U.S. Supreme Court Andresen v. Maryland, 427
U.S. 463 (1976) Andresen v. Maryland No. 74-1646 Argued February 25,
1976 Decided June 29, 1976 427
U.S. 463 CERTIORARI TO THE COURT OF SPECIAL
APPEAL OF MARYLAND Syllabus After an investigation by a State's Attorneys' fraud unit of
real estate settlement activities in certain Maryland counties
indicated that petitioner, while acting as a settlement attorney,
had defrauded the purchaser of certain realty (Lot 13T), the
investigators obtained warrants to search petitioner's offices. The
warrants listed specified items pertaining to Lot 13T to be seized,
"together with other fruits, instrumentalities and evidence of
crime at this [time] unknown." In the ensuing search, a number of
incriminating documents, including some containing statements made
by petitioner, were seized. Petitioner was then charged, inter
alia, with the crime of false pretenses based on a
misrepresentation made to the purchaser of Lot 13T that title to
the property was clear. Petitioner's motion to suppress the seized
documents was granted as to some documents, but, with respect to
others, the trial court ruled that their admission into evidence
would not violate the Fourth and Fifth Amendments. At trial, which
resulted in petitioner's conviction, a number of the seized items
(including documents pertaining to a lot other than Lot 13T but
located in the same subdivision and subject to the same liens as
Lot 13T) were admitted in evidence, after being authenticated by
prosecution witnesses. The Maryland Court of Special Appeals
affirmed the conviction and rejected petitioner's constitutional
claims. Held: 1. The search of petitioner's offices for business records,
their seizure, and subsequent introduction into evidence did not
offend the Fifth Amendment's proscription that "[n]o person . . .
shall be compelled in any criminal case to be a witness against
himself." Although the records seized contained statements that
petitioner voluntarily had committed to writing, he was never
required to say anything. The search for and seizure of these
records were conducted by law enforcement personnel, and when the
records were introduced at trial, they were authenticated by
prosecution witnesses, not by petitioner. Therefore, any compulsion
of petitioner to speak, other than the inherent psychological Page 427 U. S. 464 pressure to respond at trial to unfavorable evidence, was not
present. Pp. 427 U. S.
470 -477.

															2. The searches and seizures were not "unreasonable" in
violation of the Fourth Amendment. Pp. 427 U. S.
478 -484.

															(a) The warrants were not rendered fatally "general" by the
"together with" phrase, which appeared in each warrant at the end
of a sentence listing the specified items to be seized, all
pertaining to Lot 13T. This phrase must be read as authorizing only
the search for and seizure of evidence relating to the crime of
false pretenses with respect to Lot 13T. Pp. 427 U. S.
479 -482.

															(b) The seizure of the documents pertaining to a lot other than
Lot 13T in the same subdivision and subject to the same liens as
Lot 13T did not violate the principle that, when police seize

															"'mere evidence,' probable cause must be examined in terms of
cause to believe that the evidence sought will aid in a particular
apprehension or conviction," Warden v. Hayden, 387 U. S. 294 , 387 U. S. 307 .
The investigators reasonably could have believed that the evidence
specifically dealing with fraudulent conduct respecting the other
lot could be used to show petitioner's intent to defraud with
respect to Lot 13T, and although such evidence was used to secure
additional charges against petitioner, its suppression was not
required. Pp. 427 U. S.
482 -484.

															24 Md.App. 128, 331
A.2d 78 , affirmed.

															BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, POWELL, REHNQUIST, and STEVENS,
JJ., joined. BRENNAN, J., post, p. 427 U. S. 484 ,
and MARSHALL, J., post, p. 427 U. S. 493 ,
filed dissenting opinions. Page 427 U. S. 465 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															This case presents the issue whether the introduction into
evidence of a person's business records, seized during a search of
his offices, violates the Fifth Amendment's command that "[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself." We also must determine whether the
particular searches and seizures here were "unreasonable," and thus
violated the prohibition of the Fourth Amendment. I In early 1972, a Bi-County Fraud Unit, acting under the joint
auspices of the State's Attorneys' Offices of Montgomery and Prince
George's Counties, Md. began an investigation of real estate
settlement activities in the Washington, D.C., area. At the time,
petitioner Andresen was an attorney who, as a sole practitioner,
specialized in real estate settlements in Montgomery County. During
the Fraud Unit's investigation, his activities came under scrutiny,
particularly in connection with a transaction involving Lot 13T in
the Potomac Woods subdivision of Montgomery County. The
investigation, which included interviews with the purchaser, the
mortgage holder, and other lienholders of Lot 13T, as well as an
examination of county land records, disclosed that petitioner,
acting as settlement attorney, had defrauded Standard-Young
Associates, the purchaser of Lot 13T. Petitioner had represented
that the property was free of liens and that, accordingly, no title
insurance was necessary, when in fact, he knew that there were two
outstanding liens on the property. In addition, investigators Page 427 U. S. 466 learned that the lienholders, by threatening to foreclose their
liens, had forced a halt to the purchaser's construction on the
property. When Standard-Young had confronted petitioner with this
information, he responded by issuing, as an agent of a title
insurance company, a title policy guaranteeing clear title to the
property. By this action, petitioner also defrauded that insurance
company by requiring it to pay the outstanding liens.

															The investigators, concluding that there was probable cause to
believe that petitioner had committed the state crime of false
pretenses, see Md.Ann.Code, Art. 27, § 140 (1976), against
Standard-Young, applied for warrants to search petitioner's law
office and the separate office of Mount Vernon Development
Corporation, of which petitioner was incorporator, sole
shareholder, resident agent, and director. The application sought
permission to search for specified documents pertaining to the sale
and conveyance of Lot 13T. A judge of the Sixth Judicial Circuit of
Montgomery County concluded that there was probable cause, and
issued the warrants.

															The searches of the two offices were conducted simultaneously
during daylight hours on October 31, 1972. [ Footnote 1 ] Petitioner was present during the search of
his law office, and was free to move about. Counsel for him was
present during the latter half of the search. Between 2% and 3% of
the files in the office were seized. A single investigator, in the
presence of a police officer, conducted Page 427 U. S. 467 the search of Mount Vernon Development Corporation. This search,
taking about four hours, resulted in the seizure of less than 5% of
the corporation's files.

															Petitioner eventually was charged, partly by information and
partly by indictment, with the crime of false pretenses, based on
his misrepresentation to Standard-Young concerning Lot 13T, and
with fraudulent misappropriation by a fiduciary, based on similar
false claims made to three home purchasers. Before trial began,
petitioner moved to suppress the seized documents. The trial court
held a full suppression hearing. At the hearing, the State returned
to petitioner 45 of the 52 items taken from the offices of the
corporation. The trial court suppressed six other corporation items
on the ground that there was no connection between them and the
crimes charged. The net result was that the only item seized from
the corporation's offices that was not returned by the State or
suppressed was a single file labeled "Potomac Woods General." In
addition, the State returned to petitioner seven of the 28 items
seized from his law office, and the trial court suppressed four
other law office items based on its determination that there was no
connection between them and the crime charged.

