U.S. Supreme Court Chimel v. California, 395
U.S. 752 (1969) Chimel v. California No. 770 Argued March 27, 1969 Decided June 23, 1969 395
U.S. 752 CERTIORARI TO THE SUPREME COURT OF
CALIFORNIA Syllabus Police officers, armed with an arrest warrant but not a search
warrant, were admitted to petitioner's home by his wife, where they
awaited petitioner's arrival. When he entered, he was served with
the warrant. Although he denied the officers' request to "look
around," they conducted a search of the entire house "on the basis
of the lawful arrest." At petitioner's trial on burglary charges,
items taken from his home were admitted over objection that they
had been unconstitutionally seized. His conviction was affirmed by
the California appellate courts, which held, despite their
acceptance of petitioner's contention that the arrest warrant was
invalid, that, since the arresting officers had procured the
warrant "in good faith," and since, in any event, they had had
sufficient information to constitute probable cause for the arrest,
the arrest was lawful. The courts also held that the search was
justified as incident to a valid arrest. Held: Assuming the arrest was valid, the warrantless
search of petitioner's house cannot be constitutionally justified
as incident to that arrest. Pp. 395 U. S.
755 -768.

															(a) An arresting officer may search the arrestee's person to
discover and remove weapons and to seize evidence to prevent its
concealment or destruction, and may search the area "within the
immediate control" of the person arrested, meaning the area from
which he might gain possession of a weapon or destructible
evidence. Pp. 395 U. S.
762 -763.

															(b) For the routine search of rooms other than that in which an
arrest occurs, or for searching desk drawers or other closed or
concealed areas in that room itself, absent well recognized
exceptions, a search warrant is required. P. 395 U. S.
763 .

															(c) While the reasonableness of a search incident to arrest
depends upon "the facts and circumstances -- the total atmosphere
of the case," those facts and circumstances must be viewed in the
light of established Fourth Amendment principles, and the only
reasoned distinction is one between (1) a search of the person
arrested and the area within his reach, and (2) more extensive
searches. Pp. 395 U. S.
765 -766. Page 395 U. S. 753 (d) United Ste v. Rabinowitz, 339 U. S.
56 , and Harris v. United States, 331 U.
S. 145 , on their facts, and insofar as the principles
they stand for are inconsistent with this decision, are no longer
to be followed. P. 395 U. S.
768 .

															(e) The scope of the search here was unreasonable under the
Fourth and Fourteenth Amendments, as it went beyond petitioner's
person and the area from within which he might have obtained a
weapon or something that could have been used as evidence against
him, and there was no constitutional justification, in the absence
of a search warrant, for extending the search beyond that area. P. 395 U. S.
768 . 68 Cal. 2d
436 , 439 P.2d 333, reversed.

															MR. JUSTICE STEWART delivered the opinion of the Court.

															This case raises basic questions concerning the permissible
scope under the Fourth Amendment of a search incident to a lawful
arrest.

															The relevant facts are essentially undisputed. Late in the
afternoon of September 13, 1965, three police officers arrived at
the Santa Ana, California, home of the petitioner with a warrant
authorizing his arrest for the burglary of a coin shop. The
officers knocked on the door, identified themselves to the
petitioner's wife, and asked if they might come inside. She ushered
them into the house, where they waited 10 or 15 minutes until the
petitioner returned home from work. When the petitioner entered the
house, one of the officers handed him the arrest warrant and asked
for permission to "look around." The petitioner objected, but was
advised that, Page 395 U. S. 754 "on the basis of the lawful arrest," the officers would
nonetheless conduct a search. No search warrant had been
issued.

															Accompanied by the petitioner's wife, the officers then looked
through the entire three-bedroom house, including the attic, the
garage, and a small workshop. In some rooms, the search was
relatively cursory. In the master bedroom and sewing room, however,
the officers directed the petitioner's wife to open drawers and

															"to physically move contents of the drawers from side to side so
that [they] might view any items that would have come from [the]
burglary."

