Petitioner was convicted on sixteen counts of an indictment1 charging the unlawful possession, concealment and alteration of certain Notice of Classification Cards and Registration Certificates in violation of § 11 of the Selective Raining and Service Act of 1940,2 and of § 48 of the Criminal Code.3 Prior to the trial, petitioner moved to suppress the evidence, which served as the basis for the conviction, on the grounds that it had been obtained by means of an unreasonable search and seizure contrary to the provisions of the Fourth Amendment4 and that to permit the introduction of that evidence would be to violate the self-incrimination clause of the Fifth Amendment.5 The motion to suppress was denied, and petitioner's numerous objections to the evidence at the trial were overruled. The Circuit Court of Appeals affirmed the conviction. 10 Cir., 151 F.2d 837. Certiorari was granted because of the importance of the questio § presented. 66 S.Ct. 1360.

Two valid warrants of arrest were issued. One charged that petitioner and one Moffett had violated the Mail Fraud Statute6 by causing a letter addressed to the Guaranty Trust Company of New York to be placed in the mails for the purpose of cashing a forged check for $25,000 drawn on the Mudge Oil Company in pursuance of a scheme to defraud. The second warrant charged that petitioner and Moffett, with intent to defraud certain banks and the Mudge Oil Company, had caused a $25,000 forged check to be transported in interstate commerce, in violation of § 3 of the National Stolen Property Act.7

Five agents of the Federal Bureau of Investigation, acting under the authority of the two warrants, went to the apartment of petitioner in Oklahoma City and there arrested him. The apartment consisted of a living room, bedroom, bathroom and kitchen. Following the arrest, which took place in the living room, petitioner was handcuffed and a search of the entire apartment was undertaken. The agents stated that the object of the search was to find two $10,000 canceled checks of the Mudge Oil Company which had been stolen from that company's office and which were thought to have been used in effecting the forgery. There was evidence connecting petitioner with that theft. In addition, the search was said to be for the purpose of locating 'any means that might be used to commit these wo crimes, such as burglary tools, pens, or anything that could be used in a confidence game of this type.'8

One agent was assigned to each room of the apartment and, over petitioner's protest, a careful and thorough search proceeded for approximately five hours. As the search neared its end, one of the agents discovered in a bedroom bureau drawer a sealed envelope marked 'George Harris, personal papers.' The envelope was torn open and on the inside a smaller envelope was found containing eight Notice of Classification cards and 11 Registration Certificates bearing the stamp of Local Board No. 7 of Oklahoma County. It was this evidence upon which the conviction in the District Court was based and against which the motion to suppress was directed. It is conceded that the evidence is in no way related to the crimes for which petitioner was initially arrested and that the search which led to its discovery was not conducted under the authority of a search warrant.9

In denying the motion to suppress the District Court wrote no opinion. The Circuit Court of Appeals affirmed the conviction, finding that the search was carried on in good faith by the federal agents for the purposes expressed, that it was not a general exploratory search for merely evidentiary materials, and that the search and seizure were a reasonable incident to petitioner's arrest.10

If it is true, as petitioner contends, that the draft cards were seized in violation of petitioner's rights under the Fourth Amendment, the conviction based upon evidence so obtained cannot be sustained. Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177; Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Segurola v. United States, 1927, 275 U.S. 106, 48 S.Ct. 77, 72 L.Ed. 186. This Court has consistently asserted that the rights of privacy and personal security protected by the Fourth Amendment '* * * are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen * * *'. Gouled v. United States, 1921, 255 U.S. 298, 304, 41 S.Ct. 261, 263, 65 L.Ed. 647.

This Court has also pointed out that it is only unreasonable searches and seizures which come within the constitutional interdict. The test of reasonableness cannot be stated in rigid and absolute terms. 'Each case is to be decided on its own facts and circumstances.' Go-Bart Importing Company v. United States, 1931, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374.

The Fourth Amendment has never been held to require that every valid search and seizure be effected under the authority of a search warrant. Search and seizure incident to lawful arrest is a practice of ancient origin11 and has long been an integral part of the law-enforcement procedures of the United States12 and of the individual states.13

The opinions of this Court have clearly recognized that the search incident to arrest may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate control. Thus in Agnello v. United States, supra, 269 U.S. at page 30, 46 S.Ct. at page 5, 70 L.Ed. 145, it was said: 'The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things of effect an escape from custody is not to be doubted.'14 It is equally clear that a search incident to arrest, which is otherwise reasonable, is not automatically rendered invalid by the fact that a dwelling place, as contrasted to a business premises, is subjected to search.15

Nor can support be found for the suggestion that the search could not validly extend beyond the room in which petitioner was arrested.16 Petitioner was in exclusive possession of a four room apartment. His control extended quite as much to the bedroom in which the draft cards were found as to the living room in which he was arrested. The canceled checks and other instrumentalities of the crimes charged in the warrants could easily have been concealed in any of the four rooms of the apartment. Other situations may arise in which the nature and size of the object sought or the lack of effective control over the premises on the part of the persons arrested may require that the searches be less extensive. But the area which reasonably may be subjected to search is not to be determined by the fortuitous circumstance that the arrest took place in the living room as contrasted to some other room of the apartment.