															With respect to all the items not suppressed or returned, the
trial court ruled that admitting them into evidence would not
violate the Fifth and Fourth Amendments. It reasoned that the
searches and seizures did not force petitioner to be a witness
against himself, because he had not been required to produce the
seized documents, nor would he be compelled to authenticate them.
Moreover, the search warrants were based on probable cause, and the
documents not returned or suppressed were either directly related
to Lot 13T, and therefore within the express language of the
warrants, or properly seized and otherwise admissible to show a
pattern of Page 427 U. S. 468 criminal conduct relevant to the charge concerning Lot 13T.

															At trial, the State proved its case primarily by public land
records and by records provided by the complaining purchasers,
lienholders, and the title insurance company. It did introduce into
evidence, however, a number of the seized items. Three documents
from the "Potomac Woods General" file, seized during the search of
petitioner's corporation, were admitted. These were notes in the
handwriting of an employee who used them to prepare abstracts in
the course of his duties as a title searcher and law clerk. The
notes concerned deeds of trust affecting the Potomac Woods
subdivision and related to the transaction involving Lot 13T.
[ Footnote 2 ] Five items seized
from petitioner's law office were also admitted. One contained
information relating to the transactions with one of the defrauded
home buyers. The second was a file partially devoted to the Lot 13T
transaction; among the documents were settlement statements, the
deed conveying the property to Standard-Young Associates, and the
original and a copy of a notice to the buyer about releases of
liens. The third item was a file devoted exclusively to Lot 13T.
The fourth item consisted of a copy of a deed of trust, dated March
27, 1972, from the seller of certain lots in the Potomac Woods
subdivision to a lienholder. [ Footnote 3 ] The fifth item contained drafts of Page 427 U. S. 469 documents and memoranda written in petitioner's handwriting.

															After a trial by jury, petitioner was found guilty upon five
counts of false pretenses and three counts of fraudulent
misappropriation by a fiduciary. He was sentenced to eight
concurrent two-year prison terms.

															On appeal to the Court of Special Appeals of Maryland, four of
the five false pretenses counts were reversed because the
indictment had failed to allege intent to defraud, a necessary
element of the state offense. Only the count pertaining to
Standard-Young's purchase of Lot 13T remained. With respect to this
count of false pretenses and the three counts of misappropriation
by a fiduciary, the Court of Special Appeals rejected petitioner's
Fourth and Fifth Amendment Claims. [ Footnote 4 ] Specifically, it held that the warrants were
supported by probable cause, that they did not authorize a general
search in violation of the Fourth Amendment, and that the items
admitted into evidence against petitioner at trial were within the
scope of the warrants or were otherwise properly seized. It agreed
with the trial court that the search had not violated petitioner's
Fifth Amendment rights because petitioner had not been compelled to
do anything. 24 Md.App. 128, 331 A.2d 78 (1975). Page 427 U. S. 470 We granted certiorari limited to the Fourth and Fifth Amendment
issues. 423 U.S. 822 (1975). [ Footnote 5 ] II The Fifth Amendment, made applicable to the States by the
Fourteenth Amendment, Malloy v. Hogan, 378 U. S.
1 , 378 U. S. 8 (1964), provides that "[n]o person . . . shall be compelled in any
criminal case to be a witness against himself." As the Court often
has noted, the development of this protection was in part a
response to certain historical practices, such as ecclesiastical
inquisitions and the proceedings of the Star Chamber, "which placed
a premium on compelling subjects of the investigation to admit
guilt from their own lips." Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 440 (1974). See generally L. Levy, Origins of the Fifth
Amendment (1968). The "historic function" of the privilege has been
to protect a " natural individual from compulsory incrimination
through his Page 427 U. S.
471 own testimony or personal records.'" Bellis v. United
States, 417 U. S. 85 , 417 U. S. 89 -90
(1974), quoting from United States v. White, 322 U.
S. 694 , 322 U. S. 701 (1944). There is no question that the records seized from petitioner's
offices and introduced against him were incriminating. Moreover, it
is undisputed that some of these business records contain
statements made by petitioner. Cf. United States v. Mara, 410 U. S. 19 , 410 U. S. 21 -22
(1973); United States v. Dionisio, 410 U. S.
1 (1973); Gilbert v. California, 388 U.
S. 263 , 388 U. S.
266 -267 (1967); United States v. Wade, 388 U. S. 218 (1967); and Schmerber v. California, 384 U.
S. 757 (1966). The question, therefore, is whether the
seizure of these business records, and their admission into
evidence at his trial, compelled petitioner to testify against
himself in violation of the Fifth Amendment. This question may be
said to have been reserved in Warden v. Hayden, 387 U. S. 294 , 387 U. S.
302 -303 (1967), and it was adverted to in United
States v. Miller, 425 U. S. 435 , 425 U. S. 441 n. 3 (1976).

															Petitioner contends that

															"the Fifth Amendment prohibition against compulsory
self-incrimination applies as well to personal business papers
seized from his offices as it does to the same papers being
required to be produced under a subpoena."

															Brief for Petitioner 9. He bases his argument, naturally, on
dicta in a number of cases which imply, or state, that the search
for and seizure of a person's private papers violate the privilege
against self-incrimination. Thus, in Boyd v. United
States, 116 U. S. 616 , 116 U. S. 633 (1886), the Court said:

															"[W]e have been unable to perceive that the seizure of a man's
private books and papers to be used in evidence against him is
substantially different from compelling him to be a witness against
himself."

															And in Hale v. Henkel, 201 U. S.
43 , 201 U. S. 76 (1906), it was observed that

															"the substance of the offense is the compulsory production of
private Page 427 U. S. 472 papers, whether under a search warrant or a subpoena duces
tecum, against which the person . . . is entitled to
protection."

															We do not agree, however, that these broad statements compel
suppression of this petitioner's business records as a violation of
the Fifth Amendment. In the very recent case of Fisher v.
United States, 425 U. S. 391 (1976), the Court held that an attorney's production, pursuant to a
lawful summons, of his client's tax records in his hands did not
violate the Fifth Amendment privilege of the taxpayer,

															"because enforcement against a taxpayer's lawyer would not
'compel' the taxpayer to do anything -- and certainly would not
compel him to be a 'witness' against himself." Id. at 425 U. S. 397 .
We recognized that the continued validity of the broad statements
contained in some of the Court's earlier cases had been discredited
by later opinions. Id. at 425 U. S.
407 -409. In those earlier cases, the legal predicate for
the inadmissibility of the evidence seized was a violation of the
Fourth Amendment; the unlawfulness of the search and seizure was
thought to supply the compulsion of the accused necessary to invoke
the Fifth Amendment. [ Footnote
6 ] Compulsion of the accused was also absent in Couch v. United
States , Page 427 U. S. 473 409 U. S. 322 (1973), where the Court held that a summons served on a taxpayer's
accountant requiring him to produce the taxpayer's personal
business records in his possession did not violate the taxpayer's
Fifth Amendment rights. [ Footnote
7 ]

															Similarly, in this case, petitioner was not asked to say or to
do anything. The records seized contained statements that
petitioner had voluntarily committed to writing. The search for and
seizure of these records were conducted by law enforcement
personnel. Finally, when these records were introduced at trial,
they were authenticated by a handwriting expert, not by petitioner.
Any compulsion of petitioner to speak, other than the inherent
psychological pressure to respond at trial to unfavorable evidence,
was not present.

