Mapp v. Ohio 367 U.S. 643 (1961)

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Mapp v. Ohio, 367 U.S. 643 (1961)

Mapp v. Ohio

No. 236

Argued March 29, 1961

Decided June 19, 1961

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Mapp v. Ohio

Primary HoldingThe prosecution is not allowed topresent evidence that lawenforcement secured during a searchthat...

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367 U.S. 643

APPEAL FROM THE SUPREME COURT OF OHIO

MR. JUSTICE CLARK delivered the opinion of theCourt.

Appellant stands convicted of knowingly having hadin her possession and under her control certain lewdand lascivious books, pictures, and photographs inviolation of § 2905.34 of Ohio's Revised Code.[Footnote 1] As officially stated in the syllabus to itsopinion, the Supreme Court of Ohio found that herconviction was valid though "based primarily uponthe introduction in evidence of lewd and lasciviousbooks and pictures unlawfully seized during anunlawful search of defendant's home . . . ." 170 OhioSt. 427-428, 166 N.E.2d 387, 388.

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On May 23, 1957, three Cleveland police officersarrived at appellant's residence in that city pursuantto information that "a person [was] hiding out in thehome, who was wanted for questioning inconnection with a recent bombing, and that therewas a large amount of policy paraphernalia beinghidden in the home." Miss Mapp and her daughterby a former marriage lived on the top floor of thetwo-family dwelling. Upon their arrival at that house,the officers knocked on the door and demandedentrance, but appellant, after telephoning herattorney, refused to admit them without a searchwarrant. They advised their headquarters of thesituation and undertook a surveillance of the house.

The officers again sought entrance some three hourslater when four or more additional officers arrived onthe scene. When Miss Mapp did not come to thedoor immediately, at least one of the several doorsto the house was forcibly opened [Footnote 2] andthe policemen gained admittance. Meanwhile Miss

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Mapp's attorney arrived, but the officers, havingsecured their own entry, and continuing in theirdefiance of the law, would permit him neither to seeMiss Mapp nor to enter the house. It appears thatMiss Mapp was halfway down the stairs from theupper floor to the front door when the officers, in thishighhanded manner, broke into the hall. Shedemanded to see the search warrant. A paper,claimed to be a warrant, was held up by one of theofficers. She grabbed the "warrant" and placed it inher bosom. A struggle ensued in which the officersrecovered the piece of paper and as a result ofwhich they handcuffed appellant because she hadbeen "belligerent"

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in resisting their official rescue of the "warrant" fromher person. Running roughshod over appellant, apoliceman "grabbed" her, "twisted [her] hand," andshe "yelled [and] pleaded with him" because "it washurting." Appellant, in handcuffs, was then forciblytaken upstairs to her bedroom where the officerssearched a dresser, a chest of drawers, a closet andsome suitcases. They also looked into a photoalbum and through personal papers belonging to theappellant. The search spread to the rest of thesecond floor including the child's bedroom, theliving room, the kitchen and a dinette. The basementof the building and a trunk found therein were alsosearched. The obscene materials for possession ofwhich she was ultimately convicted were discoveredin the course of that widespread search.

At the trial, no search warrant was produced by theprosecution, nor was the failure to produce oneexplained or accounted for. At best, "There is, in therecord, considerable doubt as to whether there everwas any warrant for the search of defendant'shome." 170 Ohio St. at 430, 166 N.E.2d at 389. TheOhio Supreme Court believed a "reasonable

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argument" could be made that the conviction shouldbe reversed "because the methods' employed toobtain the [evidence] . . . were such as to 'offend "asense of justice,"'" but the court found determinativethe fact that the evidence had not been taken "fromdefendant's person by the use of brutal or offensivephysical force against defendant." 170 Ohio St. at431, 166 N.E.2d at 389-390.

The State says that, even if the search were madewithout authority, or otherwise unreasonably, it is notprevented from using the unconstitutionally seizedevidence 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 Amend-

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ment does not forbid the admission of evidenceobtained by an unreasonable search and seizure." Atp. 33. On this appeal, of which we have notedprobable jurisdiction, 364 U.S. 868, it is urged onceagain that we review that holding. [Footnote 3]

I

Seventy-five years ago, in Boyd v. United States,116 U. S. 616, 630 (1886), considering the Fourth[Footnote 4] and Fifth Amendments as running"almost into each other" [Footnote 5] on the factsbefore it, this Court held that the doctrines of thoseAmendments

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"apply to all invasions on the part ofthe government and its employes ofthe sanctity of a man's home and theprivacies of life. It is not the breaking ofhis doors, and the rummaging of hisdrawers,

The Court noted that

In this jealous regard for maintaining the integrity ofindividual rights, the Court gave life to Madison'sprediction that "independent tribunals of justice . . .will be naturally led to resist every encroachmentupon rights expressly stipulated for in theConstitution by the declaration of rights." I Annals ofCong. 439 (1789). Concluding, the Court specificallyreferred to the use of the evidence there seized as"unconstitutional." At p. 638. Less than 30 yearsafter Boyd, this Court, in Weeks v. United States,232 U. S. 383 (1914), stated that

that constitutes the essence of theoffence; but it is the invasion of hisindefeasible right of personal security,personal liberty and privateproperty. . . . Breaking into a houseand opening boxes and drawers arecircumstances of aggravation; but anyforcible and compulsory extortion of aman's own testimony or of his privatepapers to be used as evidence toconvict him of crime or to forfeit hisgoods, is within the condemnation . . .[of those Amendments]."

"constitutional provisions for thesecurity of person and property shouldbe liberally construed. . . . It is the dutyof courts to be watchful for theconstitutional rights of the citizen, andagainst any stealthy encroachmentsthereon." At p. 635.

"the Fourth Amendment . . . put thecourts of the United States andFederal officials, in the exercise of theirpower and authority, under limitationsand restraints [and] . . . foreversecure[d] the people, their persons,houses, papers and effects against all

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Specifically dealing with the use of the evidenceunconstitutionally seized, the Court concluded

Finally, the Court in that case clearly stated that useof the seized evidence involved "a denial of theconstitutional rights of the accused." At pp. 398.Thus, in the year 1914, in the Weeks case, this Court"for the first time" held that, "in a federalprosecution, the Fourth Amendment barred the useof evidence secured through an illegal search andseizure." Wolf v. Colorado, supra, at 28. This Courthas ever since required of federal law officers a strictadherence to that command which this Court hasheld to be a clear, specific, and constitutionallyrequired--even if judicially implied--deterrent

unreasonable searches and seizuresunder the guise of law . . . , and theduty of giving to it force and effect isobligatory upon all entrusted under ourFederal system with the enforcementof the laws." At pp. 391-392.

"If letters and private documents canthus be seized and held and used inevidence against a citizen accused ofan offense, the protection of the FourthAmendment declaring his right to besecure against such searches andseizures is of no value, and, so far asthose thus placed are concerned,might as well be stricken from theConstitution. The efforts of the courtsand their officials to bring the guilty topunishment, praiseworthy as they are,are not to be aided by the sacrifice ofthose great principles established byyears of endeavor and suffering whichhave resulted in their embodiment inthe fundamental law of the land." At p.393.

safeguard without insistence upon which the FourthAmendment would have been reduced to "a form ofwords." Holmes, J., Silverthorne Lumber Co. v.United States, 251 U. S. 385, 392 (1920). It meant,quite simply, that "conviction by means of unlawfulseizures and enforced confessions . . . should findno sanction in the judgments of the courts . . . ,"Weeks v. United States, supra, at 392, and that suchevidence "shall not be used at all." SilverthorneLumber Co. v. United States, supra, at 392.

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There are in the cases of this Court some passingreferences to the Weeks rule as being one ofevidence. But the plain and unequivocal language ofWeeks--and its later paraphrase in Wolf--to theeffect that the Weeks rule is of constitutional origin,remains entirely undisturbed. In Byars v. UnitedStates, 273 U. S. 28 (1927), a unanimous Courtdeclared that "the doctrine [cannot] . . . be toleratedunder our constitutional system, that evidences ofcrime discovered by a federal officer in making asearch without lawful warrant may be used againstthe victim of the unlawful search where a timelychallenge has been interposed." At pp. 29-30(emphasis added). The Court, in Olmstead v. UnitedStates, 277 U. S. 438 (1928), in unmistakablelanguage restated the Weeks rule:

In McNabb v. United States, 318 U. S. 332 (1943),we note this statement:

"The striking outcome of the Weekscase and those which followed it wasthe sweeping declaration that theFourth Amendment, although notreferring to or limiting the use ofevidence in courts, really forbade itsintroduction if obtained by governmentofficers through a violation of theAmendment." At p. 462.

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Significantly, in McNabb, the Court did then pass onto formulate a rule of evidence, saying, "[i]n the viewwe take of the case, however, it becomesunnecessary to reach the Constitutional issue, [for]. . . [t]he principles governing the admissibility ofevidence in federal criminal trials have not beenrestricted . . . to those derived solely from theConstitution." At pp. 340-341.