Similar considerations are applicable in evaluating petitioner's contention that the search was, in any even , too intensive. Here again we must look to the particular circumstances of the particular case. As was observed by the Circuit Court of Appeals (151 F.2d 837, 840): 'It is not likely that the checks would be visibly accessible. By their very nature they would have been kept in some secluded spot * * *.' The same meticulous investigation which would be appropriate in a search for two small canceled checks could not be considered reasonable where agents are seeking a stolen automobile or an illegal still. We do not believe that the search in this case went beyond that which the situation reasonably demanded.

This is not a case in which law enforcement officials have invaded a private dwelling without authority and seized evidence of crime. Amos v. United States, 1921, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Byars v. United States, 1927, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Nueslein v. District of Columbia, 1940, 73 App.D.C. 85, 115 F.2d 690. Here the agents entered the apartment under the authority of lawful warrants of arrest. Neither was the entry tortious nor was the arrest which followed in any sense illegal.

Nor is this a case in which law enforcement officers have entered premises ostensibly for the purpose of making an arrest but in reality for the purpose of conducting a general exploratory search for merely evidentiary materials tending to connect the accused with some crime. Go-Bart Company v. United States, supra; Lefkowitz v. United States, supra. In the present case the agents were in possession of facts indicating petitioner's probable guilt of the crimes for which the warrants of arrest were issued. The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the Mudge Oil Company. The Circuit Court of Appeals found and the District Court acted on the assumption that the agents conducted their search in good faith for the purpose of discovering the objects specified. That determination is supported by the record. The two canceled checks were stolen from the offices of the Mudge Oil Company. There was evidence connecting petitioner with that theft. The search which followed the arrest was appropriate for the discovery of such objects. Nothing in the agents' conduct was inconsistent with their declared purpose.

Furthermore, the objects sought for and those actually discovered were properly subject to seizure. This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime.17 Clearly the checks and other means and instrumentalities of the crimes charged in the warrants toward which the search was directed as well as the draft cards which were in fact seized fall within that class of objects properly subject to seizure. Certainly this is not a case of search for or seizure of an individual's private papers, nor does it involve a prosecution based upon the expression of political or religious views in such papers.18

Nor is it a significant consideration that the draft cards which were seized were not related to the crimes for which petitioner was arrested. Here during the course of a valid search the agents came upon property of the United States in the illegal custody of the petitioner. It was property to which the Government was entitled to possession.19 In keeping the draft cards in his custody petitioner was guilty of a serious and continuing offense against the laws of the United States. A crime was thus being committed in the very presence of the agents conducting the search. Nothing in the decisions of this Court gives support to the suggestion that under such circumstances the law-enforcement officials must impotently stand aside and refrain from seizing such contraband material. If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated.20

The dangers to fundamental personal rights and interests resulting from excesses of law-enforcement officials committed during the course of criminal investigations are not illusory. This Court has always been alert to protect against such abuse. But we should not permit our knowledge that abuses sometimes occur to give sinister coloration to procedures which are basically reasonable. We conclude that in this case the evidence which formed the basis of petitioner's conviction was obtained without violation of petitioner's rights under the Constitution.

Affirmed.

Mr. Justice FRANKFURTER, with whom Mr. Justice MURPHY and Mr. Justice RUTLEDGE concur, dissenting.

Because I deem the implications of the Court's decision to have serious threats to basic liberties, I consider it important to underscore my concern over the outcome of this case. In Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, the Court narrowed the protection of the Fourth Amendment1 by extending the conception of 'public records' for purpose of search without warrant.2 The Court now goes far beyond prior decisions in another direction—it permits rummaging throughout a house without a search warrant on the ostensible ground of looking for the instruments of a crime for which an arrest, but only an arrest, has been authorized. If only the fate of the Davises and the Harrises were involved, one might be brutally indifferent to the ways by which they get their deserts. But it is precisely because the appeal to the Fourth Amendment is so often made by dubious characters that its infringements call for alert and strenuous resistance. Freedom of speech, of the press, of religion, easily summon powerful support against encroachment. The prohibition against unreasonable search and seizure is normally invoked by those a cused of crime, and criminals have few friends. The implications of such encroachment, however, reach far beyond the thief or the blackmarketeer. I cannot give legal sanction to what was done in this case without accepting the implications of such a decision for the future, implications which portend serious threats against precious aspects of our traditional freedom.

If I begin with some general observations, it is not because I am unmindful of Mr. Justice Holmes' caution that 'General propositions do not decide concrete cases.' Lochner v. State of New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937, 3 Ann.Cas. 1133. Whether they do or not often depends on the strength of the conviction with which such 'general propositions' are held. A principle may be accepted 'in principle,' but the impact of an immediate situation may lead to deviation from the principle. Or, while accepted 'in principle,' a competing principle may seem more important. Both these considerations have doubtless influenced the application of the search and seizure provisions of the Bill of Rights. Thus, one's views regarding circumstances like those here presented ultimately depend upon one's understanding of the history and the function of the Fourth Amendment. A decision may turn on whether one gives that Amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of nuisance, a serious impediment in the war against crime.