															After completing the search, they seized numerous items --
primarily coins, but also several medals, tokens, and a few other
objects. The entire search took between 45 minutes and an hour.

															At the petitioner's subsequent state trial on two charges of
burglary, the items taken from his house were admitted into
evidence against him over his objection that they had been
unconstitutionally seized. He was convicted, and the judgments of
conviction were affirmed by both the California Court of Appeal, 61
Cal. Rptr. 714, and the California Supreme Court, 68 Cal. 2d
436 , 439 P.2d 333. Both courts accepted the petitioner's
contention that the arrest arrant was invalid because the
supporting affidavit was set out in conclusory terms, [ Footnote 1 ] but held that, since the
arresting officers had procured the warrant "in good faith," and
since, in any event, they had had sufficient information to
constitute probable cause for the petitioner's arrest, that arrest
had been lawful. From this conclusion, the appellate courts went on
to hold that the search of the petitioner's home Page 395 U. S. 755 had been justified, despite the absence of a search warrant, on
the ground that it had been incident to a valid arrest. We granted
certiorari in order to consider the petitioner's substantial
constitutional claims. 393 U.S. 958.

															Without deciding the question, we proceed on the hypothesis that
the California courts were correct in holding that the arrest of
the petitioner was valid under the Constitution. This brings us
directly to the question whether the warrantless search of the
petitioner's entire house can be constitutionally justified as
incident to that arrest. The decisions of this Court bearing upon
that question have been far from consistent, as even the most
cursory review makes evident.

															Approval of a warrantless search incident to a lawful arrest
seems first to have been articulated by the Court in 1914 as dictum
in Weeks v. United States, 232 U.
S. 383 , in which the Court stated:

															"What then is the present case? Before answering that inquiry
specifically, it may be well, by a process of exclusion, to state
what it is not. It is not an assertion of the right on the part of
the Government, always recognized under English and American law,
to search the person of the accused when legally arrested to
discover and seize the fruits or evidences of crime." Id. at 232 U. S. 392 .
That statement made no reference to any right to search the place
where an arrest occurs, but was limited to a right to search the
"person." Eleven years later, the case of Carroll v. United
States, 267 U. S. 132 ,
brought the following embellishment of the Weeks statement:

															"When a man is legally arrested for an offense, whatever is
found upon his person or in his control which it is
unlawful for him to have and which may be used to prove the offense
may be seized and held Page 395 U. S. 756 as evidence in the prosecution." Id. at 276 U. S. 158 .
(Emphasis added.) Still, that assertion too was far from a claim
that the "place" where one is arrested may be searched so long as
the arrest is valid. Without explanation, however, the principle
emerged in expanded form a few months later in Agnello v.
United States, 269 U. S. 20 --
although still by way of dictum:

															"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 to effect an
escape from custody, is not to be doubted. See Carroll v.
United States, 267 U. S. 132 , 267 U. S.
158 ; Weeks v. United States, 232 U. S.
383 , 232 U. S. 392 ."

															269 U.S. at 269 U. S. 30 .
And in Marron v. United States, 275 U.
S. 192 , two years later, the dictum of Agnello appeared to be the foundation of the Court's decision. In that
case, federal agents had secured a search warrant authorizing the
seizure of liquor and certain articles used in its manufacture.
When they arrived at the premises to be searched, they saw "that
the place was used for retailing and drinking intoxicating
liquors." Id. at 275 U. S. 194 .
They proceeded to arrest the person in charge and to execute the
warrant. In searching a closet for the items listed in the warrant,
they came across an incriminating ledger, concededly not covered by
the warrant, which they also seized. The Court upheld the seizure
of the ledger by holding that, since the agents had made a lawful
arrest,