II

In 1949, 35 years after Weeks was announced, thisCourt, in Wolf v. Colorado, supra, again for the firsttime, [Footnote 6] discussed the effect of the FourthAmendment upon the States through the operationof the Due Process Clause of the FourteenthAmendment. It said:

"[A] conviction in the federal courts,the foundation of which is evidenceobtained in disregard of libertiesdeemed fundamental by theConstitution, cannot stand. Boyd v.United States . . . Weeks v. UnitedStates. . . . And this Court has, onConstitutional grounds, set asideconvictions, both in the federal andstate courts, which were based uponconfessions 'secured by protractedand repeated questioning of ignorantand untutored persons, in whoseminds the power of officers was greatlymag-

nified' . . . or 'who have beenunlawfully held incommunicadowithout advice of friends or counsel.'. . ." At pp. 339-340.

"[W]e have no hesitation in saying that,were a State affirmatively to sanction

Nevertheless, after declaring that the "security ofone's privacy against arbitrary intrusion by thepolice" is "implicit in the concept of ordered liberty'and, as such, enforceable against the States throughthe Due Process Clause," cf. Palko v. Connecticut,302 U. S. 319 (1937), and announcing that it "stoutlyadhere[d]" to the Weeks decision, the Court decidedthat the Weeks exclusionary rule would not then beimposed upon the States as "an essential ingredientof the right." 338 U.S. at 27-29. The Court's reasonsfor not considering essential to the

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right to privacy, as a curb imposed upon the Statesby the Due Process Clause, that which decadesbefore had been posited as part and parcel of theFourth Amendment's limitation upon federalencroachment of individual privacy, were bottomedon factual considerations.

While they are not basically relevant to a decisionthat the exclusionary rule is an essential ingredientof the Fourth Amendment as the right it embodies isvouchsafed against the States by the Due ProcessClause, we will consider the current validity of thefactual grounds upon which Wolf was based.

The Court in Wolf first stated that "[t]he contrarietyof views of the States" on the adoption of theexclusionary rule of Weeks was "particularlyimpressive" (At pp. 29); and, in this connection, thatit could not "brush aside the experience of Stateswhich deem the incidence of such conduct by thepolice too slight to call for a deterrent remedy . . . byoverriding the [States'] relevant rules of evidence."At pp. 31-32. While, in 1949, prior to the Wolf case,

such police incursion into privacy, itwould run counter to the guaranty ofthe Fourteenth Amendment." At pp.28.

almost two-thirds of the States were opposed to theuse of the exclusionary rule, now, despite the Wolfcase, more than half of those since passing upon it,by their own legislative or judicial decision, havewholly or partly adopted or adhered to the Weeksrule. See Elkins v. United States, 364 U. S. 206,Appendix, pp. 224-232 (1960). Significantly, amongthose now following the rule is California, which,according to its highest court, was "compelled toreach that conclusion because other remedies havecompletely failed to secure compliance with theconstitutional provisions. . . ." People v. Cahan, 44Cal.2d 434, 445, 282 P.2d 905, 911 (1955). Inconnection with this California case, we note thatthe second basis elaborated in Wolf in support of itsfailure to enforce the exclusionary doctrine againstthe States was that "other means of protection"have been afforded "the

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right to privacy." [Footnote 7] 338 U.S. at 30. Theexperience of California that such other remedieshave been worthless and futile is buttressed by theexperience of other States. The obvious futility ofrelegating the Fourth Amendment to the protectionof other remedies has, moreover, been

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recognized by this Court since Wolf. See Irvine v.California, 347 U. S. 128, 137 (1954).

Likewise, time has set its face against what Wolfcalled the "weighty testimony" of People v. Defore,242 N.Y. 13, 150 N.E. 585 (1926). There, Justice(then Judge) Cardozo, rejecting adoption of theWeeks exclusionary rule in New York, had said that "[t]he Federal rule as it stands is either too strict ortoo lax." 242 N.Y. at 22, 150 N.E. at 588. However,the force of that reasoning has been largely vitiatedby later decisions of this Court. These include the

recent discarding of the "silver platter" doctrinewhich allowed federal judicial use of evidence seizedin violation of the Constitution by state agents,Elkins v. United States, supra; the relaxation of theformerly strict requirements as to standing tochallenge the use of evidence thus seized, so thatnow the procedure of exclusion, "ultimately referableto constitutional safeguards," is available to anyoneeven "legitimately on [the] premises" unlawfullysearched, Jones v. United States, 362 U. S. 257,266-267 (1960); and, finally, the formulation of amethod to prevent state use of evidenceunconstitutionally seized by federal agents, Rea v.United States, 350 U. S. 214 (1956). Because therecan be no fixed formula, we are admittedly met with"recurring questions of the reasonableness ofsearches," but less is not to be expected whendealing with a Constitution, and, at any rate, "[r]easonableness is in the first instance for the [trialcourt] . . . to determine." United States v.Rabinowitz, 339 U. S. 56, 63 (1950).

It therefore plainly appears that the factualconsiderations supporting the failure of the WolfCourt to include the Weeks exclusionary rule when itrecognized the enforceability of the right to privacyagainst the States in 1949, while not basicallyrelevant to the constitutional consideration, couldnot, in any analysis, now be deemed controlling.

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III

Some five years after Wolf, in answer to a plea madehere Term after Term that we overturn its doctrine onapplicability of the Weeks exclusionary rule, thisCourt indicated that such should not be done untilthe States had "adequate opportunity to adopt orreject the [Weeks] rule." Irvine v. California, supra, at134. There again, it was said:

And only last Term, after again carefully reexaminingthe Wolf doctrine in Elkins v. United States, supra,the Court pointed out that "the controllingprinciples" as to search and seizure and the problemof admissibility "seemed clear" (At pp. 212) until theannouncement in Wolf "that the Due Process Clauseof the Fourteenth Amendment does not itself requirestate courts to adopt the exclusionary rule" of theWeeks case. At pp. 213. At the same time, the Courtpointed out, "the underlying constitutional doctrinewhich Wolf established . . . that the FederalConstitution . . . prohibits unreasonable searchesand seizures by state officers" had undermined the"foundation upon which the admissibility of state-seized evidence in a federal trial originallyrested. . . ." Ibid. The Court concluded that it wastherefore obliged to hold, although it chose thenarrower ground on which to do so, that all evidenceobtained by an unconstitutional search and seizurewas inadmissible in a federal court regardless of itssource. Today we once again examine Wolf'sconstitutional documentation of the right to privacyfree from unreasonable state intrusion, and, after itsdozen years on our books, are led by it to close theonly

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courtroom door remaining open to evidence securedby official lawlessness in flagrant abuse of that basicright, reserved to all persons as a specific guaranteeagainst that very same unlawful conduct. We holdthat all evidence obtained by searches and seizuresin violation of the Constitution is, by that sameauthority, inadmissible in a state court.

"Never until June of 1949 did thisCourt hold the basic search andseizure prohibition in any wayapplicable to the states under theFourteenth Amendment." Ibid.

IV

Since the Fourth Amendment's right of privacy hasbeen declared enforceable against the Statesthrough the Due Process Clause of the Fourteenth, itis enforceable against them by the same sanction ofexclusion as is used against the FederalGovernment. Were it otherwise, then, just as withoutthe Weeks rule the assurance against unreasonablefederal searches and seizures would be "a form ofwords," valueless and undeserving of mention in aperpetual charter of inestimable human liberties, sotoo, without that rule, the freedom from stateinvasions of privacy would be so ephemeral and soneatly severed from its conceptual nexus with thefreedom from all brutish means of coercing evidenceas not to merit this Court's high regard as a freedom"implicit in the concept of ordered liberty." At thetime that the Court held in Wolf that the Amendmentwas applicable to the States through the DueProcess Clause, the cases of this Court, as we haveseen, had steadfastly held that as to federal officersthe Fourth Amendment included the exclusion of theevidence seized in violation of its provisions. EvenWolf "stoutly adhered" to that proposition. The rightto privacy, when conceded operatively enforceableagainst the States, was not susceptible ofdestruction by avulsion of the sanction upon whichits protection and enjoyment had always beendeemed dependent under the Boyd, Weeks andSilverthorne cases. Therefore, in extending thesubstantive protections of due process to allconstitutionally unreasonable searches--state orfederal--it was

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logically and constitutionally necessary that theexclusion doctrine--an essential part of the right toprivacy--be also insisted upon as an essentialingredient of the right newly recognized by the Wolf

case. In short, the admission of the newconstitutional right by Wolf could not consistentlytolerate denial of its most important constitutionalprivilege, namely, the exclusion of the evidencewhich an accused had been forced to give byreason of the unlawful seizure. To hold otherwise isto grant the right but, in reality, to withhold itsprivilege and enjoyment. Only last year, the Courtitself recognized that the purpose of theexclusionary rule "is to deter--to compel respect forthe constitutional guaranty in the only effectivelyavailable way--by removing the incentive todisregard it." Elkins v. United States, supra, at 217.