The provenance of the Fourth Amendment bears on its scope. It will be recalled that James Otis made his epochal argument against general warrants in 1761.3 Otis' defense of privacy was enshrined in the Massachusetts Constitution of 1780 in the following terms:

'XIV. Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possession. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspecte persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.'

In the meantime, Virginia, in her first Constitution (1776), incorporated a provision on the subject narrower in scope:

'Sec. 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.'

When Madison came to deal with safeguards against searches and seizures in the United States Constitution, he did not draw on the Virginia model but based his proposal on the Massachusetts form. This is clear proof that Congress meant to give wide, and not limited, scope to this protection against police intrusion.

Historically we are dealing with a provision of the Constitution which sought to guard against an abuse that more than any one single factor gave rise to American independence. John Adams surely is a competent witness on the causes of the American Revolution. And he it was who said of Otis' argument against search by the police, not unlike the one before us: 'American independence was then and there born.' 10 Adams, Works 247. That which lay behind immunity from police intrusion without a search warrant was expressed by Mr. Justice Brandeis when he said that the makers of our Constitution 'conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.'

To be sure, that was said by him in a dissenting opinion in which he, with Mr. Justice Holmes, Mr. Justice Butler and Mr. Justice Stone, applied the prohibition of the Fourth Amendment to wiretapping without statutory authority. Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944, 66 A.L.R. 376. But with only an occasional deviation, a series of decisions of this Court has construed the Fourth Amendment 'liberally to safeguard the right of privacy.' United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877, 82 A.L.R. 775. (See an analysis of the cases in the Appendix to this opinion.) Thus, the federal rule established in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177, as against the rule prevailing in many States, renders evidence obtained through an improper search inadmissible no matter how relevant. See People v. Defore, 242 N.Y. 13, 150 N.E. 585, and Chafee, the Progress of the Law 1919-1922, 35 Harv.L.Rev. 673, 694 et seq. And long before the Weeks case, Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 764, gave legal effect to the broad historic policy underlying the Fourth Amendment.4 The Boyd opinion has been the guide to the interpretation of the Fourth Amendment to which the Court has most frequently recurred.

It is significant that the constitution of every State contains a clause like that of the Fourth Amendment and often in its precise wording. Nor are these constitutional provi ions historic survivals. New York was alone in not having a safeguard against unreasonable search and seizure in its constitution. In that State, the privilege of privacy was safeguarded by a statute. It tells volumes that in 1938, New York, not content with statutory protection, put the safeguard into its constitution.5 If one thing on this subject can be said with confidence it is that the protection afforded by the Fourth Amendment against search and seizure by the police, except under the closest judicial safeguards, is not an outworn bit of Eighteenth Century romantic rationalism but an indispensable need for a democratic society.

The Fourth Amendment, we have seen, derives from the similar provision in the first Massachusetts Constitution. We may therefore look to the construction which the early Massachusetts Court placed upon the progenitor of the Fourth Amendment: 'With the fresh recollection of those stirring discussions (respecting writs of assistance), and of the revolution which followed them, the article in the Bill of Rights, respecting searches and seizures, was framed and adopted. This article does not prohibit all searches and seizures of a man's person, his papers, and possessions; but such only as are 'unreasonable,' and the foundation of which is 'not previously supported by oath or affirmation.' The legislature were not deprived of the power to authorize search warrants for probable causes, supported by oath or affirmation, and for the punishment or suppression of any violation of law.' Commonwealth v. Dana, 2 Metc., Mass., 329, 336.

The plain import of this is that searches are 'unreasonable' unless authorized by a warrant, and a warrant hedged about by adequate safeguards. 'Unreasonable' is not to be determined with reference to a particular search and seizure considered in isolation. The 'reason' by which search and seizure is to be tested is the 'reason' that was written out of historic experience into the Fourth Amendment. This means that, with minor and severely confined exceptions, inferentially a part of the Amendment, every search and seizure is unreasonable when made without a magistrate's authority expressed through a validly issued warrant.

It is noteworthy that Congress has consistently and carefully respected the privacy protected by the Fourth Amendment. ecause they realized that the dangers of police abuse were persisting dangers, the Fathers put the Fourth Amendment into the Constitution. Because these dangers are inherent in the temptations and the tendencies of the police, Congress has always ways been chary in allowing the use of search warrants. When it has authorized them it has circumscribed their use with particularity. In scores upon score of Acts, Congress authorized search by warrant only for particular situations and in extremely restricted ways. Despite repeated importunities by Attorneys General of the United States, Congress long refused to make search by warrant generally available as a resource in aid of criminal prosecution. It did not do so until the first World War, and even then it did not do so except under conditions carefully circumscribed.

The whole history of legislation dealing with search and seizure shows how warily Congress has walked precisely because of the Fourth Amendment. A search of the entire premises for instruments of crime merely as an incident to a warrant of arrest has never been authorized by Congress. Nor has Congress ever authorized such search without a warrant even for stolen or contraband goods. On the contrary, it is precisely for the search of such goods that specific legislative authorization was given by Congress. Warrants even for such search required great particularity and could be issued only on adequate grounds. (For a table of Congressional legislation, with indication as to its scope, see the Appendix to the dissenting opinion in the Davis case, 328 U.S. at page 616, 66 S.Ct. at page 1273.)

