well meaning violations of the search and seizure clause during a

raid the District Attorney or his associates have ordered.



The only remaining remedy, if exclusion of the evidence is not required,

is an action of trespass by the homeowner against the offending officer.

 Mr. Justice Murphy showed how onerous and difficult it would be for the

citizen to maintain that action, and how meagre the relief even if the

citizen prevails.  338 U.S. 42-44.  The truth is that trespass actions

against officers who make unlawful searches and seizures are mainly

illusory remedies.



Without judicial action making the exclusionary rule applicable to the

States, Wolf v. Colorado, in practical effect, reduced the guarantee

against unreasonable searches and seizures to "a dead letter," as Mr.

Justice Rutledge said in his dissent.  See 338 U.S. at 47.



Wolf v. Colorado, supra, was decided in 1949.  The immediate result was

a storm of constitutional controversy which only today finds its end.  I

believe that this is an appropriate case in which to put an end to the

asymmetry which Wolf imported into the law.  See [367 U.S. 671]

Stefanelli v. Minard, 342 U.S. 117; Rea v. United States, 350 U.S. 214;

Elkins v. United States, supra; Monroe v. Pape, 365 U.S. 167.  It is an

appropriate case because the facts it presents show -- as would few

other cases -- the casual arrogance of those who have the untrammelled

power to invade one's home and to seize one's person.



It is also an appropriate case in the narrower and more technical sense.

 The issues of the illegality of the search and the admissibility of the

evidence have been presented to the state court, and were duly raised

here in accordance with the applicable Rule of Practice.  The question

was raised in the notice of appeal, the jurisdictional statement and in

appellant's brief on the merits.  It is true that argument was mostly

directed to another issue in the case, but that is often the fact.  See

Rogers v. Richmond, 365 U.S. 534,   Of course, an earnest advocate of a

position always believes that, had he only an additional opportunity for

argument, his side would win.  But, subject to the sound discretion of a

court, all argument must at last come to a halt.  This is especially so

as to an issue about which this Court said last year that "The arguments

of its antagonists and of its proponents have been so many times

marshalled as to require no lengthy elaboration here."  Elkins v. United

States, supra, 216.



Moreover, continuance of Wolf v. Colorado in its full vigor breeds the

unseemly shopping around of the kind revealed in Wilson v. Schnettler,

365 U.S. 381.  Once evidence, inadmissible in a federal court, is

admissible in [367 U.S. 672] a state court a "double standard" exists

which, as the Court points out, leads to "working arrangements" that,

undercut federal policy and reduce some aspects of law enforcement to

shabby business.  The rule that supports that practice does not have the

force of reason behind it. STEWART, J., memorandum



Memorandum of MR. JUSTICE STEWART.



Agreeing fully with Part I of MR. JUSTICE HARLAN's dissenting opinion, I

express no view as to the merits of the constitutional issue which the

Court today decides.  I would, however, reverse the judgment in this

case, because I am persuaded that the provision of  2905.34 of the Ohio

Revised Code, upon which the petitioner's conviction was based, is, in

the words of MR. JUSTICE HARLAN, not "consistent with the rights of free

thought and expression assured against state action by the Fourteenth

Amendment." HARLAN, J., dissenting



MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE

WHITTAKER join, dissenting.



In overruling the Wolf case, the Court, in my opinion, has forgotten the

sense of judicial restraint which, with due regard for stare decisis, is

one element that should enter into deciding whether a past decision of

this Court should be overruled.  Apart from that, I also believe that

the Wolf rule represents sounder Constitutional doctrine than the new

rule which now replaces it. I



From the Court's statement of the case, one would gather that the

central, if not controlling, issue on this appeal is whether illegally

state-seized evidence is Constitutionally admissible in a state

prosecution, an issue which would, of course, face us with the need for

reexamining Wolf.  However, such is not the situation.  For, although

that question was indeed raised here and below among appellant's

subordinate points, the new and [367 U.S. 673] pivotal issue brought to

the Court by this appeal is whether  2905.34 of the Ohio Revised Code,

making criminal the mere knowing possession or control of obscene

material, and under which appellant has been convicted, is consistent

with the rights of free thought and expression assured against state

action by the Fourteenth Amendment.  That was the principal issue which

was decided by the Ohio Supreme Court, which was tendered by appellant's

Jurisdictional Statement, and which was briefed and argued in this

Court. [367 U.S. 674]



In this posture of things, I think it fair to say that five members of

this Court have simply "reached out" to overrule Wolf.  With all

respect, for the views of the majority, and recognizing that stare

decisis carries different [367 U.S. 675] weight in Constitutional

adjudication than it does in nonconstitutional decision, I can perceive

no justification for regarding this case as an appropriate occasion for

reexamining Wolf.