Indeed, we are aware of no restraint, similar to thatrejected today, conditioning the enforcement of anyother basic constitutional right. The right to privacy,no less important than any other right carefully andparticularly reserved to the people, would stand inmarked contrast to all other rights declared as"basic to a free society." Wolf v. Colorado, supra, at27. This Court has not hesitated to enforce asstrictly against the States as it does against theFederal Government the rights of free speech and ofa free press, the rights to notice and to a fair, publictrial, including, as it does, the right not to beconvicted by use of a coerced confession, howeverlogically relevant it be, and without regard to itsreliability. Rogers v. Richmond, 365 U. S. 534 (1961).And nothing could be more certain than that, when acoerced confession is involved, "the relevant rules ofevidence" are overridden without regard to "theincidence of such conduct by the police," slight orfrequent. Why should not the same rule apply towhat is tantamount to coerced testimony by way ofunconstitutional seizure of goods, papers, effects,documents, etc.? We find that,

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as to the Federal Government, the Fourth and Fifth

Amendments and, as to the States, the freedomfrom unconscionable invasions of privacy and thefreedom from convictions based upon coercedconfessions do enjoy an "intimate relation"[Footnote 8] in their perpetuation of "principles ofhumanity and civil liberty [secured] . . . only afteryears of struggle," Bram v. United States, 168 U. S.532, 543-544 (1897). They express "supplementingphases of the same constitutional purpose tomaintain inviolate large areas of personal privacy."Feldman v. United States, 322 U. S. 487, 489-490(1944). The philosophy of each Amendment and ofeach freedom is complementary to, although notdependent upon, that of the other in its sphere ofinfluence--the very least that together they assure ineither sphere is that no man is to be convicted onunconstitutional evidence. Cf. Rochin v. California,342 U. S. 165, 173 (1952).

V

Moreover, our holding that the exclusionary rule isan essential part of both the Fourth and FourteenthAmendments is not only the logical dictate of priorcases, but it also makes very good sense. There isno war between the Constitution and commonsense. Presently, a federal prosecutor may make nouse of evidence illegally seized, but a State'sattorney across the street may, although hesupposedly is operating under the enforceableprohibitions of the same Amendment. Thus, theState, by admitting evidence unlawfully seized,serves to encourage disobedience to the FederalConstitution which it is bound to uphold. Moreover,as was said in Elkins, "[t]he very essence of ahealthy federalism depends upon the avoidance ofneedless conflict between

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state and federal courts." 364 U.S. at 221. Such aconflict, 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 gavefull recognition to our practice in this regard byrefusing to restrain a federal officer from testifying ina state court as to evidence unconstitutionallyseized by him in the performance of his duties. Yetthe double standard recognized until today hardlyput such a thesis into practice. In nonexclusionaryStates, federal officers, being human, were by itinvited to, and did, as our cases indicate, stepacross the street to the State's attorney with theirunconstitutionally seized evidence. Prosecution onthe basis of that evidence was then had in a statecourt in utter disregard of the enforceable FourthAmendment. If the fruits of an unconstitutionalsearch had been inadmissible in both state andfederal courts, this inducement to evasion wouldhave been sooner eliminated. There would be noneed to reconcile such cases as Rea and Schnettler,each pointing up the hazardous uncertainties of ourheretofore ambivalent approach.

Federal-state cooperation in the solution of crimeunder constitutional standards will be promoted, ifonly by recognition of their now mutual obligation torespect the same fundamental criteria in theirapproaches. "However much in a particular caseinsistence upon such rules may appear as atechnicality that inures to the benefit of a guiltyperson, the history of the criminal law proves thattolerance of shortcut methods in law enforcementimpairs its enduring effectiveness." Miller v. UnitedStates, 357 U. S. 301, 313 (1958). Denying shortcutsto only one of two cooperating law enforcementagencies tends naturally to breed legitimatesuspicion of "working arrangements" whose resultsare equally tainted. Byars v. United States, 273 U. S.28 (1927); Lustig v. United States, 338 U. S. 74(1949).

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There are those who say, as did Justice (then Judge)Cardozo, that, under our constitutional exclusionarydoctrine, "[t]he criminal is to go free because theconstable has blundered." People v. Defore, 242N.Y. at 21, 150 N.E. at 587. In some cases, this willundoubtedly be the result. [Footnote 9] But, as wassaid in Elkins, "there is another consideration--theimperative of judicial integrity." 364 U.S. at 222. Thecriminal goes free, if he must, but it is the law thatsets him free. Nothing can destroy a governmentmore quickly than its failure to observe its own laws,or worse, its disregard of the charter of its ownexistence. As Mr. Justice Brandeis, dissenting, saidin Olmstead v. United States, 277 U. S. 438, 485(1928): "Our Government is the potent, theomnipresent teacher. For good or for ill, it teachesthe whole people by its example. . . . If theGovernment becomes a lawbreaker, it breedscontempt for law; it invites every man to become alaw unto himself; it invites anarchy." Nor can it lightlybe assumed that, as a practical matter, adoption ofthe exclusionary rule fetters law enforcement. Onlylast year, this Court expressly considered thatcontention and found that "pragmatic evidence of asort" to the contrary was not wanting. Elkins v.United States, supra, at 218. The Court noted that

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"The federal courts themselves haveoperated under the exclusionary rule ofWeeks for almost half a cen-

tury; yet it has not been suggestedeither that the Federal Bureau ofInvestigation [Footnote 10] has therebybeen rendered ineffective, or that theadministration of criminal justice in thefederal courts has thereby beendisrupted. Moreover, the experience ofthe states is impressive. . . . Themovement towards the rule of

The ignoble shortcut to conviction left open to theState tends to destroy the entire system ofconstitutional restraints on which the liberties of thepeople rest. [Footnote 11] Having once recognizedthat the right to privacy embodied in the FourthAmendment is enforceable against the States, andthat the right to be secure against rude invasions ofprivacy by state officers is, therefore, constitutionalin origin, we can no longer permit that right toremain an empty promise. Because it is enforceablein the same manner and to like effect as other basicrights secured by the Due Process Clause, we canno longer permit it to be revocable at the whim ofany police officer who, in the name of lawenforcement itself, chooses to suspend itsenjoyment. Our decision, founded on reason andtruth, gives to the individual no more than that whichthe Constitution guarantees him, to the police officerno less than that to which honest law enforcement isentitled, and, to the courts, that judicial integrity sonecessary in the true administration of justice.

The judgment of the Supreme Court of Ohio isreversed, and the cause remanded for furtherproceedings not inconsistent with this opinion.

Reversed and remanded.

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MR. JUSTICE BLACK, concurring.

For nearly fifty years, since the decision of this Courtin Weeks v. United States, [Footnote 1] federalcourts have refused to permit the introduction intoevidence against an accused of his papers andeffects obtained by "unreasonable searches andseizures" in violation of the Fourth Amendment. InWolf v. Colorado, decided in 1948, however, this

exclusion has been halting, butseemingly inexorable." Id. at 218-219.

Court held that, "in a prosecution in a State court fora State crime, the Fourteenth Amendment does notforbid the admission of evidence obtained by anunreasonable search and seizure." [Footnote 2] Iconcurred in that holding on these grounds:

I am still not persuaded that the Fourth Amendment,standing alone, would be enough to bar theintroduction into evidence against an accused ofpapers and effects seized from him in violation of itscommands. For the Fourth Amendment does notitself contain any provision expressly precluding theuse of such evidence, and I am

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extremely doubtful that such a provision couldproperly be inferred from nothing more than thebasic command against unreasonable searches andseizures. Reflection on the problem, however, in thelight of cases coming before the Court since Wolf,

"For reasons stated in my dissentingopinion in Adamson v. California, 332U. S. 46, 68, I agree with theconclusion of the Court that the FourthAmendment's prohibition of'unreasonable searches and seizures'is enforceable against the states.Consequently, I should be for reversalof this case if I thought the FourthAmendment not only prohibited'unreasonable searches and seizures,'but also, of itself, barred the use ofevidence so unlawfully obtained. But Iagree with what appears to be a plainimplication of the Court's opinion thatthe federal exclusionary rule is not acommand of the Fourth Amendment,but is a judicially created rule ofevidence which Congress mightnegate." [Footnote 3]

has led me to conclude that, when the FourthAmendment's ban against unreasonable searchesand seizures is considered together with the FifthAmendment's ban against compelled self-incrimination, a constitutional basis emerges whichnot only justifies, but actually requires, theexclusionary rule.