															This case thus falls within the principle stated by Mr. Justice
Holmes: "A party is privileged from producing the evidence, but not
from its production." Johnson v. United States, 228 U. S. 457 , 228 U. S. 458 (1913). This principle recognizes that the protection afforded by
the Self-Incrimination Clause of the Fifth Amendment "adheres
basically to the person, not to information that may incriminate
him." Couch v. United States, 409 U.S. at 409 U. S. 328 .
Thus, although the Fifth Amendment may protect an individual from
complying with a subpoena for the Page 427 U. S. 474 production of his personal records in his possession because the
very act of production may constitute a compulsory authentication
of incriminating information, see Fisher v. United States,
supra, a seizure of the same materials by law enforcement
officers differs in a crucial respect -- the individual against
whom the search is directed is not required to aid in the
discovery, production, or authentication of incriminating
evidence.

															A contrary determination that the seizure of a person's business
records and their introduction into evidence at a criminal trial
violates the Fifth Amendment, would undermine the principles
announced in earlier cases. Nearly a half century ago, in Marron v. United States, 275 U. S. 192 (1927), the Court upheld, against both Fourth and Fifth Amendment
claims, the admission into evidence of business records seized
during a search of the accused's illegal liquor business. And in Abel v. United States, 362 U. S. 217 (1960), the Court again upheld, against both Fourth and Fifth
Amendment claims, the introduction into evidence at an espionage
trial of false identity papers and a coded message seized during a
search of the accused's hotel room. These cases recognize a general
rule:

															"There is no special sanctity in papers, as distinguished from
other forms of property, to render them immune from search and
seizure, if only they fall within the scope of the principles of
the cases in which other property may be seized, and if they be
adequately described in the affidavit and warrant." Gouled v. United States, 255 U.
S. 298 , 255 U. S. 309 (1921).

															Moreover, a contrary determination would prohibit the admission
of evidence traditionally used in criminal cases and traditionally
admissible despite the Fifth Amendment. For example, it would bar
the admission of an accused's gambling records in a prosecution
for Page 427 U. S. 475 gambling; a note given temporarily to a bank teller during a
robbery and subsequently seized in the accused's automobile or home
in a prosecution for bank robbery; and incriminating notes
prepared, but not sent, by an accused in a kidnaping or blackmail
prosecution.

															We find a useful analogy to the Fifth Amendment question in
those cases that deal with the "seizure" of oral communications. As
the Court has explained,

															"'[t]he constitutional privilege against self-incrimination . .
. is designed to prevent the use of legal process to force from the
lips of the accused individual the evidence necessary to convict
him or to force him to produce and authenticate any personal
documents or effects that might incriminate him.'" Bellis v. United States, 417 U.S. at 417 U. S. 88 ,
quoting United States v. White, 322 U.S. at 322 U. S. 698 .
The significant aspect of this principle was apparent and applied
in Hoffa v. United States, 385 U.
S. 293 (1966), where the Court rejected the contention
that an informant's "seizure" of the accused's conversation with
him, and his subsequent testimony at trial concerning that
conversation, violated the Fifth Amendment. The rationale was that,
although the accused's statements may have been elicited by the
informant for the purpose of gathering evidence against him, they
were made voluntarily. We see no reasoned distinction to be made
between the compulsion upon the accused in that case and the
compulsion in this one. In each, the communication, whether oral or
written, was made voluntarily. The fact that seizure was
contemporaneous with the communication in Hoffa but
subsequent to the communication here does not affect the question
whether the accused was compelled to speak.

															Finally, we do not believe that permitting the introduction into
evidence of a person's business records seized during an otherwise
lawful search would offend or undermine Page 427 U. S. 476 any of the policies undergirding the privilege. Murphy v.
Waterfront Comm'n, 378 U. S. 52 , 378 U. S. 55 (1964). [ Footnote 8 ] In this
case, petitioner, at the time he recorded his communication, at the
time of the search, and at the time the records were admitted at
trial, was not subjected to "the cruel trilemma of self-accusation,
perjury or contempt." Ibid. Indeed, he was never required
to say or to do anything under penalty of sanction. Similarly,
permitting the admission of the records in question does not
convert our accusatorial system of justice into an inquisitorial
system.

															"The requirement of specific charges, their proof beyond a
reasonable doubt, the protection of the accused from confessions
extorted through whatever form of police pressures, the right to a
prompt hearing before a magistrate, the right to assistance of
counsel, to be supplied by government when circumstances make it
necessary, the duty to advise an accused of his constitutional
rights -- these are all characteristics of the accusatorial system,
and manifestations of its demands." Watts v. Indiana, 338 U. S. 49 , 338 U. S. 54 (1949). None of these Page 427 U. S. 477 attributes is endangered by the introduction of business records
"independently secured through skillful investigation." Ibid. Further, the search for and seizure of business
records pose no danger greater than that inherent in every search
that evidence will be "elicited by inhumane treatment and abuses."
378 U.S. at 378 U. S. 55 . In
this case, the statements seized were voluntarily committed to
paper before the police arrived to search for them, and petitioner
was not treated discourteously during the search. Also, the "good
cause" to "disturb," ibid., petitioner was independently
determined by the judge who issued the warrants; and the State bore
the burden of executing them. Finally, there is no chance, in this
case, of petitioner's statements being self-deprecatory and
untrustworthy because they were extracted from him -- they were
already in existence, and had been made voluntarily. We recognize,
of course, that the Fifth Amendment protects privacy to some
extent. However, "the Court has never suggested that every invasion
of privacy violates the privilege." Fisher v. United
States, 425 U.S. at 425 U. S. 399 .
Indeed, we recently held that, unless incriminating testimony is
"compelled," any invasion of privacy is outside the scope of the
Fifth Amendment's protection, saying that "the Fifth Amendment
protects against compelled self-incrimination, not [the
disclosure of] private information.'" Id. at 425 U. S. 401 .
Here, as we have already noted, petitioner was not compelled to
testify in any manner. Accordingly, we hold that the search of an
individual's office for business records, their seizure, and
subsequent introduction into evidence do not offend the Fifth
Amendment's proscription that "[n]o person . . . shall be compelled
in any criminal case to be a witness against himself." Page 427 U. S. 478 III We turn next to petitioner's contention that rights guaranteed
him by the Fourth Amendment were violated because the descriptive
terms of the search warrants were so broad as to make them
impermissible "general" warrants, and because certain items were
seized in violation of the principles of Warden v. Hayden, 387 U. S. 294 (1967). [ Footnote 9 ] Page 427 U. S. 479 The specificity of the search warrants. Although
petitioner concedes that the warrants, for the most part, were
models of particularity, Brief for Petitioner 28, he contends that
they were rendered fatally "general" by the addition, in each
warrant, to the exhaustive list of particularly described
documents, of the phrase "together with other fruits,
instrumentalities and evidence of crime at this [time] unknown."
App. A. 95-A. 96, A. 115. The quoted language, it is argued, must
be read in isolation and without reference to the rest of the long
sentence at the end of which it appears. When Page 427 U. S. 480 read "properly," petitioner contends, it permits the search for
and seizure of any evidence of any crime.