															"[t]hey had a right without a warrant contemporaneously to
search the place in order to find and seize the things used to
carry on the criminal enterprise." Id. at 275 U. S. 199 . Page 395 U. S. 757 That the Marron opinion did not mean all that it seemed
to say became evident, however, a few years later in Go-Bart
Importing Co. v. United States, 282 U.
S. 344 , and United States v. Lefkowitz, 285 U. S. 452 . In
each of those cases, the opinion of the Court was written by Mr.
Justice Butler, the author of the opinion in Marron. In Go-Bart, agents had searched the office of persons whom
they had lawfully arrested, [ Footnote 2 ] and had taken several papers from a desk, a
safe, and other parts of the office. The Court noted that no crime
had been committed in the agents' presence, and that, although the
agent in charge "had an abundance of information and time to swear
out a valid [search] warrant, he failed to do so." 282 U.S. at 282 U. S. 358 .
In holding the search and seizure unlawful, the Court stated:

															"Plainly the case before us is essentially different from Marron v. United States, 275 U. S. 192 . There, officers
executing a valid search warrant for intoxicating liquors found and
arrested one Birdsall, who, in pursuance of a conspiracy, was
actually engaged in running a saloon. As an incident to the arrest,
they seized a ledger in a closet where the liquor or some of it was
kept, and some bills beside the cash register. These things were
visible and accessible and in the offender's immediate custody.
There was no threat of force, or general search, or rummaging of
the place."

															282 U.S. at 282 U. S. 358 .
This limited characterization of Marron was reiterated in Lefkowitz, a case in which the Court held unlawful a
search of desk drawers and a cabinet despite the fact that the
search had accompanied a lawful arrest. 285 U.S. at 285 U. S.
465 .

															The limiting views expressed in Go-Bart and Lefkowitz were thrown to the winds, however, in Harris v.
United Page 395 U. S. 758 States, 331 U. S. 145 ,
decided in 1947. In that case, officers had obtained a warrant for
Harris' arrest on the basis of his alleged involvement with the
cashing and interstate transportation of a forged check. He was
arrested in the living room of his four-room apartment, and, in an
attempt to recover two canceled checks thought to have been used in
effecting the forgery, the officers undertook a thorough search of
the entire apartment. Inside a desk drawer, they found a sealed
envelope marked "George Harris, personal papers." The envelope,
which was then torn open, was found to contain altered Selective
Service documents, and those documents were used to secure Harris'
conviction for violating the Selective Training and Service Act of
1940. The Court rejected Harris' Fourth Amendment claim, sustaining
the search as "incident to arrest." Id. at 331 U. S.
151 .

															Only a year after Harris, however, the pendulum swung
again. In Trupiano v. United States, 334 U.
S. 699 , agents raided the site of an illicit distillery,
saw one of several conspirators operating the still, and arrested
him, contemporaneously "seiz[ing] the illicit distillery." Id. at 334 U. S. 702 .
The Court held that the arrest and others made subsequently had
been valid, but that the unexplained failure of the agents to
procure a search warrant -- in spite of the fact that they had had
more than enough time before the raid to do so -- rendered the
search unlawful. The opinion stated:

															"It is a cardinal rule that, in seizing goods and articles, law
enforcement agents must secure and use search warrants wherever
reasonably practicable. . . . This rule rests upon the desirability
of having magistrates, rather than police officers, determine when
searches and seizures are permissible and what limitations should
be placed upon such activities. . . . To provide the necessary
security against unreasonable intrusions upon the private lives
of Page 395 U. S. 759 individuals, the framers of the Fourth Amendment required
adherence to judicial processes wherever possible. And subsequent
history has confirmed the wisdom of that requirement."

															" * * * *" "A search or seizure without a warrant as an incident to a
lawful arrest has always been considered to be a strictly limited
right. It grows out of the inherent necessities of the situation at
the time of the arrest. But there must be something more in the way
of necessity than merely a lawful arrest." Id. at 334 U. S. 705 , 334 U. S.
708 .