This is the historic background against which the undisputed facts of this case must be projected. For me the background ground is respect for that provision of the bill of Rights which is central to enjoyment of the other guarantees of the Bill of Rights. How can there be freedom of thought or freedom of speech or freedom of religion, if the police can, without warrant, search your house and mine from garret to cellar merely because they are executing a warrant of arrest? How can men feel free if all their papers may be searched, as an incident to the arrest of someone in the house, on the chance that something may turn up, or rather, be turned up? Yesterday the justifying document was an illicit ration book, tomorrow it may be some suspect piece of literature.

The Court's reasoning, as I understand it, may be briefly stated. The entry into Harris' apartment was lawful because the agents had a warrant of arrest. The ensuing search was lawful because, as an incident of a lawful arrest, the police may search the premises on which the arrest took place since everything in the apartment was in the 'possession' of the accused and subject to his control. It was lawful, therefore, for the agents to rummage the apartment in search for 'instruments of the crime.' Since the search was lawful, anything illicit discovered in the course of the search was lawfully seized. In any event, the seizure was lawful because the documents found were property of the United States and their possession was a continuing crime against the United States.

Much is made of the fact that the entry into the house was lawful. But we are not confined to issues of trespass. The protection of the Fourth Amendment extends to improper searches and seizures, quite apart from the legality of an entry. The Amendment asserts the 'right of the people to be secure' not only 'in their persons, houses,' but also in their 'papers, and effects, against unreasonable searches and seizures.' It is also assumed that because the search was allegedly for instruments of the crime for which Harris was arrested it was ipso facto justified as an incident of the arrest. It would hardly be suggested that such a search could be made without warrant if Harris had been arrested on the street. How, then, is rummaging a man's closets and drawers more incidental to the arrest because the police chose to arrest him at home? For some purposes to be sure, a man's house and its contents are deemed to be in his 'possession' or 'control' even when he is miles away. Because this is a mode of legal reasoning relevant to disputes over property, the usual phrase for such non-physical control is 'constructive possession.' But this mode of thought and these concepts are irrelevant to the application of the Fourth Amendment and hostile to respect for the liberties which it protects. Due regard for the policy of the Fourth Amendment precludes indulgence in the fiction that the recesses of a man's house are like the pickets of the clothes he wears at the time of his arrest.

To find authority for ransacking a home merely from authority for the arrest of a person is to give a novel and ominous rendering to a momentous chapter in the history of Anglo-American freedom. An Englishman's home, though a hovel, is his castle, precisely because the law secures freedom from fear of intrusion by the police except under carefully safeguarded authorization by a magistrate. To derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the Constitution protects both unauthorized arrest and unauthorized search. Authority to arrest does not dispense with the requirement of authority to search.

But even if the search was reasonable, it does not follow that the seizure was lawful. If the agents had obtained a warrant to look for the cancelled checks, they could not be entitled to seize other items discovered in the process. Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231.6 Harris would have been able to reclaim them by a motion to suppress evidence. Such is the policy of the Fourth Amendment, recognized by Congress and reformulated in the New Rules of Criminal Procedure adopted only last year. 18 U.S.C.A. following section 687. See Rule 41(e) superseding the Act of June 15, 1917, 40 Stat. 228, 229, 18 U.S.C.A. §§ 625, 626. The Court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search.

These principles are well established. While a few of the lower courts have uncritically and unwarrantedly extended the very limited search without warrant of a person upon his lawful arrest, such extension is hostile to the policy of the Amendment and is not warranted by the precedents of this Court.

'It is important to keep clear the distinction between prohibited searches on the one hand and improper seizures on the other. See Mr. Justice Miller, in Boyd v. United States, 116 U.S. 616, 638, 641, 6 S.Ct. 524, 536, 538, 29 L.Ed. 746. Thus, it is unconstitutional to seize a person's private papers, though the search in which they were recovered was perfectly proper, E.g., Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647. It is unconstitutional to make an improper search even for articles that are appropriately subject to seizure, e.g., Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951. And a search may be improper because of the object it seeks to uncover, e.g., Weeks v. United States, 232 U.S. 383, 393, 394, 34 S.Ct. 341, 344, 345, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177, or because its scope extends beyond the constitutional bounds, e.g., Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, (51 A.L.R. 409).