The close interrelationship between the Fourth andFifth Amendments, as they apply to this problem,[Footnote 4] has long been recognized and, indeed,was expressly made the ground for this Court'sholding in Boyd v. United States. [Footnote 5] There,the Court fully discussed this relationship anddeclared itself "unable to perceive that the seizure ofa man's private books and papers to be used inevidence against him is substantially different fromcompelling him to be a witness against himself."[Footnote 6] It was upon this ground that Mr. JusticeRutledge largely relied in his dissenting opinion inthe Wolf case. [Footnote 7] And, although I rejectedthe argument at that time, its force has, for me atleast, become compelling with the more thoroughunderstanding of the problem brought on by recentcases. In the final analysis, it seems to me that theBoyd doctrine, though perhaps not required by theexpress language of the Constitution, strictlyconstrued, is amply justified from an historicalstandpoint, soundly based in reason,

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and entirely consistent with what I regard to be theproper approach to interpretation of our Bill ofRights--an approach well set out by Mr. JusticeBradley in the Boyd case:

"[C]onstitutional provisions for thesecurity of person and property shouldbe liberally construed. A close andliteral construction deprives them ofhalf their efficacy, and leads to gradual

The case of Rochin v. California, [Footnote 9] whichwe decided three years after the Wolf case,authenticated, I think, the soundness of Mr. JusticeBradley's and Mr. Justice Rutledge's reliance uponthe interrelationship between the Fourth and FifthAmendments as requiring the exclusion ofunconstitutionally seized evidence. In the Rochincase, three police officers, acting with neither ajudicial warrant nor probable cause, enteredRochin's home for the purpose of conducting asearch, and broke down the door to a bedroomoccupied by Rochin and his wife. Upon their entryinto the room, the officers saw Rochin pick up andswallow two small capsules. They immediatelyseized him and took him in handcuffs to a hospital,where the capsules

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were recovered by use of a stomach pump.Investigation showed that the capsules containedmorphine, and evidence of that fact was made thebasis of his conviction of a crime in a state court.

When the question of the validity of that convictionwas brought here, we were presented with analmost perfect example of the interrelationshipbetween the Fourth and Fifth Amendments. Indeed,every member of this Court who participated in thedecision of that case recognized thisinterrelationship and relied on it, to some extent atleast, as justifying reversal of Rochin's conviction.The majority, though careful not to mention the FifthAmendment's provision that "[n]o person . . . shall

depreciation of the right, as if itconsisted more in sound than insubstance. It is the duty of the courtsto be watchful for the constitutionalrights of the citizen, and against anystealthy encroachments thereon."[Footnote 8]

be compelled in any criminal case to be a witnessagainst himself," showed at least that it was notunaware that such a provision exists, stating:"Coerced confessions offend the community'ssense of fair play and decency. . . . It would be astultification of the responsibility which the course ofconstitutional history has cast upon this Court tohold that, in order to convict a man, the policecannot extract by force what is in his mind, but canextract what is in his stomach." [Footnote 10] Themethods used by the police thus were, according tothe majority, "too close to the rack and the screw topermit of constitutional differentiation," [Footnote 11]and the case was reversed on the ground that thesemethods had violated the Due Process Clause of theFourteenth Amendment in that the treatmentaccorded Rochin was of a kind that "shocks theconscience," "offend[s] a sense of justice'" and failsto "respect certain decencies of civilized conduct."[Footnote 12]

I concurred in the reversal of the Rochin case, buton the ground that the Fourteenth Amendmentmade the Fifth Amendment's provision against self-incrimination

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applicable to the States and that, given a broad,rather than a narrow, construction, that provisionbarred the introduction of this "capsule" evidencejust as much as it would have forbidden the use ofwords Rochin might have been coerced to speak.[Footnote 13] In reaching this conclusion, I cited andrelied on the Boyd case, the constitutional doctrineof which was, of course, necessary to mydisposition of the case. At that time, however, theseviews were very definitely in the minority, for onlyMR. JUSTICE DOUGLAS and I rejected the flexibleand uncertain standards of the "shock theconscience test" used in the majority opinion.

[Footnote 14]

Two years after Rochin, in Irvine v. California,[Footnote 15] we were again called upon to considerthe validity of a conviction based on evidence whichhad been obtained in a manner clearlyunconstitutional and arguably shocking to theconscience. The five opinions written by this Courtin that case demonstrate the utter confusion anduncertainty that had been brought about by the Wolfand Rochin decisions. In concurring, MR. JUSTICECLARK emphasized the unsatisfactory nature of theCourt's "shock the conscience test," saying that this"test" "makes for such uncertainty andunpredictability that it would be impossible toforetell--other than by guesswork--just how brazenthe invasion of the intimate privacies of one's homemust be in order to shock itself into the protectivearms of the Constitution. In truth, the practical resultof this ad hoc approach is simply that, when fiveJustices are sufficiently revolted by local policeaction, a conviction is overturned and a guilty manmay go free. [Footnote 16] "

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Only one thing emerged with complete clarity fromthe Irvine case--that is that seven Justices rejectedthe "shock the conscience" constitutional standardenunciated in the Wolf and Rochin cases. But eventhis did not lessen the confusion in this area of thelaw, because the continued existence of mutuallyinconsistent precedents, together with the Court'sinability to settle upon a majority opinion in the Irvinecase, left the situation at least as uncertain as it hadbeen before. [Footnote 17] Finally, today, we clearup that uncertainty. As I understand the Court'sopinion in this case, we again reject the confusing"shock the conscience" standard of the Wolf andRochin cases and, instead, set aside this stateconviction in reliance upon the precise, intelligible

and more predictable constitutional doctrineenunciated in the Boyd case. I fully agree with Mr.Justice Bradley's opinion that the two Amendmentsupon which the Boyd doctrine rests are of vitalimportance in our constitutional scheme of liberty,and that both are entitled to a liberal, rather than aniggardly, interpretation. The courts of the countryare entitled to know with as much certainty aspossible what scope they cover. The Court'sopinion, in my judgment, dissipates the doubt anduncertainty in this field of constitutional law, and Iam persuaded, for this and other reasons stated, todepart from my prior views, to accept the Boyddoctrine as controlling in this state case, and to jointhe Court's judgment and opinion, which are inaccordance with that constitutional doctrine.

MR. JUSTICE DOUGLAS, concurring.

Though I have joined the opinion of the Court, I adda few words. This criminal proceeding started with alawless search and seizure. The police entered ahome

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forcefully, and seized documents that were laterused to convict the occupant of a crime.

She lived alone with her fifteen-year-old daughter inthe second-floor flat of a duplex in Cleveland. Atabout 1:30 in the afternoon of May 23, 1957, threepolicemen arrived at this house. They rang the bell,and the appellant, appearing at her window, askedthem what they wanted. According to their latertestimony, the policemen had come to the house oninformation from "a confidential source that therewas a person hiding out in the home who waswanted for questioning in connection with a recentbombing." [Footnote 1] To the appellant's question,however, they replied only that they wanted toquestion her, and would not state the subject about

which they wanted to talk.

The appellant, who had retained an attorney inconnection with a pending civil matter, told thepolice she would call him to ask if she should letthem in. On her attorney's advice, she told them shewould let them in only when they produced a validsearch 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 oneof the policemen told him that they now had asearch warrant, but the officer refused to show it.Instead, going to the back door, the officer first triedto kick it in and, when that proved unsuccessful, hebroke the glass in the door and opened it from theinside.

The appellant, who was on the steps going up to herflat, demanded to see the search warrant, but theofficer refused to let her see it, although he waved apaper in front of her face. She grabbed it and thrustit down the front of her dress. The policemen seizedher, took the paper

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from her, and had her handcuffed to another officer.She was taken upstairs, thus bound, and into thelarger of the two bedrooms in the apartment; thereshe was forced to sit on the bed. Meanwhile, theofficers entered the house and made a completesearch of the four rooms of her flat and of thebasement of the house.

The testimony concerning the search is largelynonconflicting. The approach of the officers; theirlong wait outside the home, watching all its doors;the arrival of reinforcements armed with a paper;[Footnote 2] breaking into the house; putting theirhands on appellant and handcuffing her; numerousofficers ransacking through every room and piece of

furniture while the appellant sat, a prisoner in herown bedroom. There is direct conflict in thetestimony, however, as to where the evidence whichis the basis of this case was found. To understandthe meaning of that conflict, one must understandthat this case is based on the knowing possession[Footnote 3] of four little pamphlets, a couple ofphotographs, and a little pencil doodle--all of whichare alleged to be pornographic.

According to the police officers who participated inthe search, these articles were found, some inappellant's

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dressers and some in a suitcase found by her bed.According to appellant, most of the articles werefound in a cardboard box in the basement; one inthe suitcase beside her bed. All of this material,appellant--and a friend of hers--said were odds andends belonging to a recent boarder, a man who hadleft suddenly for New York and had been detainedthere. As the Supreme Court of Ohio read thestatute under which appellant is charged, she isguilty of the crime whichever story is true.