															In 1950, two years after Trupiano, [ Footnote 3 ] came United States v.
Rabinowitz, 339 U. S. 56 , the
decision upon which California primarily relies in the case now
before us. In Rabinowitz, federal authorities had been
informed that the defendant was dealing in stamps bearing forged
overprints. On the basis of that information, they secured a
warrant for his arrest, which they executed at his one-room
business office. At the time of the arrest, the officers "searched
the desk, safe, and file cabinets in the office for about an hour
and a half," id. at 339 U. S. 59 ,
and seized 573 stamps with forged overprints. The stamps were
admitted into evidence at the defendant's trial, and this Court
affirmed his conviction, rejecting the contention that the
warrantless search had been unlawful. The Court held that the
search in its entirety fell within the principle giving law
enforcement authorities "[t]he right to search the place where
the arrest is made in order to find and seize things connected with
the crime. . . .'" Id. at 339 U. S. 61 . Harris was regarded as "ample authority" for that
conclusion. Id. at 339 U. S. 63 .
The opinion rejected the rule of Trupiano that, "in seizing goods and articles, law enforcement agents must
secure and use search warrants Page 395 U. S. 760 wherever reasonably practicable."

															The test, said the Court, "is not whether it is reasonable to
procure a search warrant, but whether the search was reasonable." Id. at 339 U. S.
66 . Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search "incident to a
lawful arrest" may generally extend to the area that is considered
to be in the "possession" or under the "control" of the person
arrested. [ Footnote 4 ] And it
was on the basis of that proposition that the California courts
upheld the search of the petitioner's entire house in this case.
That doctrine, however, at least in the broad sense in which it was
applied by the California courts in this case, can withstand
neither historical nor rational analysis.

															Even limited to its own facts, the Rabinowitz decision
was, as we have seen, hardly founded on an unimpeachable line of
authority. As Mr. Justice Frankfurter commented in dissent in that
case, the "hint" contained in Weeks was, without
persuasive justification, "loosely turned into dictum and finally
elevated to a decision." 339 U.S. at 339 U. S. 75 .
And the approach taken in cases such as Go-Bart,
Lefkowitz, and Trupiano was essentially disregarded
by the Rabinowitz Court.

															Nor is the rationale by which the State seeks here to sustain
the search of the petitioner's house supported by a reasoned view
of the background and purpose of the Fourth Amendment. Mr. Justice
Frankfurter wisely pointed out in his Rabinowitz dissent
that the Amendment's proscription of "unreasonable searches and
seizures" Page 395 U. S. 761 must be read in light of "the history that gave rise to the
words" -- a history of "abuses so deeply felt by the Colonies as to
be one of the potent causes of the Revolution. . . ." 339 U.S. at 339 U. S. 69 .
The Amendment was in large part a reaction to the general warrants
and warrantless searches that had so alienated the colonists and
had helped speed the movement for independence. [ Footnote 5 ] In the scheme of the Amendment,
therefore, the requirement that "no Warrants shall issue, but upon
probable cause," plays a crucial part. As the Court put it in McDonald v. United States, 335 U.
S. 451 :

															"We are not dealing with formalities. The presence of a search
warrant serves a high function. Absent some grave emergency, the
Fourth Amendment has interposed a magistrate between the citizen
and the police. This was done not to shield criminals, nor to make
the home a safe haven for illegal activities. It was done so that
an objective mind might weigh the need to invade that privacy in
order to enforce the law. The right of privacy was deemed too
precious to entrust to the discretion of those whose job is the
detection of crime and the arrest of criminals. . . . And so the
Constitution requires a magistrate to pass on the desires of the
police before they violate the privacy of the home. We cannot be
true to that constitutional requirement and excuse the absence of a
search warrant without a showing by those who seek exemption from
the constitutional mandate that the exigencies of the situation
made that course imperative." Id. at 335 U. S.
455 -456. Page 395 U. S. 762 Even in the Agnello case, the Court relied upon the
rule that

															"[b]elief, however well founded, that an article sought is
concealed in a dwelling house furnishes no justification for a
search of that place without a warrant. And such searches are held
unlawful notwithstanding facts unquestionably showing probable
cause."