The action of the Court finds no support in the rule that decision of

Constitutional issues should be avoided wherever possible.  For, in

overruling Wolf, the Court, instead of passing upon the validity of

Ohio's  2905.34, has simply chosen between two Constitutional questions.

 Moreover, I submit that it has chosen the more difficult and less

appropriate of the two questions.  The Ohio statute which, as construed

by the State Supreme Court, punishes knowing possession or control of

obscene material, irrespective of the purposes of such possession or

control (with exceptions not here applicable) and irrespective of

whether the accused had any reasonable opportunity to rid himself of the

material after discovering that it was obscene, surely presents a

Constitutional [367 U.S. 676] question which is both simpler and less

far-reaching than the question which the Court decides today.  It seems

to me that justice might well have been done in this case without

overturning a decision on which the administration of criminal law in

many of the States has long justifiably relied.



Since the demands of the case before us do not require us to reach the

question of the validity of Wolf, I think this case furnishes a

singularly inappropriate occasion for reconsideration of that decision,

if reconsideration is indeed warranted.  Even the most cursory

examination will reveal that the doctrine of the Wolf case has been of

continuing importance in the administration of state criminal law. 

Indeed, certainly as regards its "nonexclusionary" aspect, Wolf did no

more than articulate the then existing assumption among the States that

the federal cases enforcing the exclusionary rule do not bind [the

States], for they construe provisions of the Federal Constitution, the

Fourth and Fifth Amendments, not applicable to the States. People v.

Defore, 242 N.Y. 13, 20, 150 N.E. 585, 587.  Though, of course, not

reflecting the full measure of this continuing reliance, I find that,

during the last three Terms, for instance, the issue of the

inadmissibility of illegally state-obtained evidence appears on an

average of about fifteen times per Term just in the in forma pauperis

cases summarily disposed of by us.  This would indicate both that the

issue which is now being decided may well have untoward practical

ramifications respecting state cases long since disposed of in reliance

on Wolf, and that were we determined to reexamine that doctrine, we

would not lack future opportunity.



The occasion which the Court has taken here is in the context of a case

where the question was briefed not at all and argued only extremely

tangentially.  The unwisdom of overruling Wolf without full-dress

argument [367 U.S. 677] is aggravated by the circumstance that that

decision is a comparatively recent one (1949) to which three members of

the present majority have at one time or other expressly subscribed,

one, to be sure, with explicit misgivings.  I would think that our

obligation to the States, on whom we impose this new rule, as well as

the obligation of orderly adherence to our own processes would demand

that we seek that aid which adequate briefing and argument lends to the

determination of an important issue.  It certainly has never been a

postulate of judicial power that mere altered disposition, or subsequent

membership on the Court, is sufficient warrant for overturning a

deliberately decided rule of Constitutional law.



Thus, if the Court were bent on reconsidering Wolf, I think that there

would soon have presented itself an appropriate opportunity in which we

could have had the benefit of full briefing and argument.  In any event,

at the very least, the present case should have been set down for

reargument, in view of the inadequate briefing and argument we have

received on the Wolf point.  To all intents and purpose,s the Court's

present action amounts to a summary reversal of Wolf, without argument.



I am bound to say that what has been done is not likely to promote

respect either for the Court's adjudicatory process or for the stability

of its decisions.  Having been unable, however, to persuade any of the

majority to a different procedural course, I now turn to the merits of

the present decision. [367 U.S. 678] II



Essential to the majority's argument against Wolf is the proposition

that the rule of Weeks v. United States, 232 U.S. 383, excluding in

federal criminal trials the use of evidence obtained in violation of the

Fourth Amendment, derives not from the "supervisory power" of this Court

over the federal judicial system, but from Constitutional requirement. 

This is so because no one, I suppose, would suggest that this Court

possesses any general supervisory power over the state courts.  Although

I entertain considerable doubt as to the soundness of this foundational

proposition of the majority, cf. Wolf v. Colorado, 338 U.S. at 39-40

(concurring opinion), I shall assume, for present purposes, that the

Weeks rule "is of constitutional origin."