'The course of decisions here has observed these important distinctions. The Court has not been indulgent towards inroads upon the Amendment. Only rar ly have its dicta appeared to give undue scope to the right of search on arrest, and Marron v. United States, supra, (275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231), is the only decision in which the dicta were reflected in the result. That case has been a source of confusion to the lower courts. Thus, the Circuit Court of Appeals for the Second Circuit felt that the Marron case required it to give a more restricted view to the prohibitions of the Fourth Amendment than that court had expounded in United States v. Kirschenblatt, (2 Cir., 16 F.2d 202, 51 A.L.R. 416), see Go-Bart Importing Co. v. United States, sub nom., United States v. Gowen, 2 Cir., 40 F.2d 593, only to find itself reversed here, Go-Bart Importing Co. v. United States, supra, (282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374), partly on the authority of the Kirschenblatt decision which, after the Marron case, it thought it must disown. The uncritical application of the right of search on arrest in the Marron case has surely been displaced by Go-Bart Importing Co. v. United States, supra, and even more drastically by United States v. Lefkowitz, supra, (285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775), unless one is to infer that an earlier case qualifies later decisions although these later decisions have explicitly confined the earlier case.' Davis v. United States, 328 U.S. at pages 612, 613, 66 S.Ct. at page 1271 (dissenting opinion).

It is urged that even if the search was not justified, once it was made and the illicit documents discovered, they could be seized because their possession was a 'continuing offense' committed 'in the very presence of the agents.' Apparently, then, a search undertaken illegally may retrospectively, by a legal figment, gain legality from what happened four hours later. This is to defeat the prohibition against lawless search and seizure by the application of an inverted notion of trespass ab initio. Here an unconstitutional trespass ab initio retrospectively acquires legality. Thus, the decision finds satisfaction of the constitutional requirement by circular reasoning. Search requires authority; authority to search is gained by what may be found during search without authority. By this reasoning every illegal search and seizure may be validated if the police find evidence of crime. The result can hardly be to discourage police violation of the constitutional protection.

If the search is illegal when begun, as it clearly was in this case if past decisions mean anything, it cannot retrospectively gain legality. If the search was illegal, the resulting seizure in the course of the search is illegal. It is no answer to say that possession of a document may itself be a crime. There is no suggestion here that the search was based on even a suspicion that Harris was in possession of illicit documents. The search was justified and is justified only in connection with the offense for which there was a warrant of arrest. But unless we are going to throw to the winds the latest unanimous decisions of this Court on the allowable range of search without warrant incidental to lawful arrest, Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775, this was an unlawful search which rendered unavailable as evidence everything seized in the course of it. That the agents might have obtained a warrant to make the search only emphasizes the illegality of their conduct. In the words of Mr. Justice Holmes, speaking for the Court, the precious constitutional rights 'against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.' Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 24 A.L.R. 1426. Nor does the fact that the goods seized are contraband make valid an otherwise unlawful search and seizure. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145. Indeed it was for contraband g ods that search warrants, carefully hedged about, were first authorized by Congress.

The only exceptions to the safeguard of a warrant issued by a magistrate are those which the common law recognized as inherent limitations of the policy which found expression in the Fourth Amendment—where circumstances preclude the obtaining of a warrant (as in the case of movable vehicles), and where the warrant for the arrest of a person carries with it authority to seize all that is on the person, or is in such open and immediate physical relation to him as to be, in a fair sense, a projection of his person. That is the teaching of both the Go-Bart and the Lefkowitz cases, which effectually retract whatever may have been the loose consideration of the problem in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231. Thus, the Go-Bart case emphasized that the things seized in the Marron case were 'visible and accessible and in the offender's immediate custody.' 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374. By 'immediate custody' was not meant that figurative possession which for some legal purposes puts one in 'possession' of everything in a house. The sentence following that just quoted excludes precisely the kind of thing that was done here. 'There was no threat of force or general search or rummaging of the place.' Ibid.

In our case, five agents came to arrest Harris on a charge of violating the Postal Laws and the National Stolen Property Act. Though the arrest was consummated in the living room, the agents were told to make 'a thorough search' of the entire apartment. In the bedroom they lifted the carpets, stripped the bed-linen, turned over the mattress. They combed the contents of the linen closet and even looked into Harris' shoes. The Selective Service cards, the items whose seizure is here in controversy, were discovered only after agents tore open a sealed envelope labeled 'personal papers' which they had found under some clothes in a drawer of a small bureau in the bedroom. If there was no 'rummaging of the place' in this case it would be difficult to imagine what 'rummaging of the place' means.

Again, in the Lefkowitz case, the Marron case was carefully defined and limited: 'There, prohibition officers lawfully on the premises searching for liquor described in a search warrant, arrested the bartender for crime openly being committed in their presence. He was maintaining a nuisance in violation of the act. The offense involved the element of continuity, the purchase of liquor from time to time, its sale as a regular thing for consumption upon the premises, and other transactions including the keeping of accounts. The ledger and bills being in plain view were picked up by the officers as an incident of the arrest. No search for them was made.' 285 U.S. at page 465, 52 S.Ct. at page 423, 76 L.Ed. 877, 82 A.L.R. 775.

Surely no comparable situation is now here. There was no search warrant, no crime was 'openly being committed' in the presence of the officers, the seized documents were not 'in plain view' or 'picked up by the officers as an incident of the arrest.' Here a 'thorough search' was made, and made without warrant.

To say that the Go-Bart and the Lefkowitz cases—both of them unanimous decisions of the Court—are authority for the conduct of the arresting agents in this case is to find that situations decisively different are the same.