															269 U.S. at 269 U. S. 33 .
Clearly, the general requirement that a search warrant be obtained
is not lightly to be dispensed with, and "the burden is on those
seeking [an] exemption [from the requirement] to show the need for
it. . . ." United States v. Jeffers, 342 U. S.
48 , 342 U. S.
51 .

															Only last Term, in Terry v. Ohio, 392 U. S.
1 , we emphasized that "the police must, whenever
practicable, obtain advance judicial approval of searches and
seizures through the warrant procedure," id. at 392 U. S. 20 ,
[ Footnote 6 ] and that "[t]he
scope of [a] search must be strictly tied to and justified by'
the circumstances which rendered its initiation permissible." Id. at 392 U. S. 19 . The
search undertaken by the officer in that "stop and frisk" case was
sustained under that test, because it was no more than a
"protective . . . search for weapons." Id. at 392 U. S. 29 . But
in a companion case, Sibron v. New York, 392 U. S.
40 , we applied the same standard to another set of facts
and reached a contrary result, holding that a policeman's action in
thrusting his hand into a suspect's pocket had been neither
motivated by nor limited to the objective of protection. [ Footnote 7 ] Rather, the search had been
made in order to find narcotics, which were, in fact,
found. A similar analysis underlies the "search incident to arrest"
principle, and marks its proper extent. When an Page 395 U. S. 763 arrest is made, it is reasonable for the arresting officer to
search the person arrested in order to remove any weapons that the
latter might seek to use in order to resist arrest or effect his
escape. Otherwise, the officer's safety might well be endangered,
and the arrest itself frustrated. In addition, it is entirely
reasonable for the arresting officer to search for and seize any
evidence on the arrestee's person in order to prevent its
concealment or destruction. And the area into which an arrestee
might reach in order to grab a weapon or evidentiary items must, of
course, be governed by a like rule. A gun on a table or in a drawer
in front of one who is arrested can be as dangerous to the
arresting officer as one concealed in the clothing of the person
arrested. There is ample justification, therefore, for a search of
the arrestee's person and the area "within his immediate control"
-- construing that phrase to mean the area from within which he
might gain possession of a weapon or destructible evidence.

															There is no comparable justification, however, for routinely
searching any room other than that in which an arrest occurs -- or,
for that matter, for searching through all the desk drawers or
other closed or concealed areas in that room itself. Such searches,
in the absence of well recognized exceptions, may be made only
under the authority of a search warrant. [ Footnote 8 ] The "adherence to judicial processes"
mandated by the Fourth Amendment requires no less.

															This is the principle that underlay our decision in Preston
v. United States, 376 U. S. 364 . In
that case, three men had been arrested in a parked car, which had
later been towed to a garage and searched by police. We held the
search to have been unlawful under the Fourth Amendment, despite
the contention that it had Page 395 U. S. 764 been incidental to a valid arrest. Our reasoning was
straightforward:

															"The rule allowing contemporaneous searches is justified, for
example, by the need to seize weapons and other things which might
be used to assault an officer or effect an escape, as well as by
the need to prevent the destruction of evidence of the crime --
things which might easily happen where the weapon or evidence is on
the accused's person or under his immediate control. But these
justifications are absent where a search is remote in time or place
from the arrest." Id. at 376 U. S. 367 .
[ Footnote 9 ] The same basic
principle was reflected in our opinion last Term in Sibron. That opinion dealt with Peters v. New
York, No. 74, as well as with Sibron's case, and Peters involved a search that we upheld as incident to a
proper arrest. We sustained the search. however, only because its
scope had been "reasonably limited" by the "need to seize weapons"
and "to prevent the destruction of evidence," to which Preston had referred. We emphasized that the arresting
officer

															"did not engage in an unrestrained and thoroughgoing examination
of Peters and his personal effects. He seized him to cut short his
flight, and he searched him primarily for weapons."