The Ohio Supreme Court sustained the convictioneven though it was based on the documentsobtained in the lawless search. For, in Ohio,evidence obtained by an unlawful search andseizure is admissible in a criminal prosecution, atleast where it was not taken from the "defendant'sperson by the use of brutal or offensive force againstdefendant." State v. Mapp, 170 Ohio St. 427, 166N.E.2d at 388, syllabus 2; State v. Lindway, 131Ohio St. 166, 2 N.E.2d 490. This evidence wouldhave 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 theformer decision, "The effect of the FourthAmendment is to put the courts of the United States

and Federal officials, in the exercise of their powerand authority, under limitations and restraints. . . ."Id. 391-392. It was therefore held that evidenceobtained (which in that case was documents andcorrespondence) from a home without any warrantwas not admissible in a federal prosecution.

We held in Wolf v. Colorado, 338 U. S. 25, that theFourth Amendment was applicable to the States byreason of the Due Process Clause of the FourteenthAmendment. But a majority held that theexclusionary rule of the Weeks case was notrequired of the States, that they could apply suchsanctions as they chose. That position had thenecessary votes to carry the day. But, with allrespect, it was not the voice of reason or principle.

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As stated in the Weeks case, if evidence seized inviolation of the Fourth Amendment can be usedagainst an accused, "his right to be secure againstsuch searches and seizures is of no value, and . . .might as well be stricken from the Constitution." 232U.S. at 393.

When we allowed States to give constitutionalsanction to the "shabby business" of unlawful entryinto a home (to use an expression of Mr. JusticeMurphy, Wolf v. Colorado, at 46), we did indeed robthe Fourth Amendment of much meaningful force.There are, of course, other theoretical remedies. Oneis disciplinary action within the hierarchy of thepolice system, including prosecution of the policeofficer for a crime. Yet, as Mr. Justice Murphy said inWolf v. Colorado, at 42, "Self-scrutiny is a lofty ideal,but its exaltation reaches new heights if we expect aDistrict Attorney to prosecute himself or hisassociates for well meaning violations of the searchand seizure clause during a raid the District Attorneyor his associates have ordered."

The only remaining remedy, if exclusion of theevidence is not required, is an action of trespass bythe homeowner against the offending officer. Mr.Justice Murphy showed how onerous and difficult itwould be for the citizen to maintain that action, andhow meagre the relief even if the citizen prevails.338 U.S. 42-44. The truth is that trespass actionsagainst officers who make unlawful searches andseizures are mainly illusory remedies.

Without judicial action making the exclusionary ruleapplicable to the States, Wolf v. Colorado, inpractical effect, reduced the guarantee againstunreasonable searches and seizures to "a deadletter," as Mr. Justice Rutledge said in his dissent.See 338 U.S. at 47.

Wolf v. Colorado, supra, was decided in 1949. Theimmediate result was a storm of constitutionalcontroversy which only today finds its end. I believethat this is an appropriate case in which to put anend to the asymmetry which Wolf imported into thelaw. See

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Stefanelli v. Minard, 342 U. S. 117; Rea v. UnitedStates, 350 U. S. 214; Elkins v. United States, supra;Monroe v. Pape, 365 U. S. 167. It is an appropriatecase because the facts it presents show--as wouldfew other cases--the casual arrogance of those whohave the untrammelled power to invade one's homeand to seize one's person.

It is also an appropriate case in the narrower andmore technical sense. The issues of the illegality ofthe search and the admissibility of the evidencehave been presented to the state court, and wereduly raised here in accordance with the applicableRule of Practice. [Footnote 4] The question wasraised in the notice of appeal, the jurisdictionalstatement and in appellant's brief on the merits.

[Footnote 5] It is true that argument was mostlydirected to another issue in the case, but that isoften the fact. See Rogers v. Richmond, 365 U. S.534, 535-540. Of course, an earnest advocate of aposition always believes that, had he only anadditional opportunity for argument, his side wouldwin. But, subject to the sound discretion of a court,all argument must at last come to a halt. This isespecially so as to an issue about which this Courtsaid last year that "The arguments of its antagonistsand of its proponents have been so many timesmarshalled as to require no lengthy elaborationhere." Elkins v. United States, supra, 216.

Moreover, continuance of Wolf v. Colorado in its fullvigor breeds the unseemly shopping around of thekind revealed in Wilson v. Schnettler, 365 U. S. 381.Once evidence, inadmissible in a federal court, isadmissible in

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a state court a "double standard" exists which, asthe Court points out, leads to "workingarrangements" that, undercut federal policy andreduce some aspects of law enforcement to shabbybusiness. The rule that supports that practice doesnot have the force of reason behind it.

Memorandum of MR. JUSTICE STEWART.

Agreeing fully with Part I of MR. JUSTICE HARLAN'sdissenting opinion, I express no view as to themerits of the constitutional issue which the Courttoday decides. I would, however, reverse thejudgment in this case, because I am persuaded thatthe provision of § 2905.34 of the Ohio RevisedCode, upon which the petitioner's conviction wasbased, is, in the words of MR. JUSTICE HARLAN,not "consistent with the rights of free thought andexpression assured against state action by theFourteenth Amendment."

MR. JUSTICE HARLAN, whom MR. JUSTICEFRANKFURTER 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 thatshould enter into deciding whether a past decisionof this Court should be overruled. Apart from that, Ialso believe that the Wolf rule represents sounderConstitutional doctrine than the new rule which nowreplaces it.

I

From the Court's statement of the case, one wouldgather that the central, if not controlling, issue onthis appeal is whether illegally state-seized evidenceis Constitutionally admissible in a state prosecution,an issue which would, of course, face us with theneed for reexamining Wolf. However, such is not thesituation. For, although that question was indeedraised here and below among appellant'ssubordinate points, the new and

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pivotal issue brought to the Court by this appeal iswhether § 2905.34 of the Ohio Revised Code,making criminal the mere knowing possession orcontrol of obscene material, [Footnote 1] and underwhich appellant has been convicted, is consistentwith the rights of free thought and expressionassured against state action by the FourteenthAmendment. [Footnote 2] That was the principalissue which was decided by the Ohio SupremeCourt, [Footnote 3] which was tendered byappellant's Jurisdictional Statement, [Footnote 4]and which was briefed [Footnote 5] and argued[Footnote 6] in this Court.

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In this posture of things, I think it fair to say that fivemembers of this Court have simply "reached out" tooverrule Wolf. With all respect, for the views of themajority, and recognizing that stare decisis carriesdif-

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ferent weight in Constitutional adjudication than itdoes in nonconstitutional decision, I can perceive nojustification for regarding this case as an appropriateoccasion for reexamining Wolf.

The action of the Court finds no support in the rulethat decision of Constitutional issues should beavoided wherever possible. For, in overruling Wolf,the Court, instead of passing upon the validity ofOhio's § 2905.34, has simply chosen between twoConstitutional questions. Moreover, I submit that ithas chosen the more difficult and less appropriate ofthe two questions. The Ohio statute which, asconstrued by the State Supreme Court, punishesknowing possession or control of obscene material,irrespective of the purposes of such possession orcontrol (with exceptions not here applicable)[Footnote 7] and irrespective of whether the accusedhad any reasonable opportunity to rid himself of thematerial after discovering that it was obscene,[Footnote 8] surely presents a Constitutional

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question which is both simpler and less far-reachingthan the question which the Court decides today. Itseems to me that justice might well have been donein this case without overturning a decision on whichthe administration of criminal law in many of theStates has long justifiably relied.

Since the demands of the case before us do notrequire us to reach the question of the validity ofWolf, I think this case furnishes a singularly

inappropriate occasion for reconsideration of thatdecision, if reconsideration is indeed warranted.Even the most cursory examination will reveal thatthe doctrine of the Wolf case has been of continuingimportance in the administration of state criminallaw. Indeed, certainly as regards its"nonexclusionary" aspect, Wolf did no more thanarticulate the then existing assumption among theStates that the federal cases enforcing theexclusionary rule "do not bind [the States], for theyconstrue provisions of the Federal Constitution, theFourth and Fifth Amendments, not applicable to theStates." People v. Defore, 242 N.Y. 13, 20, 150 N.E.585, 587. Though, of course, not reflecting the fullmeasure of this continuing reliance, I find that,during the last three Terms, for instance, the issue ofthe inadmissibility of illegally state-obtainedevidence appears on an average of about fifteentimes per Term just in the in forma pauperis casessummarily disposed of by us. This would indicateboth that the issue which is now being decided maywell have untoward practical ramificationsrespecting state cases long since disposed of inreliance on Wolf, and that were we determined toreexamine that doctrine, we would not lack futureopportunity.