At the heart of the majority's opinion in this case is the following

syllogism:  (1) the rule excluding in federal criminal trials evidence

which is the product of an illegal search and seizure is "part and

parcel" of the Fourth Amendment; (2) Wolf held that the "privacy"

assured against federal action by the Fourth Amendment is also protected

against state action by the Fourteenth Amendment, and (3) it is

therefore "logically and constitutionally necessary" that the Weeks

exclusionary rule should also be enforced against the States.{10}



This reasoning ultimately rests on the unsound premise that, because

Wolf carried into the States, as part of "the concept of ordered

liberty" embodied in the Fourteenth Amendment, the principle of

"privacy" underlying the Fourth Amendment (338 U.S. at 27), it must

follow that whatever configurations of the Fourth Amendment have been

developed in the particularizing federal precedents are likewise to be

deemed a part of "ordered liberty," [367 U.S. 679] and as such are

enforceable against the States.  For me, this does not follow at all.



It cannot be too much emphasized that what was recognized in Wolf was

not that the Fourth Amendment, as such, is enforceable against the

States as a facet of due process, a view of the Fourteenth Amendment

which, as Wolf itself pointed out (338 U.S. at 26), has long since been

discredited, but the principle of privacy "which is at the core of the

Fourth Amendment."  (Id. at 27.)  It would not be proper to expect or

impose any precise equivalence, either as regards the scope of the right

or the means of its implementation, between the requirements of the

Fourth and Fourteenth Amendments.  For the Fourth, unlike what was said

in Wolf of the Fourteenth, does not state a general principle only; it

is a particular command, having its setting in a preexisting legal

context on which both interpreting decisions and enabling statutes must

at least build.



Thus, even in a case which presented simply the question of whether a

particular search and seizure was constitutionally "unreasonable" -- say

in a tort action against state officers -- we would not be true to the

Fourteenth Amendment were we merely to stretch the general principle of

individual privacy on a Procrustean bed of federal precedents under the

Fourth Amendment.  But, in this instance, more than that is involved,

for here we are reviewing not a determination that what the state police

did was Constitutionally permissible (since the state court quite

evidently assumed that it was not), but a determination that appellant

was properly found guilty of conduct which, for present purposes, it is

to be assumed the State could Constitutionally punish.  Since there is

not the slightest suggestion that Ohio's policy is "affirmatively to

sanction . . . police incursion into privacy," (338 U.S. at 28), compare

Marcus v. Search Warrants, post, p. 717, what the Court is now doing is

to impose [367 U.S. 680] upon the States not only federal substantive

standards of "search and seizure", but also the basic federal remedy for

violation of those standards.  For I think it entirely clear that the

Weeks exclusionary rule is but a remedy which, by penalizing past

official misconduct, is aimed at deterring such conduct in the future.



I would not impose upon the States this federal exclusionary remedy. 

The reasons given by the majority for now suddenly turning its back on

Wolf seem to me notably unconvincing.



First, it is said that "the factual grounds upon which Wolf was based"

have since changed, in that more States now follow the Weeks

exclusionary rule than was so at the time Wolf was decided.  While that

is true, a recent survey indicates that, at present, one-half of the

States still adhere to the common law non-exclusionary rule, and one,

Maryland, retains the rule as to felonies.  Berman and Oberst,

Admissibility of Evidence Obtained by an Unconstitutional Search and

Seizure, 55 N.W.L.Rev. 525, 532-533.  But, in any case, surely all this

is beside the point, as the majority itself indeed seems to recognize. 

Our concern here, as it was in Wolf, is not with the desirability of

that rule, but only with the question whether the States are

Constitutionally free to follow it or not as they may themselves

determine, and the relevance of the disparity of views among the States

on this point lies simply in the fact that the judgment involved is a

debatable one.  Moreover, the very fact on which the majority relies,

instead of lending support to what is now being done, points away from

the need of replacing voluntary state action with federal compulsion.



The preservation of a proper balance between state and federal

responsibility in the administration of criminal justice demands

patience on the part of those who might like to see things move faster

among the States in this respect.  Problems of criminal law enforcement

vary [367 U.S. 681] widely from State to State.  One State, in

considering the totality of its legal picture, may conclude that the

need for embracing the Weeks rule is pressing because other remedies are

unavailable or inadequate to secure compliance with the substantive

Constitutional principle involved.  Another, though equally solicitous

of Constitutional rights, may choose to pursue one purpose at a time,

allowing all evidence relevant to guilt to be brought into a criminal

trial, and dealing with Constitutional infractions by other means. 