															392 U.S. at 392 U. S.
67 .

															It is argued in the present case that it is "reasonable" to
search a man's house when he is arrested in it. But that argument
is founded on little more than a subjective view regarding the
acceptability of certain sorts of police Page 395 U. S. 765 conduct, and not on considerations relevant to Fourth Amendment
interests. Under such an unconfined analysis, Fourth Amendment
protection in this area would approach the evaporation point. It is
not easy to explain why, for instance, it is less subjectively
"reasonable" to search a man's house when he is arrested on his
front lawn -- or just down the street -- than it is when he happens
to be in the house at the time of arrest. [ Footnote 10 ] As Mr. Justice Frankfurter put
it:

															"To say that the search must be reasonable is to require some
criterion of reason. It is no guide at all either for a jury or for
district judges or the police to say that an 'unreasonable search'
is forbidden -- that the search must be reasonable. What is the
test of reason which makes a search reasonable? The test is the
reason underlying and expressed by the Fourth Amendment: the
history and the experience which it embodies and the safeguards
afforded by it against the evils to which it was a response." United States v. Rabinowitz, 339 U.S. at 339 U. S. 83 (dissenting opinion). Thus, although "[t]he recurring questions of
the reasonableness of searches" depend upon "the facts and
circumstances -- the total atmosphere of the case," id. at 339 U. S. 63 , 339 U. S. 66 (opinion of the Court), those facts and circumstances must be
viewed in the light of established Fourth Amendment principles. Page 395 U. S. 766 It would be possible, of course, to draw a line between Rabinowitz and Harris, on the one hand, and this
case, on the other. For Rabinowitz involved a single room,
and Harris a four-room apartment, while, in the case
before us, an entire house was searched. But such a distinction
would be highly artificial. The rationale that allowed the searches
and seizures in Rabinowitz and Harris would allow
the searches and seizures in this case. No consideration relevant
to the Fourth Amendment suggests any point of rational limitation
once the search is allowed to go beyond the area from which the
person arrested might obtain weapons or evidentiary items.
[ Footnote 11 ] The only
reasoned distinction is one between a search of the person arrested
and the area within his reach, on the one hand, and more extensive
searches, on the other. [ Footnote 12 ] Page 395 U. S. 767 The petitioner correctly points out that one result of decisions
such as Rabinowitz and Harris is to give law
enforcement officials the opportunity to engage in searches not
justified by probable cause, by the simple expedient of arranging
to arrest suspects at home, rather than elsewhere. We do not
suggest that the petitioner is necessarily correct in his assertion
that such a strategy was utilized here, [ Footnote 13 ] but the fact remains that, had he been
arrested earlier in the day, at his place of employment, rather
than at home, no search of his house could have been made without a
search warrant. In any event, even apart from the possibility of
such police tactics, the general point so forcefully made by Judge
Learned Hand in United States v. Kirschenblatt, 16 F.2d
202, remains:

															"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; Page 395 U. S. 768 but it is small consolation to know that one's papers are safe
only so long as one is not at home." Id. at 203. Rabinowitz and Harris have been the subject of
critical commentary for many years, [ Footnote 14 ] and have been relied upon less and less in
our own decisions. [ Footnote
15 ] It is time, for the reasons we have stated, to hold that,
on their own facts, and insofar as the principles they stand for
are inconsistent with those that we have endorsed today, they are
no longer to be followed.