The occasion which the Court has taken here is inthe context of a case where the question wasbriefed not at all and argued only extremelytangentially. The unwisdom of overruling Wolfwithout full-dress argu-

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ment is aggravated by the circumstance that thatdecision is a comparatively recent one (1949) towhich three members of the present majority have atone time or other expressly subscribed, one, to besure, with explicit misgivings. [Footnote 9] I wouldthink that our obligation to the States, on whom we

impose this new rule, as well as the obligation oforderly adherence to our own processes woulddemand that we seek that aid which adequatebriefing and argument lends to the determination ofan important issue. It certainly has never been apostulate of judicial power that mere altereddisposition, or subsequent membership on theCourt, is sufficient warrant for overturning adeliberately decided rule of Constitutional law.

Thus, if the Court were bent on reconsidering Wolf, Ithink that there would soon have presented itself anappropriate opportunity in which we could have hadthe benefit of full briefing and argument. In anyevent, at the very least, the present case shouldhave been set down for reargument, in view of theinadequate briefing and argument we have receivedon the Wolf point. To all intents and purpose,s theCourt's present action amounts to a summaryreversal of Wolf, without argument.

I am bound to say that what has been done is notlikely to promote respect either for the Court'sadjudicatory process or for the stability of itsdecisions. Having been unable, however, topersuade any of the majority to a differentprocedural course, I now turn to the merits of thepresent decision.

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II

Essential to the majority's argument against Wolf isthe proposition that the rule of Weeks v. UnitedStates, 232 U. S. 383, excluding in federal criminaltrials the use of evidence obtained in violation of theFourth Amendment, derives not from the"supervisory power" of this Court over the federaljudicial system, but from Constitutional requirement.This is so because no one, I suppose, wouldsuggest that this Court possesses any general

supervisory power over the state courts. Although Ientertain considerable doubt as to the soundness ofthis foundational proposition of the majority, cf. Wolfv. Colorado, 338 U.S. at 39-40 (concurring opinion), Ishall assume, for present purposes, that the Weeksrule "is of constitutional origin."

At the heart of the majority's opinion in this case isthe following syllogism: (1) the rule excluding infederal criminal trials evidence which is the productof an illegal search and seizure is "part and parcel"of the Fourth Amendment; (2) Wolf held that the"privacy" assured against federal action by theFourth Amendment is also protected against stateaction by the Fourteenth Amendment, and (3) it istherefore "logically and constitutionally necessary"that the Weeks exclusionary rule should also beenforced against the States. [Footnote 10]

This reasoning ultimately rests on the unsoundpremise that, because Wolf carried into the States,as part of "the concept of ordered liberty" embodiedin the Fourteenth Amendment, the principle of"privacy" underlying the Fourth Amendment (338U.S. at 27), it must follow that whateverconfigurations of the Fourth Amendment have beendeveloped in the particularizing federal precedentsare likewise to be deemed a part of "ordered liberty,"

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and as such are enforceable against the States. Forme, this does not follow at all.

It cannot be too much emphasized that what wasrecognized in Wolf was not that the FourthAmendment, as such, is enforceable against theStates as a facet of due process, a view of theFourteenth Amendment which, as Wolf itself pointedout (338 U.S. at 26), has long since beendiscredited, but the principle of privacy "which is atthe core of the Fourth Amendment." (Id. at 27.) It

would not be proper to expect or impose anyprecise equivalence, either as regards the scope ofthe right or the means of its implementation,between the requirements of the Fourth andFourteenth Amendments. For the Fourth, unlikewhat was said in Wolf of the Fourteenth, does notstate a general principle only; it is a particularcommand, having its setting in a preexisting legalcontext on which both interpreting decisions andenabling statutes must at least build.

Thus, even in a case which presented simply thequestion of whether a particular search and seizurewas constitutionally "unreasonable"--say in a tortaction against state officers--we would not be trueto the Fourteenth Amendment were we merely tostretch the general principle of individual privacy ona Procrustean bed of federal precedents under theFourth Amendment. But, in this instance, more thanthat is involved, for here we are reviewing not adetermination that what the state police did wasConstitutionally permissible (since the state courtquite evidently assumed that it was not), but adetermination that appellant was properly foundguilty of conduct which, for present purposes, it is tobe assumed the State could Constitutionally punish.Since there is not the slightest suggestion thatOhio's policy is "affirmatively to sanction . . . policeincursion into privacy," (338 U.S. at 28), compareMarcus v. Search Warrants, post, p. 717, what theCourt is now doing is to impose

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upon the States not only federal substantivestandards of "search and seizure", but also thebasic federal remedy for violation of thosestandards. For I think it entirely clear that the Weeksexclusionary rule is but a remedy which, bypenalizing past official misconduct, is aimed atdeterring such conduct in the future.

I would not impose upon the States this federalexclusionary remedy. The reasons given by themajority for now suddenly turning its back on Wolfseem to me notably unconvincing.

First, it is said that "the factual grounds upon whichWolf was based" have since changed, in that moreStates now follow the Weeks exclusionary rule thanwas so at the time Wolf was decided. While that istrue, a recent survey indicates that, at present, one-half of the States still adhere to the common lawnon-exclusionary rule, and one, Maryland, retainsthe rule as to felonies. Berman and Oberst,Admissibility of Evidence Obtained by anUnconstitutional Search and Seizure, 55 N.W.L.Rev.525, 532-533. But, in any case, surely all this isbeside the point, as the majority itself indeed seemsto recognize. Our concern here, as it was in Wolf, isnot with the desirability of that rule, but only with thequestion whether the States are Constitutionally freeto follow it or not as they may themselvesdetermine, and the relevance of the disparity ofviews among the States on this point lies simply inthe fact that the judgment involved is a debatableone. Moreover, the very fact on which the majorityrelies, instead of lending support to what is nowbeing done, points away from the need of replacingvoluntary state action with federal compulsion.

The preservation of a proper balance between stateand federal responsibility in the administration ofcriminal justice demands patience on the part ofthose who might like to see things move fasteramong the States in this respect. Problems ofcriminal law enforcement vary

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widely from State to State. One State, in consideringthe totality of its legal picture, may conclude that theneed for embracing the Weeks rule is pressingbecause other remedies are unavailable or

inadequate to secure compliance with thesubstantive Constitutional principle involved.Another, though equally solicitous of Constitutionalrights, may choose to pursue one purpose at a time,allowing all evidence relevant to guilt to be broughtinto a criminal trial, and dealing with Constitutionalinfractions by other means. Still another mayconsider the exclusionary rule too rough-and-readya remedy, in that it reaches only unconstitutionalintrusions which eventuate in criminal prosecution ofthe victims. Further, a State after experimenting withthe Weeks rule for a time may, because ofunsatisfactory experience with it, decide to revert toa non-exclusionary rule. And so on. From thestandpoint of Constitutional permissibility in pointinga State in one direction or another, I do not see at allwhy "time has set its face against" theconsiderations which led Mr. Justice Cardozo, thenchief judge of the New York Court of Appeals, toreject 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 ofstate power, not one of passing judgment on thewisdom of one state course or another. In my view,this Court should continue to forbear from fetteringthe States with an adamant rule which mayembarrass them in coping with their own peculiarproblems in criminal law enforcement.

Further, we are told that imposition of the Weeks ruleon the States makes "very good sense," in that it willpromote recognition by state and federal officials oftheir "mutual obligation to respect the samefundamental criteria" in their approach to lawenforcement, and will avoid "needless conflictbetween state and federal courts.'" Indeed, themajority now finds an incongruity

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in Wolf's discriminating perception between the

demands of "ordered liberty" as respects the basicright of "privacy" and the means of securing itamong the States. That perception, resting both ona sensitive regard for our federal system and asound recognition of this Court's remoteness fromparticular state problems, is, for me, the strength ofthat decision.

An approach which regards the issue as one ofachieving procedural symmetry or of servingadministrative convenience surely disfigures theboundaries of this Court's functions in relation to thestate and federal courts. Our role in promulgatingthe Weeks rule and its extensions in such cases asRea, Elkins, and Rios [Footnote 11] was quite adifferent one than it is here. There, in implementingthe Fourth Amendment, we occupied the position ofa tribunal having the ultimate responsibility fordeveloping the standards and procedures of judicialadministration within the judicial system over whichit presides. Here, we review state procedures whosemeasure is to be taken not against the specificsubstantive commands of the Fourth Amendment,but under the flexible contours of the Due ProcessClause. I do not believe that the FourteenthAmendment empowers this Court to mould stateremedies effectuating the right to freedom from"arbitrary intrusion by the police" to suit its ownnotions of how things should be done, as, forinstance, the California Supreme Court did in Peoplev. Cahan, 44 Cal.2d 434, 282 P.2d 905, withreference to procedures in the California courts, oras this Court did in Weeks for the lower federalcourts.