Still another may consider the exclusionary rule too rough-and-ready a

remedy, in that it reaches only unconstitutional intrusions which

eventuate in criminal prosecution of the victims.  Further, a State

after experimenting with the Weeks rule for a time may, because of

unsatisfactory experience with it, decide to revert to a

non-exclusionary rule.  And so on.  From the standpoint of

Constitutional permissibility in pointing a State in one direction or

another, I do not see at all why "time has set its face against" the

considerations which led Mr. Justice Cardozo, then chief judge of the

New York Court of Appeals, to reject for New York in People v. Defore,

242 N.Y. 13, 150 N.E. 585, the Weeks exclusionary rule.  For us, the

question remains, as it has always been, one of state power, not one of

passing judgment on the wisdom of one state course or another.  In my

view, this Court should continue to forbear from fettering the States

with an adamant rule which may embarrass them in coping with their own

peculiar problems in criminal law enforcement.



Further, we are told that imposition of the Weeks rule on the States

makes "very good sense," in that it will promote recognition by state

and federal officials of their "mutual obligation to respect the same

fundamental criteria" in their approach to law enforcement, and will

avoid "`needless conflict between state and federal courts.'"  Indeed,

the majority now finds an incongruity [367 U.S. 682] in Wolf's

discriminating perception between the demands of "ordered liberty" as

respects the basic right of "privacy" and the means of securing it among

the States.  That perception, resting both on a sensitive regard for our

federal system and a sound recognition of this Court's remoteness from

particular state problems, is, for me, the strength of that decision.



An approach which regards the issue as one of achieving procedural

symmetry or of serving administrative convenience surely disfigures the

boundaries of this Court's functions in relation to the state and

federal courts.  Our role in promulgating the Weeks rule and its

extensions in such cases as Rea, Elkins, and Rios{11} was quite a

different one than it is here.  There, in implementing the Fourth

Amendment, we occupied the position of a tribunal having the ultimate

responsibility for developing the standards and procedures of judicial

administration within the judicial system over which it presides.  Here,

we review state procedures whose measure is to be taken not against the

specific substantive commands of the Fourth Amendment, but under the

flexible contours of the Due Process Clause.  I do not believe that the

Fourteenth Amendment empowers this Court to mould state remedies

effectuating the right to freedom from "arbitrary intrusion by the

police" to suit its own notions of how things should be done, as, for

instance, the California Supreme Court did in People v. Cahan, 44 Cal.2d

434, 282 P.2d 905, with reference to procedures in the California

courts, or as this Court did in Weeks for the lower federal courts.



A state conviction comes to us as the complete product of a sovereign

judicial system.  Typically, a case will have been tried in a trial

court, tested in some final appellate [367 U.S. 683] court, and will go

no further.  In the comparatively rare instance when a conviction is

reviewed by us on due process grounds, we deal then with a finished

product in the creation of which we are allowed no hand, and our task,

far from being one of over-all supervision, is, speaking generally,

restricted to a determination of whether the prosecution was

constitutionally fair.  The specifics of trial procedure, which in every

mature legal system will vary greatly in detail, are within the sole

competence of the States.  I do not see how it can be said that a trial

becomes unfair simply because a State determines that evidence may be

considered by the trier of fact, regardless of how it was obtained, if

it is relevant to the one issue with which the trial is concerned, the

guilt or innocence of the accused.  Of course, a court may use its

procedures as an incidental means of pursuing other ends than the

correct resolution of the controversies before it.  Such indeed is the

Weeks rule, but if a State does not choose to use its courts in this

way, I do not believe that this Court is empowered to impose this

much-debated procedure on local courts, however efficacious we may

consider the Weeks rule to be as a means of securing Constitutional

rights.



Finally, it is said that the overruling of Wolf is supported by the

established doctrine that the admission in evidence of an involuntary

confession renders a state conviction constitutionally invalid.  Since

such a confession may often be entirely reliable, and therefore of the

greatest relevance to the issue of the trial, the argument continues,

this doctrine is ample warrant in precedent that the way evidence was

obtained, and not just its relevance, is constitutionally significant to

the fairness of a trial.  I believe this analogy is not a true one.  The

"coerced confession" rule is certainly not a rule that any illegally

obtained statements may not be used in evidence.  I would suppose that a

statement which is procured during [367 U.S. 684] a period of illegal

detention, McNabb v. United States, 318 U.S. 332, is, as much as

unlawfully seized evidence, illegally obtained, but this Court has

consistently refused to reverse state convictions resting on the use of

such statements.  Indeed, it would seem the Court laid at rest the very

argument now made by the majority when, in Lisenba v. California, 314

U.S. 219, a state-coerced confession case, it said (at 235): It may be

assumed [that the] treatment of the petitioner [by the police] . . .

deprived him of his liberty without due process, and that the petitioner

would have been afforded preventive relief if he could have gained

access to a court to seek it.