															General warrants, of course, are prohibited by the Fourth
Amendment.

															"[T]he problem [posed by the general warrant] is not that of
intrusion per se, but of a general, exploratory rummaging
in a person's belongings. . . . [The Fourth Amendment addresses the
problem] by requiring a 'particular description' of the things to
be seized." Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S. 467 (1971). This requirement

															"'makes general searches . . . impossible and prevents the
seizure of one thing under a warrant describing another. As to what
is to be taken, nothing is left to the discretion of the officer
executing the warrant.'" Stanford v. Texas, 379 U. S. 476 , 379 U. S. 485 (1965), quoting Marron v. United States, 275 U.S. at 275 U. S.
196 .

															In this case, we agree with the determination of the Court of
Special Appeals of Maryland that the challenged phrase must be read
as authorizing only the search for and seizure of evidence relating
to "the crime of false pretenses with respect to Lot 13T." 24
Md.App. at 167, 331 A.2d at 103. The challenged phrase is not a
separate sentence. Instead, it appears in each warrant at the end
of a sentence containing a lengthy list of specified and particular
items to be seized, all pertaining to Lot 13T. [ Footnote 10 ] We think it clear from the
context Page 427 U. S. 481 that the term "crime" in the warrants refers only to the crime
of false pretenses with respect to the sale of Lot 13T. The "other
fruits" clause is one of a series that follows the colon after the
word "Maryland." All clauses in the series are limited by what
precedes that colon, namely, "items pertaining to . . . lot 13,
block T." The warrants, accordingly, did not authorize the
executing officers to conduct a search for evidence of Page 427 U. S. 482 other crimes but only to search for and seize evidence relevant
to the crime of false pretenses and Lot 13T. [ Footnote 11 ] The admissibility of certain items of evidence in light of
Warden v. Hayden. Petitioner charges that the seizure of
documents pertaining to a lot other than Lot 13T violated the
principles of Warden v. Hayden, and therefore should have
been suppressed. His objection appears to be that these papers were
not relevant to the Lot 13T charge, and were admissible only to
prove another crime with which he was charged after the search. The
fact that these documents were used to help form the evidentiary
basis for another charge, it is argued, shows that the documents
were seized solely for that purpose.

															The State replies that Warden v. Hayden was not
violated, and that this is so because the challenged evidence is
relevant to the question whether petitioner committed the crime of
false pretenses with respect to Lot 13T. In Maryland, the crime is
committed when a person Page 427 U. S. 483 makes a false representation of a past or existing fact, with
intent to defraud and knowledge of its falsity, and obtains any
chattel, money, or valuable security from another, who relies on
the false representation o his detriment. Polisher v.
State, 11 Md.App. 555, 560, 276 A.2d 102 , 104 (1971). Thus, the State is required to prove
intent to defraud beyond a reasonable doubt. The State consequently
argues that the documents pertaining to another lot in the Potomac
Woods subdivision demonstrate that the misrepresentation with
respect to Lot 13T was not the result of mistake on the part of
petitioner.

															In Warden v. Hayden, 387 U.S. at 387 U. S. 307 ,
the Court stated that, when the police seize

															"'mere evidence,' probable cause must be examined in terms of
cause to believe that the evidence sought will aid in a particular
apprehension or conviction. In so doing, consideration of police
purposes will be required."

															In this case, we conclude that the trained special investigators
reasonably could have believed that the evidence specifically
dealing with another lot in the Potomac Woods subdivision could be
used to show petitioner's intent with respect to the Lot 13T
transaction.

															The Court has often recognized that proof of similar acts is
admissible to show intent or the absence of mistake. In Nye
& Nissen v. United States, 336 U.
S. 613 (1949), for example, a case involving a scheme of
fraudulent conduct, it was said:

															"The evidence showed the presentation of eleven other false
invoices. . . . The trial court also admitted it at the conclusion
of the case 'for the sole purpose of proving guilty intent, motive,
or guilty knowledge' of the defendants. Evidence that similar and
related offenses were committed in this period tended to show a
consistent pattern of conduct highly relevant to the issue of
intent." Id. at 336 U. S.
618 . Page 427 U. S. 484 In the present case, when the special investigators secured the
search warrants, they had been informed of a number of similar
charges against petitioner arising out of Potomac Woods
transactions. And, by reading numerous documents and records
supplied by the Lot 13T and other complainants, and by interviewing
witnesses, they had become familiar with petitioner's method of
operation. Accordingly, the relevance of documents pertaining
specifically to a lot other than Lot 13T, and their admissibility
to show the Lot 13T offense, would have been apparent. Lot 13T and
the other lot had numerous features in common. Both were in the
same section of the Potomac Woods subdivision; both had been owned
by the same person; and transactions concerning both had been
handled extensively by petitioner. Most important was the fact that
there were two deeds of trust in which both lots were listed as
collateral. Unreleased liens respecting both lots were evidenced by
these deeds of trusts. Petitioner's transactions relating to the
other lot, subject to the same liens as Lot 13T, therefore, were
highly relevant to the question whether his failure to deliver
title to Lot 13T free of all encumbrances was mere inadvertence.
Although these records subsequently were used to secure additional
charges against petitioner, suppression of this evidence in this
case was not required. The fact that the records could be used to
show intent to defraud with respect to Lot 13T permitted the
seizure and satisfied the requirements of Warden v.
Hayden. The judgment of the Court of Special Appeals of Maryland is
affirmed. It is so ordered. [ Footnote 1 ]

															Before these search warrants were executed, the Bi-County Fraud
Unit had also received complaints concerning other Potomac Woods
real estate transactions conducted by petitioner. The gist of the
complaints was that petitioner, as settlement attorney, took money
from three sets of home purchasers upon assurances that he would
use it to procure titles to their properties free and clear of all
encumbrances. It was charged that he had misappropriated the money
so that they had not received clear title to the properties as
promised.

															[ Footnote 2 ]

															It is established that the privilege against self-incrimination
may not be invoked with respect to corporate records. Bellis v.
United States, 417 U. S. 85 , 417 U. S. 88 -89
(1974); Grant v. United States, 227 U. S.
74 (1913); Hale v. Henkel, 201 U. S.
43 , 201 U. S. 70 (1906). It appears, however, that the records seized at the
corporation's office were really not corporate records, but were
records generated by petitioner's practice as a real estate lawyer.
United States Appendix of Exhibits 1-3.