It greatly underrates the quality of the American people and of the civilized standards to which they can be summoned to suggest that we must conduct our criminal justice on a lower level than does England, and that our police must be given a head which British courts deny theirs. A striking and characteristic example of the solicitous care of English courts concerning the 'liberty of the subject' may be found in the recent judgments in Christie v. Leachinsky. In that case the House of Lords unanimously ruled that if a policeman arrests without warrant, although entertaining a reasonable suspicion of felony which ould justify arrest, but does not inform the person of the nature of the charge, the police are liable for false imprisonment for such arrest. These judgments bear mightily upon the central problem of this case, namely, the appropriate balancing, in the words of Lord Simonds, of 'the liberty of the subject and the convenience of the police.' Christie v. Leachinsky, (1947) 1 All E.R. 567, 576.7

The English attitude was clearly evinced also in the famous Savidge case. 'Both the original incident and its sequel illustrate the sensitiveness of English opinion to even a suggestion of oppression by the police.' IV Reports of the National Commission on Law Observance and Enforcement ('Lawlessness in Law Enforcement') P. 261. For 'the high standards of conduct exacted by Englishmen of the police' (Id. at 259) see the debates in the House of Commons, 217 Hans. Deb. (Commons), cols. 1303 et seq. (May 17, 1928), and 220 Id.cols. 35 and 805 et seq. (July 20, 1928), and the Report of the Tribunal of Inquiry on the Savidge case, Cmd. 3147, 1928. There are those who say that we cannot have such high standards of criminal justice because the general standards of English life ensure greater obedience to law and better law enforcement. I reject this notion, and not the least because I think it is more accurate to say that the administration of criminal justice is more effective in England because law enforcement is there pursued on a more civilized level.

Of course, this may mean that it might be more difficult to obtain evidence of an offense unexpectedly uncovered in a lawless search. It may even mean that some offenses may go unwhipped of the law. If so, that is part of the cost for the greater gains of the Fourth Amendment. The whole point about the Fourth Amendment is that 'Its protection extends to offenders as well as to the law abiding,' because of its important bearing in maintaining a free society and avoiding the dangers of a police state. United States v. Lefkowitz, supra, 285 U.S. at page 464, 52 S.Ct. at page 423, 76 L.Ed. 877, 82 A.L.R. 775. But the impediments of the Fourth Amendment to effective law enforcement are grossly exaggerated. Disregard of procedures imposed upon the police by the Constitution and the laws is too often justified on the score of necessity. This case is a good illustration how lame an excuse it is that conduct such as is now before us is required by the exigencies of law enforcement. Here there was ample opportunity to secure the authority of law to make the search and later authority from a magistrate to seize the articles uncovered in the course of the search. Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 467, 76 L.Ed. 951; United States v. Kaplan, 2 Cir., 89 F.2d 869, 871. The hindrances that are conjured up are counsels of despair which disregard the experience of effective law enforcement in j risdictions where the police are held to strict accountability and are forbidden conduct like that here disclosed.

Stooping to questionable methods neither enhances that respect for law which is the most potent element in law enforcement, nor, in the long run, do such methods promote successful prosecution. In this country police testimony is often rejected by juries precisely because of a widely entertained belief that illegal methods are used to secure testimony. Thus, dubious police methods defeat the very ends of justice by which such methods are justified. No such cloud rests on police testimony in England. Respect for law by law officers promotes respect generally, just as lawlessness by law officers sets a contagious and competitive example to others. See IV Reports of the National Commission on Law Enforcement and Observance ('Lawlessness in Law Enforcement') passim, especially pp. 190—192. Moreover, by compelling police officers to abstain from improper methods for securing evidence, pressure is exerted upon them to bring the resources of intelligence and imagination into play in the detection and prosecution of crime.

No doubt the Fourth Amendment limits the freedom of the police in bringing criminals to justice. But to allow them the freedom which the Fourth Amendment was designed to curb was deemed too costly by the Founders. As Mr. Justice Holmes said in the Olmstead case, 'we must consider the two objects of desire both of which we cannot have, and make up our minds which to choose.' 277 U.S. at page 470, 48 S.Ct. at page 575, 72 L.Ed. 944, 66 A.L.R. 376. Of course arresting officers generally feel irked by what to them are technical legal restrictions. But they must not be allowed to be unmindful of the fact that such restrictions are essential safeguards of a free people. To sanction conduct such as this case reveals is to encourage police intrusions upon privacy, without legal warrant, in situations that go even beyond the facts of the present case. If it be said that an attempt to extend the present case may be curbed in subsequent litigation, it is important to remember that police conduct is not often subjected to judicial scrutiny. Day by day mischief may be done and precedents built up in practice long before the judiciary has an opportunity to intervene. It is for this reason—the dangerous tendency of allowing encroachments on the rights of privacy—that this Court in the Boyd case gave to the Fourth Amendment its wide protective scope.