But illegal acts, as such, committed in the course of obtaining a

confession . . . do not furnish an answer to the constitutional question

we must decide. . . .  The gravamen of his complaint is the unfairness

of the use of his confessions, and what occurred in their procurement is

relevant only as it bears on that issue. (Emphasis supplied.)



The point, then, must be that, in requiring exclusion of an involuntary

statement of an accused, we are concerned not with an appropriate remedy

for what the police have done, but with something which is regarded as

going to the heart of our concepts of fairness in judicial procedure. 

The operative assumption of our procedural system is that Ours is the

accusatorial, as opposed to the inquisitorial system.  Such has been the

characteristic of Anglo-American criminal justice since it freed itself

from practices borrowed by the Star Chamber from the Continent whereby

the accused was interrogated in secret for hours on end. Watts v.

Indiana, 338 U.S. 49, 54.  See Rogers v. Richmond, 365 U.S. 534, 541. 

The pressures brought to bear against an accused leading to a

confession, unlike an unconstitutional violation of privacy, do not,

apart [367 U.S. 685] from the use of the confession at trial,

necessarily involve independent Constitutional violations.  What is

crucial is that the trial defense to which an accused is entitled should

not be rendered an empty formality by reason of statements wrung from

him, for then "a prisoner . . . [has been] made the deluded instrument

of his own conviction."  2 Hawkins, Pleas of the Crown (8th ed., 1824),

c. 46,  34.  That this is a procedural right, and that its violation

occurs at the time his improperly obtained statement is admitted at

trial, is manifest.  For without this right, all the careful safeguards

erected around the giving of testimony, whether by an accused or any

other witness, would become empty formalities in a procedure where the

most compelling possible evidence of guilt, a confession, would have

already been obtained at the unsupervised pleasure of the police.



This, and not the disciplining of the police, as with illegally seized

evidence, is surely the true basis for excluding a statement of the

accused which was unconstitutionally obtained.  In sum, I think the

coerced confession analogy works strongly against what the Court does

today.



In conclusion, it should be noted that the majority opinion in this case

is, in fact, an opinion only for the judgment overruling Wolf, and not

for the basic rationale by which four members of the majority have

reached that result.  For my Brother BLACK is unwilling to subscribe to

their view that the Weeks exclusionary rule derives from the Fourth

Amendment itself (see ante, p. 661), but joins the majority opinion on

the premise that its end result can be achieved by bringing the Fifth

Amendment to the aid of the Fourth (see ante pp. .{12}  On that score I

need only say that whatever the validity of [367 U.S. 686] the

"Fourth-Fifth Amendment" correlation which the Boyd case (116 U.S. 616)

found, see 8 Wigmore, Evidence (3d ed.1940),  2184, we have only very

recently again reiterated the long-established doctrine of this Court

that the Fifth Amendment privilege against self-incrimination is not

applicable to the States.  See Cohen v. Hurley, 366 U.S. 117.



I regret that I find so unwise in principle and so inexpedient in policy

a decision motivated by the high purpose of increasing respect for

Constitutional rights.  But, in the last analysis, I think this Court

can increase respect for the Constitution only if it rigidly respects

the limitations which the Constitution places upon it, and respects as

well the principles inherent in its own processes.  In the present case,

I think we exceed both, and that our voice becomes only a voice of

power, not of reason. Footnotes CLARK, J., lead opinion (Footnotes)



1. The statute provides in pertinent part that



No person shall knowingly . . . have in his possession or under his

control an obscene, lewd, or lascivious book [or] . . . picture. . . .



Whoever violates this section shall be fined not less than two hundred

nor more than two thousand dollars or imprisoned not less than one nor

more than seven years, or both.



2. A police officer testified that "we did pry the screen door to gain

entrance"; the attorney on the scene testified that a policeman "tried .

. . to kick in the door" and then "broke the glass in the door and

somebody reached in and opened the door and let them in"; the appellant

testified that "[t]he back door was broken."



3. Other issues have been raised on this appeal but, in the view we have

taken of the case, they need not be decided.  Although appellant chose

to urge what may have appeared to be the surer ground for favorable

disposition, and did not insist that Wolf be overruled, the amicus

curiae, who was also permitted to participate in the oral argument, did

urge the Court to overrule Wolf.



4.



The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.