A state conviction comes to us as the completeproduct of a sovereign judicial system. Typically, acase will have been tried in a trial court, tested insome final appel-

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late court, and will go no further. In thecomparatively rare instance when a conviction isreviewed by us on due process grounds, we dealthen with a finished product in the creation of whichwe are allowed no hand, and our task, far from beingone of over-all supervision, is, speaking generally,restricted to a determination of whether theprosecution was constitutionally fair. The specifics oftrial procedure, which in every mature legal systemwill vary greatly in detail, are within the solecompetence of the States. I do not see how it canbe said that a trial becomes unfair simply because aState determines that evidence may be consideredby the trier of fact, regardless of how it wasobtained, if it is relevant to the one issue with whichthe trial is concerned, the guilt or innocence of theaccused. Of course, a court may use its proceduresas an incidental means of pursuing other ends thanthe correct resolution of the controversies before it.Such indeed is the Weeks rule, but if a State doesnot choose to use its courts in this way, I do notbelieve that this Court is empowered to impose thismuch-debated procedure on local courts, howeverefficacious we may consider the Weeks rule to be asa means of securing Constitutional rights.

Finally, it is said that the overruling of Wolf issupported by the established doctrine that theadmission in evidence of an involuntary confessionrenders a state conviction constitutionally invalid.Since such a confession may often be entirelyreliable, and therefore of the greatest relevance tothe issue of the trial, the argument continues, thisdoctrine is ample warrant in precedent that the wayevidence was obtained, and not just its relevance, isconstitutionally significant to the fairness of a trial. Ibelieve this analogy is not a true one. The "coercedconfession" rule is certainly not a rule that anyillegally obtained statements may not be used inevidence. I would suppose that a statement which isprocured during

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a period of illegal detention, McNabb v. UnitedStates, 318 U. S. 332, is, as much as unlawfullyseized evidence, illegally obtained, but this Courthas consistently refused to reverse state convictionsresting on the use of such statements. Indeed, itwould seem the Court laid at rest the very argumentnow made by the majority when, in Lisenba v.California, 314 U. S. 219, a state-coercedconfession case, it said (at 235):

The point, then, must be that, in requiring exclusionof an involuntary statement of an accused, we areconcerned not with an appropriate remedy for whatthe police have done, but with something which isregarded as going to the heart of our concepts offairness in judicial procedure. The operativeassumption of our procedural system is that "Ours isthe accusatorial, as opposed to the inquisitorialsystem. Such has been the characteristic of Anglo-American criminal justice since it freed itself frompractices borrowed by the Star Chamber from the

"It may be assumed [that the]treatment of the petitioner [by thepolice] . . . deprived him of his libertywithout due process, and that thepetitioner would have been affordedpreventive relief if he could havegained access to a court to seek it."

"But illegal acts, as such, committed inthe course of obtaining a confession. . . do not furnish an answer to theconstitutional question we mustdecide. . . . The gravamen of hiscomplaint is the unfairness of the useof his confessions, and what occurredin their procurement is relevant only asit bears on that issue." (Emphasissupplied.)

Continent whereby the accused was interrogated insecret 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 accusedleading to a confession, unlike an unconstitutionalviolation of privacy, do not, apart

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from the use of the confession at trial, necessarilyinvolve independent Constitutional violations. Whatis crucial is that the trial defense to which anaccused is entitled should not be rendered an emptyformality by reason of statements wrung from him,for then "a prisoner . . . [has been] made thedeluded instrument of his own conviction." 2Hawkins, Pleas of the Crown (8th ed., 1824), c. 46, §34. That this is a procedural right, and that itsviolation occurs at the time his improperly obtainedstatement is admitted at trial, is manifest. Forwithout this right, all the careful safeguards erectedaround the giving of testimony, whether by anaccused or any other witness, would become emptyformalities in a procedure where the mostcompelling possible evidence of guilt, a confession,would have already been obtained at theunsupervised pleasure of the police.

This, and not the disciplining of the police, as withillegally seized evidence, is surely the true basis forexcluding a statement of the accused which wasunconstitutionally obtained. In sum, I think thecoerced confession analogy works strongly againstwhat the Court does today.

In conclusion, it should be noted that the majorityopinion in this case is, in fact, an opinion only for thejudgment overruling Wolf, and not for the basicrationale by which four members of the majorityhave reached that result. For my Brother BLACK isunwilling to subscribe to their view that the Weeksexclusionary rule derives from the Fourth

Amendment itself (see ante, p. 661), but joins themajority opinion on the premise that its end resultcan be achieved by bringing the Fifth Amendment tothe aid of the Fourth (see ante pp. 662-665).[Footnote 12] On that score I need only say thatwhatever the validity of

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the "Fourth-Fifth Amendment" correlation which theBoyd case (116 U.S. 616) found, see 8 Wigmore,Evidence (3d ed.1940), § 2184, we have only veryrecently again reiterated the long-establisheddoctrine of this Court that the Fifth Amendmentprivilege against self-incrimination is not applicableto the States. See Cohen v. Hurley, 366 U. S. 117.

I regret that I find so unwise in principle and soinexpedient in policy a decision motivated by thehigh purpose of increasing respect for Constitutionalrights. But, in the last analysis, I think this Court canincrease respect for the Constitution only if it rigidlyrespects the limitations which the Constitutionplaces upon it, and respects as well the principlesinherent in its own processes. In the present case, Ithink we exceed both, and that our voice becomesonly a voice of power, not of reason.

Footnotes

[Footnote 1]

The statute provides in pertinent part that

"No person shall knowingly . . . have in hispossession or under his control an obscene, lewd,or lascivious book [or] . . . picture. . . ."

"Whoever violates this section shall be fined not lessthan two hundred nor more than two thousanddollars or imprisoned not less than one nor morethan seven years, or both."

[Footnote 2]

A police officer testified that "we did pry the screendoor to gain entrance"; the attorney on the scenetestified that a policeman "tried . . . to kick in thedoor" and then "broke the glass in the door andsomebody reached in and opened the door and letthem in"; the appellant testified that "[t]he back doorwas broken."

[Footnote 3]

Other issues have been raised on this appeal but, inthe view we have taken of the case, they need notbe decided. Although appellant chose to urge whatmay have appeared to be the surer ground forfavorable disposition, and did not insist that Wolf beoverruled, the amicus curiae, who was alsopermitted to participate in the oral argument, didurge the Court to overrule Wolf.

[Footnote 4]

"The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall not beviolated, and no Warrants shall issue, but uponprobable cause, supported by Oath or affirmation,and particularly describing the place to be searched,and the persons or things to be seized."

[Footnote 5]

The close connection between the concepts laterembodied in these two Amendments had beennoted at least as early as 1765 by Lord Camden, onwhose opinion in Entick v. Carrington, 19 Howell'sState Trials 1029, the Boyd court drew heavily. LordCamden had noted, at 1073:

"It is very certain that the law obligeth no man toaccuse himself, because the necessary means ofcompelling 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 isdisallowed upon the same principle. There too, theinnocent would be confounded with the guilty."

[Footnote 6]

See, however, National Safe Deposit Co. v. Stead,232 U. S. 58 (1914), and Adams v. New York, 192 U.S. 585 (1904).

[Footnote 7]

Less than half of the States have any criminalprovisions relating directly to unreasonable searchesand seizures. The punitive sanctions of the 23 Statesattempting to control such invasions of the right ofprivacy may be classified as follows:

Criminal Liability of Affiant for Malicious Procurementof 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; IowaCode 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.CodeCrim.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 CodeAnn., 1953, 77-54-21.

Criminal Liability of Magistrate Issuing WarrantWithout Supporting Affidavit.--N.C.Gen.Stat., 1953,§ 15-27; Va.Code Ann., 1960 Replacement Volume,§ 19.1-89.

Criminal Liability of Officer Willfully ExceedingAuthority 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 InvalidWarrant 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.CodesAnn., 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.CodeAnn., 1960 Replacement Volume, § 19.1-88;Wash.Rev.Code § 10.79.040, 10.79.045.

[Footnote 8]

But compare Waley v. Johnston, 316 U. S. 101, 104,and Chambers v. Florida, 309 U. S. 227, 236, withWeeks v. United States, 232 U. S. 383, and Wolf v.Colorado, 338 U. S. 25.

[Footnote 9]

As is always the case, however, state proceduralrequirements governing assertion and pursuance ofdirect and collateral constitutional challenges tocriminal prosecutions must be respected. We note,moreover, that the class of state convictionspossibly affected by this decision is of relativelynarrow 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 thosecases, the same contention was urged and laterproved unfounded. In any case, further delay inreaching the present result could have no effectother than to compound the difficulties.

[Footnote 10]

See the remarks of Mr. Hoover, Director of theFederal Bureau of Investigation, FBI LawEnforcement Bulletin, September, 1952, pp. 1-2,quoted in Elkins v. United States, 364 U. S. 206,218-219, note 8.

[Footnote 11]

Cf. Marcus v. Search Warrant, post, p. 717.

[Footnote 1]

232 U.S. 383, decided in 1914.

[Footnote 2]

338 U.S. 25, 33.

[Footnote 3]

Id. at 39-40.