															[ Footnote 3 ]

															This item was introduced as proof that petitioner failed to pay
recording taxes, a charge that was abandoned before the case was
submitted to the jury.

															[ Footnote 4 ]

															The Solicitor General, in an amicus brief filed with
this Court, has suggested that the evidence forming the basis of
two of the counts of misappropriation by a fiduciary, which were
upheld on appeal, was obtained entirely from sources other than
petitioner's offices. Brief for United States as Amicus
Curiae 12-14, 24-25, n. 17. This fact, if true, does not, of
course, affect our jurisdiction, but it would permit us to apply
the discretionary concurrent sentence doctrine, Benton v.
Maryland, 395 U. S. 784 , 395 U. S. 791 (1969), and thereby decline to consider petitioner's constitutional
claims. Barnes v. United States, 412 U.
S. 837 , 412 U. S. 848 n. 16 (1973).

															[ Footnote 5 ]

															Both the trial and appellate courts in this case recognized the
conflict among the Federal Courts of Appeals over whether
documentary evidence not obtainable by means of a subpoena or a
summons may be obtained by means of a search warrant. Thus, in Hill v. Philpott, 445 F.2d 144 (CA7), cert.
denied, 404 U.S. 991 (1971), the Court of Appeals held that
evidence not obtainable by means of a subpoena could not be seized
by means of a search warrant. The substantial majority position is
of the opposite view. Shaffer v. Wilson, 523 F.2d 175
(CA10 1975), cert. pending, No. 75-601; United States
v. Murray, 492 F.2d 178, 191 (CA9 1973); Taylor v.
Minnesota, 466 F.2d 1119 (CA8 1972), cert. denied, 410 U.S. 956 (1973); United States v. Blank, 459 F.2d 383
(CA6), cert. denied, 409 U.S. 887 (1972); United
States v. Scharfman, 448 F.2d 1352 (CA2 1971), cert.
denied, 405 U.S. 919 (1972); United States v.
Bennett, 409 F.2d 888, 896 (CA2), cert. denied sub nom.
Jessup v. United States, 396 U.S. 852 (1969). The majority
position accords with the views of Wigmore. 8 J. Wigmore, Evidence
§ 2264, p 380 (McNaughton Rev.1961).

															The Court of Special Appeals adopted the majority position and,
therefore, upheld the admission of the records into evidence.

															[ Footnote 6 ]

															In Boyd v. United States, 116 U.
S. 616 (1886), for example, it was held that the
Government could not, consistently with the Fourth Amendment,
obtain "mere evidence" from the accused; accordingly, a subpoena
seeking "mere evidence" constituted compulsion of the accused
against which he could invoke the Fifth Amendment. The "mere
evidence" rule was overturned in Warden v. Hayden, 387 U. S. 294 , 387 U. S.
301 -302 (1967).

															The "convergence theory" of the Fourth and Fifth Amendments is
also illustrated by Agnello v. United States, 269 U. S.
20 (1925), where the seizure of contraband pursuant to a
search not incident to arrest and otherwise unlawful in violation
of the Fourth Amendment was held to permit the accused to invoke
the Fifth Amendment when the Government sought to introduce this
evidence in a criminal proceeding against him.

															[ Footnote 7 ]

															Petitioner relies on the statement in Couch that
"possession bears the closest relationship to the personal
compulsion forbidden by the Fifth Amendment," 409 U.S. at 409 U. S. 331 ,
in support of his argument that possession of incriminating
evidence itself supplies the predicate for invocation of the
privilege. Couch, of course, was concerned with the
production of documents pursuant to a summons directed to the
accountant where there might have been a possibility of compulsory
self-incrimination by the principal's implicit or explicit
"testimony" that the documents were those identified in the
summons. The risk of authentication is not present where the
documents are seized pursuant to a search warrant.

															[ Footnote 8 ]

															"The privilege against self-incrimination . . . reflects many of
our fundamental values and most noble aspirations: our
unwillingness to subject those suspected of crime to the cruel
trilemma of self-accusation, perjury or contempt; our preference
for an accusatorial, rather than an inquisitorial, system of
criminal justice; our fear that self-incriminating statements will
be elicited by inhumane treatment and abuses; our sense of fair
play which dictates"

															"a fair state-individual balance by requiring the government to
leave the individual alone until good cause is shown for disturbing
him and by requiring the government in its contest with the
individual to shoulder the entire load . . . ;"

															"our respect for the inviolability of the human personality and
of the right of each individual 'to a private enclave where he may
lead a private life' . . . ; our distrust of self-deprecatory
statements; and our realization that the privilege, while sometimes
'a shelter to the guilty,' is often 'a protection to the
innocent.'"

															[ Footnote 9 ]

															Petitioner also contends that the affidavits do not establish
probable cause, and that the failure of the State formally to
introduce the warrants into evidence violated his constitutional
rights. These contentions may be disposed of summarily.

															The bases of petitioner's argument that the affidavits failed to
establish probable cause are two: the affidavits, in violation of Aguilar v. Texas, 378 U. S. 108 (1964), did not establish the reliability of the information or the
credibility of the informants; and the information on which they
were based was so stale that there was no reason to believe that
the documents sought were still in petitioner's possession.

															The affidavits clearly establish the reliability of the
information related and the credibility of its sources. The
complainants are named, their positions are described, and their
transactions with petitioner are related in a comprehensive
fashion. In addition, the special agent affiants aver that they
have verified, at least in part, the complainants' charges by
examining their correspondence with petitioner, numerous documents
reflecting the transactions, and public land records. Copies of
many of these records and documents are attached to the affidavits;
others are described in detail. Finally, the agents aver that they
have interviewed, with positive results, other persons involved in
the real estate transactions that were the object of the
investigation. Rarely have we seen warrant-supporting affidavits so
complete and so thorough. Petitioner's probable cause argument is
without merit. See United States v. Ventresca, 380 U. S. 102 (1965).

															It is also argued that there was a three-month delay between the
completion of the transactions on which the warrants were based,
and the ensuing searches, and that this time lapse precluded a
determination that there was probable cause to believe that
petitioner's offices contained evidence of the crime. This
contention is belied by the particular facts of the case. The
business records sought were prepared in the ordinary course of
petitioner's business in his law office or that of his real estate
corporation. It is eminently reasonable to expect that such records
would be maintained in those offices for a period of time, and
surely as long as the three months required for the investigation
of a complex real estate scheme. In addition, special investigators
knew that petitioner had secured a release on Lot 13T with respect
to one lienholder only three weeks before the searches, and that
another lien remained to be released. All this, when considered
with other information demonstrating that Potomac Woods was still a
current concern of petitioner, amply supports the belief that
petitioner retained the sought-for records.