5. The close connection between the concepts later embodied in these two

Amendments had been noted at least as early as 1765 by Lord Camden, on

whose opinion in Entick v. Carrington, 19 Howell's State Trials 1029,

the Boyd court drew heavily.  Lord Camden had noted, at 1073: It is very

certain that the law obligeth no man to accuse himself, because the

necessary means of compelling self-accusation, falling upon the innocent

as well as the guilty, would be both cruel and unjust, and it should

seem that search for evidence is disallowed upon the same principle. 

There too, the innocent would be confounded with the guilty.



6. See, however, National Safe Deposit Co. v. Stead, 232 U.S. 58 (1914),

and Adams v. New York, 192 U.S. 585 (1904).



7. Less than half of the States have any criminal provisions relating

directly to unreasonable searches and seizures.  The punitive sanctions

of the 23 States attempting to control such invasions of the right of

privacy may be classified as follows:



Criminal Liability of Affiant for Malicious Procurement of Search

Warrant. -- Ala.Code, 1958, Tit. 15,  99; Alaska Comp.Laws Ann., 1949, 

66-7-15; Ariz.Rev.Stat.Ann., 1956,  13-1454; Cal.Pen.Code  170;

Fla.Stat., 1959,  933.16; Ga.Code Ann., 1953,  27-301; Idaho Code Ann.,

1948,  18-709; Iowa Code Ann., 1950,  751.38; Minn.Stat.Ann., 1947, 

613.54; Mont.Rev.Codes Ann., 1947,  94-35-122; Nev.Rev.Stat.  199.130,

199.140; N.J.Stat.Ann., 1940,  33:1-64; N.Y.Pen.Law  1786, N.Y.Code

Crim.Proc.  811; N.C.Gen.Stat., 1953,  15-27 (applies to "officers"

only); N.D.Century Code Ann., 1960,  12-17-08, 29-29-18; Okla.Stat.,

1951, Tit. 21,  585, Tit. 22,  1239; Ore.Rev.Stat.  141.990; S.D.Code,

1939 (Supp. 1960),  34.9904; Utah Code Ann., 1953, 77-54-21.



Criminal Liability of Magistrate Issuing Warrant Without Supporting

Affidavit. -- N.C.Gen.Stat., 1953,  15-27; Va.Code Ann., 1960

Replacement Volume,  19.1-89.



Criminal Liability of Officer Willfully Exceeding Authority of Search

Warrant. -- Fla.Stat.Ann., 1944,  933.17; Iowa Code Ann., 1950,  751.39;

Minn.Stat.Ann., 1947,  613.54; Nev.Rev.Stat.  199.450; N.Y.Pen.Law 

1847, N.Y.Code Crim.Proc.  812; N.D.Century Code Ann., 1960,  12-17-07,

29-29-19; Okla.Stat., 1951, Tit. 21,  536, Tit. 22,  1240; S.D.Code,

1939 (Supp. 1960),  34.9905; Tenn.Code Ann., 1955,  40-510; Utah Code

Ann., 1953,  77-54-22.



Criminal Liability of Officer for Search with Invalid Warrant or no

Warrant. -- Idaho Code Ann., 1948,  18-703; Minn.Stat.Ann., 1947, 

613.53, 621.17; Mo.Ann.Stat., 1953,  558.190; Mont.Rev.Codes Ann., 1947,

 94-3506; N.J.Stat.Ann., 1940,  33:1-65; N.Y.Pen.Law  1846; N.D. Century

Code Ann., 1960,  12-17-06; Okla.Stat.Ann., 1958, Tit. 21,  535; Utah

Code Ann., 1953,  76-28-52; Va.Code Ann., 1960 Replacement Volume, 

19.1-88; Wash.Rev.Code  10.79.040, 10.79.045.



8. But compare Waley v. Johnston, 316 U.S. 101, 104, and Chambers v.

Florida, 309 U.S. 227, 236, with Weeks v. United States, 232 U.S. 383,

and Wolf v. Colorado, 338 U.S. 25.



9. As is always the case, however, state procedural requirements

governing assertion and pursuance of direct and collateral

constitutional challenges to criminal prosecutions must be respected. 

We note, moreover, that the class of state convictions possibly affected

by this decision is of relatively narrow compass when compared with

Burns v. Ohio, 360 U.S. 252, Griffin v. Illinois, 351 U.S. 12, and

Herman v. Claudy, 350 U.S. 116.  In those cases, the same contention was

urged and later proved unfounded.  In any case, further delay in

reaching the present result could have no effect other than to compound

the difficulties.



10. See the remarks of Mr. Hoover, Director of the Federal Bureau of

Investigation, FBI Law Enforcement Bulletin, September, 1952, pp. 1-2,

quoted in Elkins v. United States, 364 U.S. 206,  note 8.