It is vital, no doubt, that criminals should be detected, and that all relevant evidence should be secured and used. On the other hand, it cannot be said too often that what is involved far transcends the fate of some sordid offender. Nothing less is involved that that which makes for an atmosphere of freedom as against a feeling of fear and repression for society as a whole. The dangers are not fanciful. We too readily forget them. Recollection may be refreshed as to the happenings after the first World War by the 'Report upon the Illegal Practices of the United States Department of Justice', which aroused the public concern of Chief Justice Hughes8 (then at the bar), and by the little book entitled 'The Deportations Delirium of Nineteen-Twenty' by Louis F. Post, who spoke with the authoritative knowledge of an Assistant Secretary of Labor.

ore than twenty years ago, before democracy was subjected to its recent stress and strain, Judge Learned Hand, in a decision approved by this Court in the Lefkowitz case, expressed views that seem to me decisive of this case: 'After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home. Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition.' United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 203, 51 A.L.R. 416.

For appendix, see 331 U.S. 175, 67 S.Ct. 1121.

APPENDIX to dissenting opinion by Justice Frankfurter.

See 67 S.Ct. p. 1104.

Analysis of Decisions Involving Searches and Seizures,

from Weeks v. United States, 232 U.S. 383,34 S.Ct. 341,

up to Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256.^*

1. Name of case 2. Charge on arrest 3. Authority for

arrest

Weeks v. United Use of mails to Arrested without a

States, 1914, 232 U. distribute lottery warrant and not

S. 383, 34 S.Ct. 341. tickets. during commission

of crime.

Schenck v. United Conspiracy to violate Indictment

S. 47, 39 S.Ct. 247. 1917, 50 U.S.C.A. §§

33, 34, 18 U.S.C.A.

§ 344.

Silverthorne Lumber Contempt of court No arrest

by subpoena. (One

of defendants was

a corporation.)

evidence secured

as indicated in

columns 3-7.

Gouled v. United Conspiracy and use Indictment

States, 1921, 255 U. of mails to defraud

S. 298, 41 S.Ct. 261. United States.

Amos v. United Removal of whiskey ....do

whiskey on which

no tax had been

paid.

Burdeau v. McDowell, Civil suit for return No arrest

to Attorney

General.

Essgee Co. of China Violation of import Warrants

v. United States, laws. (Corporate

later, of course,

were arrested.)

Carroll v. United Transportation of Arrested during

States, 1925, 267 U. alcoholic beverages. commission of

S. 132, 45 S.Ct. 280. crime.

Steele v. United 1. Action for return 1. No arrest

States, 1925, 267 U. of seized liquor.

S. 498, 45 S.Ct. 414.

S.Ct. 417 (two cases).

liquor in violation of

U.S.C.A. § 1 et seq.

Dumbra v. United Motion to quash No arrest

States, 1925, 268 U. search warrant.

S. 435, 45 S.Ct. 456.

Agnello v. United Possession and sale Arrested during

States, 1925, 269 U. of cocaine without commission of

S. 20, 46 S.Ct. 4. registration or crime.

payment of tax.

Byars v. United Possession of Indictment

States, 1927, 273 U. counterfeit alcoholic

S. 28, 47 S.Ct. 248. beverage stamps.

McGuire v. United Possession of Information

States, 1927, 273 U. intoxicating liquor.

S. 95, 47 S.Ct. 259.

United States v. Lee, Conspiracy to violate Arrested while

1927, 274 U.S. 559, Prohibition Act. engaging in crime.

47 S.Ct. 746.

Segurola v. United Transportation of Arrested during

States, 1927, 275 U. intoxication liquor. commission of

S. 106, 48 S.Ct. 77. crime.

United States v. Civil suit to abate No arrestw47

Berkeness, 1927, 275 U. nuisance.

S. 149, 48 S.Ct. 46.

Marron v. United Violation of Indictment. (Crime

States, 1927, 275 U. Prohibition Act, 27 committed in presence

S. 192, 48 S.Ct. 74. U.S.C.A. § 1 et seq. of arresting

officers. Articles

seized, as described

in columns 4-7,

were taken at time

of arrest.)

Gambino v. United Transportation of Crime committed in

States, 1927, 275 U. intoxicating liquor. presence of arresting

police).

Go-Bart Importing Possession, Invalid warrant

Co. v. United transportation, sale,

States, 1931, 282 U. etc., of intoxicating

S. 344, 51 S.Ct. 153. liquor.

Husty v. United Possession and Arrested during

States, 1931, 282 U. transportation of commission of

S. 694, 51 S.Ct. 240, intoxicating liquor. crime.

United States v. Conspiracy to violate Warrant of U. S.

Lefkowitz, 1932, 285 U. Prohibition Act, Commissioner.

premises for sale

and solicitation of

orders.

Taylor v. United Illegal possession of Arrest made on basis

States, 1932, 286 U. intoxicating liquor. of evidence

search.

Grau v. United Unlawful manufacture Indictment

S. 124, 53 S.Ct. 38. of liquor.

Sgro v. United Possession and sale Information

S. 206, 53 S.Ct. 138. liquor.

Nathanson v. United Importation of Information, filed

States, 1933, 290 U. liquor without after seizure.

duties.

Scher v. United Possession and Arrest during

States, 1938, 305 U. transportation of commission of crime.

S. 251, 59 S.Ct. 174. distilled alcohol on

which tax had not

been paid.