[Footnote 4]

The interrelationship between the Fourth and theFifth Amendments in this area does not, of course,justify a narrowing in the interpretation of either ofthese Amendments with respect to areas in whichthey operate separately. See Feldman v. UnitedStates, 322 U. S. 487, 502-503 (dissenting opinion);Frank v. Maryland, 359 U. S. 360, 374-384(dissenting opinion).

[Footnote 5]

116 U.S. 616.

[Footnote 6]

Id. at 633.

[Footnote 7]

338 U.S. at 47-48.

[Footnote 8]

116 U.S. at 635. As the Court points out, Mr. JusticeBradley's approach to interpretation of the Bill ofRights stemmed directly from the spirit in which thatgreat charter of liberty was offered for adoption onthe floor of the House of Representatives by itsframer, James Madison:

"If they [the first ten Amendments] are incorporatedinto the Constitution, independent tribunals ofjustice will consider themselves in a peculiar mannerthe guardians of those rights; they will be animpenetrable bulwark against every assumption ofpower in the Legislative or Executive; they will benaturally led to resist every encroachment uponrights expressly stipulated for in the Constitution bythe declaration of rights."

I Annals of Congress 439 (1789).

[Footnote 9]

342 U.S. 165.

[Footnote 10]

Id. at 173.

[Footnote 11]

Id. at 172.

[Footnote 12]

Id. at 172, 173

[Footnote 13]

Id. at 174-177

[Footnote 14]

For the concurring opinion of MR. JUSTICEDOUGLAS see id. at 177-179.

[Footnote 15]

347 U.S. 128.

[Footnote 16]

Id. at 138.

[Footnote 17]

See also United States v. Rabinowitz, 339 U. S. 56,66-68 (dissenting opinion).

[Footnote 1]

This "confidential source" told the police, in thesame breath, that "there was a large amount ofpolicy paraphernalia being hidden in the home."

[Footnote 2]

The purported warrant has disappeared from thecase. The State made no attempt to prove itsexistence, issuance or contents, either at the trial oron the hearing of a preliminary motion to suppress.The Supreme Court of Ohio said:

"There is, in the record, considerable doubt as towhether there ever was any warrant for the search ofdefendant's home. . . . Admittedly . . . there was nowarrant authorizing a search . . . for any 'lewd, orlascivious book . . . print, [or] picture.'"

170 Ohio St. 427, 430, 166 N.E.2d 387, 389.(Emphasis added.)

[Footnote 3]

Ohio Rev.Code, § 2905.34:

"No person shall knowingly . . . have in hispossession or under his control an obscene, lewd,or lascivious book, magazine, pamphlet, paper,writing, advertisement, circular, print, picture . . . ordrawing . . . of an indecent or immoral nature. . . .

Whoever violates this section shall be fined not lessthan two hundred nor more than two thousanddollars or imprisoned not less than one nor morethan seven years, or both."

[Footnote 4]

"The notice of appeal . . . shall set forth thequestions presented by the appeal. . . . Only thequestions set forth in the notice of appeal or fairlycomprised therein will be considered by the court."

Rule 10(2)(c), Rules of the Supreme Court of theUnited States.

[Footnote 5]

"Did the conduct of the police in procuring thebooks, papers and pictures placed in evidence bythe Prosecution violate Amendment IV, AmendmentV, and Amendment XIV Section 1 of the UnitedStates Constitution . . . ?"

[Footnote 1]

The material parts of that law are quoted in note 1 ofthe Court's opinion Ante, p. 643.

[Footnote 2]

In its note 3 ante, p. 646, the Court, it seems to me,has turned upside down the relative importance ofappellant's reliance on the various points made byhim on this appeal.

[Footnote 3]

See 170 Ohio St. 427, 166 N.E.2d 387. Because ofthe unusual provision of the Ohio Constitutionrequiring "the concurrence of at least all but one ofthe judges" of the Ohio Supreme Court before astate law is held unconstitutional (except in the caseof affirmance of a holding of unconstitutionality bythe Ohio Court of Appeals), Ohio Const., Art. IV, § 2,

the State Supreme Court was compelled to upholdthe constitutionality of § 2905.34 despite the factthat four of its seven judges thought the statuteoffensive to the Fourteenth Amendment.

[Footnote 4]

Respecting the "substantiality" of the federalquestions tendered by this appeal, appellant'sJurisdictional Statement contained the following:

"The Federal questions raised by this appeal aresubstantial for the following reasons: "

"The Ohio Statute under which the defendant wasconvicted violates one's sacred right to own andhold property, which has been held inviolate by theFederal Constitution. The right of the individual"

"to read, to believe or disbelieve, and to thinkwithout governmental supervision is one of our basicliberties, but to dictate to the mature adult whatbooks he may have in his own private library seemsto be a clear infringement of the constitutional rightsof the individual"

"(Justice Herbert's dissenting Opinion, Appendix'A'). Many convictions have followed that of thedefendant in the State Courts of Ohio based uponthis very same statute. Unless this Honorable Courthears this matter and determines once and for allthat the Statute is unconstitutional as defendantcontends, there will be many such appeals. WhenSections 2905.34, 2905.37 and 3767.01 of the OhioRevised Code [the latter two Sections providingexceptions to the coverage of § 2905.34 and relatedprovisions of Ohio's obscenity statutes] are readtogether, . . . they obviously contravene the Federaland State constitutional provisions; by beingconvicted under the Statute involved herein, and inthe 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 penalinstitution for alleged violation of thisunconstitutional section of the Ohio Revised Codedeprives the defendant of her right to liberty and thepursuit of happiness, contrary to the Federal andState constitutional provisions, for circumstanceswhich she herself did not put in motion, and is acruel and unusual punishment inflicted upon hercontrary to the State and Federal Constitutions."

[Footnote 5]

The appellant's brief did not urge the overruling ofWolf. Indeed, it did not even cite the case. The briefof the appellee merely relied on Wolf in support ofthe State's contention that appellant's convictionwas not vitiated by the admission in evidence of thefruits of the alleged unlawful search and seizure bythe police. The brief of the American and Ohio CivilLiberties Unions, as amici, did, in one shortconcluding paragraph of its argument, "request" theCourt to reexamine and overrule Wolf, but withoutargumentation. I quote in full this part of their brief:

"This case presents the issue of whether evidenceobtained in an illegal search and seizure canconstitutionally be used in a State criminalproceeding. We are aware of the view that this Courthas taken on this issue in Wolf v. Colorado, 338 U. S.25. It is our purpose by this paragraph torespectfully request that this Court reexamine thisissue and conclude that the ordered liberty conceptguaranteed to persons by the due process clause ofthe Fourteenth Amendment necessarily requires thatevidence illegally obtained in violation thereof, notbe admissible in state criminal proceedings."

[Footnote 6]

Counsel for appellant on oral argument, as in hisbrief, did not urge that Wolf be overruled. Indeed,when pressed by questioning from the bench

whether he was not, in fact, urging us to overruleWolf, counsel expressly disavowed any suchpurpose.

[Footnote 7]

"2905.37 LEGITIMATE PUBLICATIONS NOTOBSCENE."

"Sections 2905.33 to 2905.36, inclusive, of theRevised Code do not affect teaching in regularlychartered medical colleges, the publication ofstandard medical books, or regular practitioners ofmedicine or druggists in their legitimate business,nor do they affect the publication and distribution ofbona fide works of art. No articles specified insections 2905.33, 2905.34, and 2905.36 of theRevised Code shall be considered a work of artunless such article is made, published, anddistributed by a bona fide association of artists or anassociation for the advancement of art whosedemonstrated purpose does not contravenesections 2905.06 to 2905.44, inclusive, of theRevised Code, and which is not organized forprofit."

" 3767.01(c)"

"This section and sections 2905.34, . . . 2905.37 . . .of the Revised Code shall not affect . . . anynewspaper, magazine, or other publication enteredas second class matter by the post officedepartment."

[Footnote 8]

The Ohio Supreme Court, in its construction of §2905.34, controlling upon us here, refused to importinto it any other exceptions than those expresslyprovided by the statute. See note 7, supra. Instead,it held that "If anyone looks at a book and finds itlewd, he is forthwith, under this legislation,guilty. . . ."

[Footnote 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. JusticeJackson, writing for the majority, said (At pp. 134):"We think that the Wolf decision should not beoverruled, for the reasons so persuasively statedtherein." Compare Schwartz v. Texas, 344 U. S. 199,and Stefanelli v. Minard, 342 U. S. 117, in which theWolf case was discussed and in no waydisapproved. And see Pugach v. Dollinger, 365 U. S.458, which relied on Schwartz.

[Footnote 10]

Actually, only four members of the majority supportthis reasoning. See pp. 685-686, infra.

[Footnote 11]

Rea v. United States, 350 U. S. 214; Elkins v. UnitedStates, 364 U. S. 206; Rios v. United States, 364 U.S. 253.

[Footnote 12]

My Brother STEWART concurs in the Court'sjudgment on grounds which have nothing to do withWolf.

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