															The final contention is that, under Bumper v. North
Carolina, 391 U. S. 543 , 391 U. S. 550 n. 15 (1968), the failure of the prosecution formally to introduce
the warrants into evidence precludes the State from relying upon
them to justify the searches. We reject the argument for two
reasons. First, it appears that petitioner based this claim of
error solely on state grounds in the Court of Special Appeals.
Second, even if the claim is properly before us, it fails. Both the
State and the petitioner referred to and extensively discussed the
language and terms of the warrants during the suppression hearing,
and the trial judge, in deciding the motion to suppress, made
numerous references to the warrants. The present case, therefore,
is a far cry from Bumper, where the prosecution's
assertion that it had a search warrant was made for the first time
during oral argument before this Court. There is nothing in the
Fourth Amendment that requires us so to exalt formalism over
substance.

															[ Footnote 10 ]

															"[T]he following items pertaining to sale, purchase, settlement
and conveyance of lot 13, block T, Potomac Woods subdivision,
Montgomery County, Maryland:"

															"title notes, title abstracts, title rundowns; contracts of sale
and/or assignments from Raffaele Antonelli and Rocco Caniglia to
Mount Vernon Development Corporation and/or others; lien payoff
correspondence and lien pay-off memoranda to and from lienholders
and noteholders; correspondence and memoranda to and from trustees
of deeds of trust; lenders instructions for a construction loan or
construction and permanent loan; disbursement sheets and
disbursement memoranda; checks, check stubs and ledger sheets
indicating disbursement upon settlement; correspondence and
memoranda concerning disbursements upon settlement; settlement
statements and settlement memoranda; fully or partially prepared
deed of trust releases, whether or not executed and whether or not
recorded; books, records, documents, papers, memoranda and
correspondence, showing or tending to show a fraudulent intent,
and/or knowledge as elements of the crime of false pretenses, in
violation of Article 27, Section 140, of the Annotated Code of
Maryland, 1957 Edition, as amended and revised, together with other
fruits, instrumentalities and evidence of crime at this [time]
unknown."

															App. A. 95-A. 96, A. 115.

															Petitioner also suggests that the specific list of the documents
to be seized constitutes a "general" warrant. We disagree. Under
investigation was a complex real estate scheme whose existence
could be proved only by piecing together many bits of evidence.
Like a jigsaw puzzle, the whole "picture" of petitioner's
false-pretense scheme with respect to Lot 13T could be shown only
by placing in the proper place the many pieces of evidence that,
taken singly, would show comparatively little. The complexity of an
illegal scheme may not be used as a shield to avoid detection when
the State has demonstrated probable cause to believe that a crime
has been committed and probable cause to believe that evidence of
this crime is in the suspect's possession. The specificity with
which the documents are named here contrasts sharply with the
absence of particularity in Berger v. New York, 388 U. S. 41 , 388 U. S. 5 59
(1967), where a state eavesdropping statute which authorized
eavesdropping

															"without requiring belief that any particular offense has been
or is being committed; nor that the 'property' sought, the
conversations, be particularly described,"

															was invalidated.

															[ Footnote 11 ]

															The record discloses that the officials executing the warrants
seized numerous papers that were not introduced into evidence.
Although we are not informed of their content, we observe that, to
the extent such papers were not within the scope of the warrants or
were otherwise improperly seized, the State was correct in
returning them voluntarily, and the trial judge was correct in
suppressing others.

															We recognize that there are grave dangers inherent in executing
a warrant authorizing a search and seizure of a person's papers
that are not necessarily present in executing a warrant to search
for physical objects whose relevance is more easily ascertainable.
In searches for papers, it is certain that some innocuous documents
will be examined, at least cursorily, in order to determine whether
they are, in fact, among those papers authorized to be seized.
Similar dangers, of course, are present in executing a warrant for
the "seizure" of telephone conversations. In both kinds of
searches, responsible officials, including judicial officials, must
take care to assure that they are conducted in a manner that
minimizes unwarranted intrusions upon privacy.

															MR. JUSTICE BRENNAN, dissenting.

															In a concurring opinion earlier this Term in Fisher v.
United States, 425 U. S. 391 , 425 U. S. 414 (1976), I stated my view Page 427 U. S. 485 that the Fifth Amendment protects an individual citizen against
the compelled production of testimonial matter that might tend to
incriminate him, provided it is matter that comes within the zone
of privacy recognized by the Amendment to secure to the individual
"a private inner sanctum of individual feeling and thought." Couch v. United States, 409 U. S. 322 , 409 U. S. 327 (1973). Accordingly, the production of testimonial material falling
within this zone of privacy may not be compelled by subpoena. The
Court holds today that the search and seizure, pursuant to a valid
warrant, of business records in petitioner's possession and
containing statements made by the petitioner does not violate the
Fifth Amendment. I can perceive no distinction of meaningful
substance between compelling the production of such records through
subpoena and seizing such records against the will of the
petitioner. Moreover, I believe that the warrants under which
petitioner's papers were seized were impermissibly general. I
therefore dissent. [ Footnote
2/1 ] I "There is no question that the records seized from petitioner's
offices and introduced against him were incriminating. Moreover, it
is undisputed that some of these business records contain
statements made by petitioner." Ante at 427 U. S. 471 .
It also cannot be questioned that these records fall within the
zone of privacy protected by the Fifth Amendment. Bellis v.
United States, 417 U. S. 85 , 417 U. S. 87 -88
(1974), squarely recognized that

															"[t]he privilege applies to the business records of the sole
proprietor or sole practitioner Page 427 U. S. 486 as well as to personal documents containing more intimate
information about the individual's private life."

															The Court today retreats from this view. Though recognizing the
value of privacy protected by the Fifth Amendment, see
ante at 427 U. S. 477 ,
and the " right of each individual "to a private enclave where
he may lead a private life,"'" ante at 427 U. S. 476 n. 8, the Court declines, without adequate explanation, to include
business records within that private zone comprising the mere
physical extensions of an individual's thoughts and knowledge. As I
noted in Fisher, the failure to give effect to such a zone
ignores the essential spirit of the Fifth Amendment: "[Business] records are at least an extension of an aspect of a
person's activities, though concededly not the more intimate
aspects of one's life. Where the privilege would have protected
one's mental notes of his business affairs in a less complicated
day and age, it would seem that that protection should not fall
away because the complexities of another time compel one to keep
business records. Cf. Olmstead v. United States, 277 U. S.
438 , 277 U. S. 474 (1928)
(Brandeis, J., dissenting)."

															425 U.S. at 425 U. S.
426 -427 (BRENNAN, J., concurring in judgment).

															As indicated at the outset, today's assault on the Fifth
Amendment is not limited to narrowing this view of the scope of
privacy respected by it. The Court also sanctions circumvention of
the Amendment by indulging an unjustified distinction between
production compelled by subpoena and production secured against the
will of the petitioner through warrant. But a privilege protecting
against the compelled production of testimonial material is a
hollow guarantee where production of that material may be secured
through the expedient of search and seizure.