4. Articles seized 5. Articles seized 6. Articles seized

under warrant

incident to

lawful arrest

Personal papers and None None

lottery tickets,

taken from

defendant's home.

Leaflets counseling Leaflets counseling ....do

draft evasion. draft evasion.

to search of

headquarters from

which leaflets were

mailed by

defendant.

Books and papers None ....do

seized under color

of invalid

subpoena.

4 documents taken 3 of the papers. ....do

from defendant's (The other was

office. taken by stealth

from the office by

a government

agent.)

Whiskey in question, None ....do

as result of search

without a warrant

in defendant's

absence. (Officers

admitted by

defendant's wife.)

Plaintiff's books and ....do ....do

papers had been

stolen from plaintiff's

possession by

a party unrelated

to the Federal

Government.

Corporate papers and Corporate papers and None

books books produced

under subpoena.

Alcoholic beverages None Whiskey uncovered

during search of

car in which it

was

being transported

at time of arrest.

1. Liquor 1. Liquor. (Warrant 1. None

was directed to

address not

specifically

stated to be

that of building

searched.)

2. Liquor 2. Liquor. (Warrant 2. None

was directed to

prohibition officer.

reasonable cause for

its issuance was

not left to jury.)

Alcoholic wines.

Alcoholic wines Alcoholic wines None

Can of cocaine None ....do

seized at home of

one of defendants

while he was being

arrested several

blocks away.

Counterfeit alcoholic No Federal warrant ....do

beverage stamps. issued. But

warrant was issued by

state judge to state

officers to search

for liquor. Federal

officer accompanied

them on search

and uncovered

stamps.

Intoxicating liquor Intoxicating liquor. ....do

(Most of liquor

thus seized was

immediately

destroyed, with only

samples retained

for evidence.)

71 cases of grain None 71 cases of grain

alcohol. Cases were alcohol

seized on American

vessel more than 12

miles from shore.

Intoxicating liquor None The liquor

Liquor Liquor. Warrant None

was invalid for

failure of allegation

of sale on the

premises as basis

for its issue.

Intoxicating liquor, The intoxicating Ledger and bills.

ledger, and papers. liquor Court held that,

(Ledger was in while seizure was

closet in back of not authorized by

bar which the warrant, ledger

contained some of the and bills were

liquor; papers properly seized as

(bills) were on within the "immediate

table near cash possession

register.) and control" of

offender.

Intoxicating liquor None Liquor seized as

result of search

of

car in which

defendants were

when arrested.

probable cause for

arrest.

Office papers and ....do None. (See column

records secured by 3.)

use of keys taken

from defendants at

time of their

arrest, and on false

statement that

they had a warrant

for the papers.

Intoxicating liquor. ....do Intoxicating liquor

uncovered during

search of

automobile

reasonably

believed

to contain

contraband.

Variety of papers ....do None. (Papers in

taken from desks, waste basket were,

cabinets, and of course, in open

wastebasket. view.)

papers were lists of

names and

addresses, stationery,

bills directed to

customers, letters

of solicitation, etc.

122 cases of liquor. ....do None

and noticed odor

of alcohol coming

from garage.

defendant had been

under suspicion.

garage and

uncovered cache of

liquor. Defendant

was arrested when

he came to garage

during search.

appurtenances, and 350 appurtenances, and 350

gallons of whiskey. gallons of whiskey.

on mere allegations

that defendant

had been seen

hauling cans often

used for liquor,

and bringing cane

sugar onto premises;

that full

cans were removed

from premises;

and that odors of

fumes of cooking

mash were noticeable.

no allegation of

any sale on premises.

Intoxicating liquor Intoxicating liquor. ....do

But warrant was invalid.

not executed within 10 days:

reissued without new

evidence or affidavits.

....do Intoxicating liquor. But ....do

warrant issued by state

judge at request of

customs agent on mere

allegation of belief by

customs agent that defendant

had violated the law.

Distilled alcohol on None Liquor seized during

which tax had not search of car

been paid. which officers had

followed into

garage adjoining

defendant's house.

incident to 8. Decision

authorized search

for other articles

None District court had

improperly admitted

in evidence

some of articles

seized; conviction

reversed.

....do Evidence properly

admitted by trial

court for use

against defendant.

....do Order directing

production of

evidence, which was

based on knowledge

secured in

violation of Fourth

error, and conviction

for failure to

obey order

reversed. (White, C.

J., and Pitney, J.,

dissenting.)

....do On certification, held

that papers were

inadmissible.

may issue only

when interest of

public or

complainant in the

article is primary,

or when its possession

is unlawful;

it may not issue

merely to secure

evidence.

....do Evidence improperly

admitted;

conviction reversed.

....do District court had

held that retention

of paper for use as

evidence was in

violation of Fourth

and Fifth Amendments;

this Court

reversed. (Brandeis

and Holmes,

admitted evidence

against both

corporate and

individual defendants.

affirmed.

....do Evidence was

properly admitted;

conviction affirmed.

(McReynolds and

Sutherland, JJ.,

dissenting.)

1. None 1. Evidence properly

secured and need

not be returned.

2. None 2. Evidence properly

secured and properly

admitted by</