11. Cf. Marcus v. Search Warrant, post, BLACK, J., concurring

(Footnotes)



1. 232 U.S. 383, decided in 1914.



2. 338 U.S. 25, 33.



3. Id. at 39-40.



4. The interrelationship between the Fourth and the Fifth Amendments in

this area does not, of course, justify a narrowing in the interpretation

of either of these Amendments with respect to areas in which they

operate separately.  See Feldman v. United States, 322 U.S. 487, 502-503

(dissenting opinion); Frank v. Maryland, 359 U.S. 360, 374-384

(dissenting opinion).



5. 116 U.S. 616.



6. Id. at 633.



7. 338 U.S. at 47-48.



8. 116 U.S. at 635.  As the Court points out, Mr. Justice Bradley's

approach to interpretation of the Bill of Rights stemmed directly from

the spirit in which that great charter of liberty was offered for

adoption on the floor of the House of Representatives by its framer,

James Madison: If they [the first ten Amendments] are incorporated into

the Constitution, independent tribunals of justice will consider

themselves in a peculiar manner the guardians of those rights; they will

be an impenetrable bulwark against every assumption of power in the

Legislative or Executive; they will be naturally led to resist every

encroachment upon rights expressly stipulated for in the Constitution by

the declaration of rights. I Annals of Congress 439 (1789).



9. 342 U.S. 165.



10. Id. at 173.



11. Id. at 172.



12. Id. at 172, 173



13. Id. at 174-177



14. For the concurring opinion of MR. JUSTICE DOUGLAS see id. at



15. 347 U.S. 128.



16. Id. at 138.



17. See also United States v. Rabinowitz, 339 U.S. 56, 66-68 (dissenting

opinion). DOUGLAS, J., concurring (Footnotes)



1. This "confidential source" told the police, in the same breath, that

"there was a large amount of policy paraphernalia being hidden in the

home."



2. The purported warrant has disappeared from the case.  The State made

no attempt to prove its existence, issuance or contents, either at the

trial or on the hearing of a preliminary motion to suppress.  The

Supreme Court of Ohio said: There is, in the record, considerable doubt

as to whether there ever was any warrant for the search of defendant's

home. . . .  Admittedly . . . there was no warrant authorizing a search

. . . for any "lewd, or lascivious book . . . print, [or] picture." 170

Ohio St. 427, 430, 166 N.E.2d 387, 389.  (Emphasis added.)



3. Ohio Rev.Code,  2905.34:



No person shall knowingly . . . have in his possession or under his

control an obscene, lewd, or lascivious book, magazine, pamphlet, paper,

writing, advertisement, circular, print, picture . . . or drawing . . .

of an indecent or immoral nature. . . .  Whoever violates this section

shall be fined not less than two hundred nor more than two thousand

dollars or imprisoned not less than one nor more than seven years, or

both.



4. The notice of appeal . . . shall set forth the questions presented by

the appeal. . . .  Only the questions set forth in the notice of appeal

or fairly comprised therein will be considered by the court. Rule

10(2)(c), Rules of the Supreme Court of the United States.



5. Did the conduct of the police in procuring the books, papers and

pictures placed in evidence by the Prosecution violate Amendment IV,

Amendment V, and Amendment XIV Section 1 of the United States

Constitution . . . ? HARLAN, J., dissenting (Footnotes)



1. The material parts of that law are quoted in note 1 of the Court's

opinion.  Ante, p. 643.



2. In its note 3, ante, p. 646, the Court, it seems to me, has turned

upside down the relative importance of appellant's reliance on the

various points made by him on this appeal.



3. See 170 Ohio St. 427, 166 N.E.2d 387.  Because of the unusual

provision of the Ohio Constitution requiring "the concurrence of at

least all but one of the judges" of the Ohio Supreme Court before a

state law is held unconstitutional (except in the case of affirmance of

a holding of unconstitutionality by the Ohio Court of Appeals), Ohio

Const., Art. IV,  2, the State Supreme Court was compelled to uphold the

constitutionality of  2905.34 despite the fact that four of its seven

judges thought the statute offensive to the Fourteenth Amendment.