															The matter cannot be resolved on any simplistic notion of
compulsion. Search and seizure is as rife with Page 427 U. S. 487 elements of compulsion as subpoena. The intrusion occurs under
the lawful process of the State. The individual is not free to
resist that authority. To be sure, as the Court observes,
"[p]etitioner was present during the search of his law office, and
was free to move about," ante at 427 U. S. 466 ,
but I do not believe the Court means to suggest that petitioner was
free to obstruct the investigators' search through his files.
[ Footnote 2/2 ]

															And compulsion does not disappear merely because the individual
is absent at the time of search and seizure. The door to one's
house, for example, is as much the individual's resistance to the
intrusion of outsiders as his personal physical efforts to prevent
the same. To refuse recognition to the sanctity of that door and,
more generally, to confine the dominion of privacy to the mind,
compels an unconstitutional disclosure by denying to the individual
a zone of physical freedom necessary for conducting one's affairs.
True to this principle, a value enshrined by the Fifth Amendment,
the Court carefully observed in Couch that

															"actual possession of documents bears the most significant
relationship to Fifth Amendment protections against governmental
compulsions upon the individual accused of crime,"

															409 U.S. at 409 U. S. 333 ,
and that

															"[w]e do indeed attach constitutional importance to possession,
but only because of its close relationship to those personal
compulsions and intrusions which the Fifth Amendment forbids." Id. at 409 U. S. 336 n. 20. Couch also plainly indicated that it is not
necessary that Page 427 U. S. 488 there be actual possession in order to invoke Fifth Amendment
limitations, for

															"situations may well arise where constructive possession is so
clear or the relinquishment of possession is so temporary and
insignificant as to leave the personal compulsions upon the accused
substantially intact." Id. at 333. [ Footnote
2/3 ]

															Though the records involved in this case were clearly within
petitioner's possession or at least constructive possession, the
Court avoids application of these principles and the values they
protect by what I submit is a mischaracterization of Couch as
concerned with the

															"possibility of compulsory self-incrimination by the principal's
implicit or explicit 'testimony' that the documents were those
identified in the summons." Ante at 427 U. S. 473 n. 7. Whether or not Couch was concerned with this
possibility -- and I believe that even under the most strained
reading it was not -- Couch was clearly concerned with
whether production of documents in the possession of the accused's
accountant pursuant to a summons directed to the accountant
operated personally to compel the accused. It was in this regard
that Couch recognized that "possession bears the closest
relationship to the personal compulsion forbidden by the Fifth
Amendment," Page 427 U. S. 489 409 U.S. at 409 U. S. 331 ,
a matter with which the Court refuses to deal in its treatment of Couch. Couch only reflects the view of a long line of
decisions explicitly recognizing that the seizure of private papers
may violate the Fifth Amendment. As early as Boyd v. United
States, 116 U. S. 616 , 116 U. S. 633 (1886), the Court was

															"unable to perceive that the seizure of a man's private books
and papers to be used in evidence against him is substantially
different from compelling him to be a witness against himself."

															Though the Court in Boyd held that compelling a person
to be a witness against himself was tantamount to an unreasonable
search and seizure, it never required a search and seizure to be
independently unreasonable in order that it violate the Fifth
Amendment. And though the several decisions which have found a
Fifth Amendment violation stemming from a search and seizure all
involved unreasonable search and seizures, it has never been
established, contrary to the Court's assertion, ante at 427 U. S. 472 ,
that the unlawfulness of the search and seizure is necessary to
invoke the Fifth Amendment. Gouled v. United States, 255 U. S. 298 (1921), though also involving a Fourth Amendment violation, makes
it clear that the illegality of the search and seizure is not a
prerequisite for a Fifth Amendment violation. Under Gouled, a Fifth Amendment violation exists because the
"[accused] is the unwilling source of the evidence," id. at 255 U. S. 306 ,
a matter which does not depend on the illegality vel non of the search and seizure. [ Footnote
2/4 ]

															Until today, no decision by this Court had held that the seizure
of testimonial evidence by legal process did Page 427 U. S. 490 not violate the Fifth Amendment. Indeed, with few exceptions,
[ Footnote 2/5 ] the indications were
strongly to the contrary. See, e.g., United States v.
Lefkowitz, 285 U. S. 452 , 285 U. S.
465 -467 (1932); Weeks v. United States, 232 U. S. 383 , 232 U.S. 397 (1914); Hale v. Henkel, 201 U. S. 43 , 201 U. S. 76 (1906). [ Footnote 2/6 ] More Page 427 U. S. 491 recently, Shmerber v. California, 384 U.
S. 757 , 384 U. S. 767 (1966), noted that the "values protected by the Fourth Amendment .
. . substantially overlap those the Fifth Amendment helps to
protect," and clearly indicated that, in considering whether to
suppress seized evidence, a first inquiry is whether its
testimonial nature, if any, precludes its introduction in evidence. See id. at 384 U. S.
760 -765. Subsequent to Schmerber, Warden v.
Hayden, 387 U. S. 294 , 387 U. S.
302 -303 (1967), carefully observed that the items of
clothing seized in that case were

															"not 'testimonial' or 'communicative' in nature, and their
introduction therefore did not compel respondent to become a
witness against himself in violation of the Fifth Amendment.
[ Footnote 2/7 ]"

															These cases all reflect the root understanding of Boyd v.
United States, 116 U.S. at 116 U. S.
630 :

															"It is not the breaking of his doors, and the rummaging of his
drawers, that constitutes the essence of the offence [to the Fifth
Amendment]; but it is the invasion of his indefeasible right of
personal security, personal liberty Page 427 U. S. 492 and private property. . . . [A]ny forcible and compulsory
extortion of a man's own testimony or of his private papers to be
used as evidence to convict him of crime . . . is within the
condemnation of [the Amendment]. In this regard, the Fourth and
Fifth Amendments run almost into each other." II Even if a Fifth Amendment violation is not to be recognized in
the seizure of petitioner's papers, a violation of Fourth Amendment
protections clearly should be, for the warrants under which those
papers were seized were impermissibly general. General warrants are
especially prohibited by the Fourth Amendment. The problem to be
avoided is "not that of intrusion per se, but of a
general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S. 467 (1971). Thus, the requirement plainly appearing on the face of the
Fourth Amendment that a warrant specify with particularity the
place to be searched and the things to be seized is imposed to the
end that "unauthorized invasions of the sanctity of a man's
home and the privacies of life'" be prevented. Berger v. New
York, 388 U. S. 41 , 388 U. S. 58 (1967). "`As to what is to be taken, nothing is left to the
discretion of the officer executing the warrant.'" Stanford v.
Texas, 379 U. S. 476 , 379 U. S. 485 (1965) (quoting Marron v. United States, 275 U.
S. 192 , 275 U. S. 196 (1927)). The Court recites these requirements, but their application in
this case renders their limitation on unlawful governmental conduct
an empty promise. After a lengthy and admittedly detailed listing
of items to be seized, the warrants in this case further authorized
the seizure of "other fruits, instrumentalities and evidence of
crime at this [time] unknown." App. A. 96, A. 115. The Court
construes this sweeping authorization to be Page 427 U. S. 493 limited to evidence pertaining to the crime of false pretenses
with respect to the sale of Lot 13T. However, neither this Court's
construction of the warrants nor the similar construction by the
Court of Special Appeals of Maryland was available to the
investigators at the time they executed the warrants. The question
is not how those warrants are to be viewed in hindsight, but how
they were in fact viewed by those executing them. The overwhelming
quantity of seized material that was either suppressed or returned
to petitioner is irrefutable testimony to the unlawful generality
of the warrants. [ Footnote 2/8 ] The
Court's attempt to cure this defect by post hoc judicial
construction evades principles settled in this Court's Fourth
Amendment decisions.