4. Respecting the "substantiality" of the federal questions tendered by

this appeal, appellant's Jurisdictional Statement contained the

following:



The Federal questions raised by this appeal are substantial for the

following reasons:



The Ohio Statute under which the defendant was convicted violates one's

sacred right to own and hold property, which has been held inviolate by

the Federal Constitution.  The right of the individual to read, to

believe or disbelieve, and to think without governmental supervision is

one of our basic liberties, but to dictate to the mature adult what

books he may have in his own private library seems to be a clear

infringement of the constitutional rights of the individual (Justice

Herbert's dissenting Opinion, Appendix "A").  Many convictions have

followed that of the defendant in the State Courts of Ohio based upon

this very same statute.  Unless this Honorable Court hears this matter

and determines once and for all that the Statute is unconstitutional as

defendant contends, there will be many such appeals.  When Sections

2905.34, 2905.37 and 3767.01 of the Ohio Revised Code [the latter two

Sections providing exceptions to the coverage of  2905.34 and related

provisions of Ohio's obscenity statutes] are read together, . . . they

obviously contravene the Federal and State constitutional provisions; by

being convicted under the Statute involved herein, and in the manner in

which she was convicted, Defendant-Appellant has been denied due process

of law; a sentence of from one (1) to seven (7) years in a penal

institution for alleged violation of this unconstitutional section of

the Ohio Revised Code deprives the defendant of her right to liberty and

the pursuit of happiness, contrary to the Federal and State

constitutional provisions, for circumstances which she herself did not

put in motion, and is a cruel and unusual punishment inflicted upon her

contrary to the State and Federal Constitutions.



5. The appellant's brief did not urge the overruling of Wolf.  Indeed,

it did not even cite the case. The brief of the appellee merely relied

on Wolf in support of the State's contention that appellant's conviction

was not vitiated by the admission in evidence of the fruits of the

alleged unlawful search and seizure by the police.  The brief of the

American and Ohio Civil Liberties Unions, as amici, did, in one short

concluding paragraph of its argument, "request" the Court to reexamine

and overrule Wolf, but without argumentation.  I quote in full this part

of their brief:



This case presents the issue of whether evidence obtained in an illegal

search and seizure can constitutionally be used in a State criminal

proceeding.  We are aware of the view that this Court has taken on this

issue in Wolf v. Colorado, 338 U.S. 25.  It is our purpose by this

paragraph to respectfully request that this Court reexamine this issue

and conclude that the ordered liberty concept guaranteed to persons by

the due process clause of the Fourteenth Amendment necessarily requires

that evidence illegally obtained in violation thereof, not be admissible

in state criminal proceedings.



6. Counsel for appellant on oral argument, as in his brief, did not urge

that Wolf be overruled.  Indeed, when pressed by questioning from the

bench whether he was not, in fact, urging us to overrule Wolf, counsel

expressly disavowed any such purpose.



7.



2905.37  LEGITIMATE PUBLICATIONS NOT OBSCENE.



Sections 2905.33 to 2905.36, inclusive, of the Revised Code do not

affect teaching in regularly chartered medical colleges, the publication

of standard medical books, or regular practitioners of medicine or

druggists in their legitimate business, nor do they affect the

publication and distribution of bona fide works of art.  No articles

specified in sections 2905.33, 2905.34, and 2905.36 of the Revised Code

shall be considered a work of art unless such article is made,

published, and distributed by a bona fide association of artists or an

association for the advancement of art whose demonstrated purpose does

not contravene sections 2905.06 to 2905.44, inclusive, of the Revised

Code, and which is not organized for profit.



3767.01(c) This section and sections 2905.34, . . . 2905.37 . . . of the

Revised Code shall not affect . . . any newspaper, magazine, or other

publication entered as second class matter by the post office

department.



8. The Ohio Supreme Court, in its construction of  2905.34, controlling

upon us here, refused to import into it any other exceptions than those

expressly provided by the statute.  See note 7, supra.  Instead, it held

that "If anyone looks at a book and finds it lewd, he is forthwith,

under this legislation, guilty. . . ."



9. See Wolf v. Colorado, 338 U.S. at 39-40; Irvine v. California, 347

U.S. 128, 133-134, and at 138-139.  In the latter case, decided in 1954,

Mr. Justice Jackson, writing for the majority, said (at p. 134):  "We

think that the Wolf decision should not be overruled, for the reasons so

persuasively stated therein."  Compare Schwartz v. Texas, 344 U.S. 199,

and Stefanelli v. Minard, 342 U.S. 117, in which the Wolf case was

discussed and in no way disapproved.  And see Pugach v. Dollinger, 365

U.S. 458, which relied on Schwartz.



10. Actually, only four members of the majority support this reasoning. 

See pp.  infra.



11. Rea v. United States, 350 U.S. 214; Elkins v. United States, 364

U.S. 206; Rios v. United States, 364 U.S. 253.



12. My Brother STEWART concurs in the Court's judgment on grounds which

have nothing to do with Wolf.