															"The scheme of the Fourth Amendment becomes meaningful only when
it is assured that at some point the conduct of those charged with
enforcing the laws can be subjected to the more detached, neutral
scrutiny of a judge. . . ." Terry v. Ohio, 392 U. S. 1 , 392 U. S. 21 (1968). See Berger v. New York, supra at 388 U. S. 54 ; Johnson v. United States, 333 U. S.
10 , 333 U. S. 13 -14
(1948). It is not the function of a detached and neutral review to
give effect to warrants whose terms unassailably authorize the
far-reaching search and seizure of a person's papers, especially
where that has in fact been the result of executing those
warrants.

															[ Footnote 2/1 ]

															Today's decision is doubtless consistent with the recent trend
of decisions to eviscerate Fourth Amendment protections. See,
e.g., Texas v. White, 423 U. S. 67 (1975); United States v. Miller, 425 U.
S. 435 (1976); United States v. Watson, 423 U. S. 411 (1976); United States v. Santana, ante p. 427 U. S. 38 .

															[ Footnote 2/2 ]

															There is no meaningful distinction between requiring petitioner
in this case to stand idly by while papers are extracted from his
files and requiring the petitioner in Schmerber v.
California, 384 U. S. 757 (1966), similarly to submit to the extraction of blood from his
body. In either case, seizure is obtained by compulsion, yet, in Schmerber, unlike here, Fifth Amendment limitations were
recognized as applicable.

															[ Footnote 2/3 ]

															Similarly, I recognized writing separately in Couch: "[S]urely the availability of the Fifth Amendment privilege
cannot depend on whether or not the owner of the documents is
compelled personally to turn the documents over to the Government.
If private, testimonial documents held in the owner's own
possession are privileged under the Fifth Amendment, then the
Government cannot nullify that privilege by finding a way to obtain
the documents without requiring the owner to take them in hand and
personally present them to the Government agents. Where the
Government takes private records from, for example, a safety
deposit box against the will of the owner of the documents, the
owner has been compelled, in my view, to incriminate himself within
the meaning of the Fifth Amendment."

															409 U.S. at 409 U. S. 337 n. (concurring).

															[ Footnote 2/4 ]

															As the Court notes, ante at 427 U. S. 474 , Gouled also observed that there is no special sanctity in
papers rendering them immune from search and seizure. 255 U.S. at 255 U. S. 309 .
The observation, however, was hedged with qualifications, see
ibid., and Gouled itself makes clear that this was
only a general proposition inapplicable in the case of private
papers. See id. at 255 U. S.
306 .

															[ Footnote 2/5 ]

															The Court cites Marron v. United States, 275 U.
S. 192 (1927), as one exception, that decision having
permitted the seizure of business records during the search of an
illegal liquor business. Marron, however, provides little,
if any, foundation for the Court's view. Though erring in the light
of subsequent cases, the Court there did not view the business
records as private papers or testimonial evidence. Rather, the
records were viewed merely as "a part of the outfit or equipment
actually used to commit the offense." Id. at 275 U. S. 199 .
Moreover, the aspect of Marron upon which the Court relies
was clearly overruled in United States v. Lefkowitz, 285 U. S. 452 (1932) -- the ostensible effort in Lefkowitz to
distinguish it from Marron notwithstanding.

															The Court also cites Abel v. United States, 362 U. S. 217 (1960), as supporting its position that private testimonial papers
may be seized without violating the Fifth Amendment. The papers
seized in that case, however, even if fairly characterizable as
private and testimonial -- a matter about which I have doubt --
were not admitted for the purpose of utilizing their testimonial
contents as evidence.

															Finally, this Court's wiretapping cases also lend little support
to the Court's position. Two of those cases expressly recognized
the danger to Fifth Amendment rights posed by wiretapping. See
Berger v. New York, 388 U. S. 41 , 388 U. S. 56 , 62
(1967); Osborn v. United States, 385 U.
S. 323 , 385 U. S. 329 n. 7 (1966). All cases permitting seizure have involved
conversations between two or more parties under other than what
could be considered confidential circumstances. Grave questions
would be raised, however, where conversations are seized from the
privacy of the home or where the conversations are between parties
who speak at other than arm's length. In such circumstances there
is danger that the zone of privacy recognized by the Fifth
Amendment will have been invaded. See Olmstead v. United
States, 277 U. S. 438 , 277 U. S.
471 -479 (1928) (Brandeis, J., dissenting).

															[ Footnote 2/6 ]

															Though one component of the rationale in these cases precluding
the seizure of papers appears to be the "mere evidence" rule, which
was repudiated in Warden v. Hayden, 387 U.
S. 294 (1967), they also view such seizures as
tantamount to the compulsion of testimony, an unlawful act
conceptually distinct from the once unlawful act of seizing mere
evidence. United States v. Lefkowitz, supra at 285 U. S.
466 -467, for example, reiterates Boyd's condemnation of the compulsory extraction of a man's private
papers. Similarly, Weeks v. United States, 232 U.S. at 232 U.S. 397 , recognized
that the seizure of a man's papers was an offense because it
constituted the compulsory production of private papers.
Accordingly, the doctrinal demise of the "mere evidence" rule left
untouched the principles of these cases respecting the Fifth
Amendment. See Fisher v. United States, 425 U.
S. 391 , 425 U. S.
420 -422, n. 5 (1976) (BRENNAN, J., concurring in
judgment).

															[ Footnote 2/7 ]

															By further observing that

															"[t]his case thus does not require that we consider whether
there are items of evidential value whose very nature precludes
them from being the object of a reasonable search and seizure,"

															387 U.S. at 387 U. S. 303 , Hayden, at the very least, clearly left open the question
whether lawful seizure of testimonial evidence violated the Fifth
Amendment.

															[ Footnote 2/8 ]

															Testimony by investigators at the suppression hearing requested
by the petitioner indicates that seizure of many of his papers
occurred indiscriminately. See App. A. 155, A. 156.

															MR. JUSTICE MARSHALL, dissenting.

															I agree with MR. JUSTICE BRENNAN that the business records
introduced at petitioner's trial should have been suppressed
because they were seized pursuant to a general warrant.
Accordingly, I need not consider Page 427 U. S. 494 whether petitioner's alternative contention -- that the Fifth
Amendment precludes the seizure of private papers, even pursuant to
a warrant -- can survive Fisher v. United States, 425 U. S. 391 (1976), and, if so, whether this Fifth Amendment argument would
protect the business records seized in this case.