															Application of sound Fourth Amendment principles to the facts of
this case produces a clear result. The search here went far beyond
the petitioner's person and the area from within which he might
have obtained either a weapon or something that could have been
used as evidence against him. There was no constitutional
justification, in the absence of a search warrant, for extending
the search beyond that area. The scope of the search was,
therefore, "unreasonable" under the Fourth and Fourteenth
Amendments, and the petitioner's conviction cannot stand. [ Footnote 16 ] Reversed. Page 395 U. S. 769 [ Footnote 1 ]

															The affidavit supporting the warrant is set out in the opinion
of the Court of Appeal, 61 Cal. Rptr. at 715-716, n. 1, and the
State does not challenge its insufficiency under the principles of Aguilar v. Texas, 378 U. S. 108 , and Spinelli v. United States, 393 U.
S. 410 .

															[ Footnote 2 ]

															The Court assumed that the arrests were lawful. 282 U.S. at 282 U. S.
356 .

															[ Footnote 3 ] See also McDonald v. United States, 335 U.
S. 451 .

															[ Footnote 4 ]

															Decisions of this Court since Rabinowitz have applied
the abstract doctrine of that case to various factual situations
with divergent results. Compare Ker v. California, 374 U. S. 23 , 374 U. S. 42 ; Abel v. United States, 362 U. S. 217 , and Draper v. United States, 358 U.
S. 307 , with Kremen v. United States, 353 U. S. 346 (per
curiam). Cf. Chapman v. United States, 365 U.
S. 610 ; Jones v. United States, 357 U.
S. 493 , 357 U. S.
499 -500.

															[ Footnote 5 ] See generally Boyd v. United States, 116 U.
S. 616 , 116 U. S.
624 -625; Weeks v. United States, 232 U.
S. 383 , 232 U. S.
389 -391; Davis v. United States, 328 U.
S. 582 , 328 U. S.
603 -605 (dissenting opinion); Harris v. United
States, 331 U. S. 145 , 331 U. S.
157 -162 (dissenting opinion); Stanford v.
Texas, 379 U. S. 476 , 379 U. S.
481 -482.

															[ Footnote 6 ] See also Davis v. Mississippi, 394 U.
S. 721 , 394 U. S. 728 ; Katz v. United States, 389 U. S. 347 , 389 U. S.
356 -358; Warden v. Hayden, 387 U.
S. 294 , 387 U. S. 299 ; Preston v. United States, 376 U.
S. 364 , 376 U. S.
367 .

															[ Footnote 7 ]

															Our Sibron opinion dealt with two case. We refer here
to No. 63, involving the appellant Sibron. See infra at 395 U. S.
764 .

															[ Footnote 8 ] See Katz v. United States, 389 U.
S. 347 , 389 U. S.
357 -358.

															[ Footnote 9 ]

															Our holding today is, of course, entirely consistent with the
recognized principle that, assuming the existence of probable
cause, automobiles and other vehicles may be searched without
warrants

															"where it is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought." Carroll v. United States, 267 U.
S. 132 , 267 U. S. 153 ; see Brinegar v. United States, 338 U.
S. 160 .

															[ Footnote 10 ]

															Some courts have carried the Rabinowitz approach to
just such lengths. See, e.g., Clifton v. United States, 224 F.2d 329 (C.A.4th Cir.), cert. denied, 350 U.S. 894
(purchaser of illicit whiskey arrested in back yard of seller;
search of one room of house sustained); United States v.
Jackson, 149 F.
Supp. 937 (D.C.D.C.), rev'd on other grounds, 102
U.S.App.D.C. 109, 250 F.2d 772 (suspect arrested half a block from
his rented room; search of room upheld). But see James v.
Louisiana, 382 U. S. 36 (per
curiam).

															[ Footnote 11 ] Cf. Mr. Justice Jackson's dissenting comment in Harris: "The difficulty with this problem for me is that, once the
search is allowed to go beyond the person arrested and the objects
upon him or in his immediate physical control, I see no practical
limit short of that set in the opinion of the Court -- and that
means to me no limit at all."

															331 U.S. at 331 U. S.
197 .

															[ Footnote 12 ]

															It is argued in dissent that, so long as there is probable cause
to search the place where an arrest occurs, a search of that place
should be permitted even though no search warrant has been
obtained. This position seems to be based principally on two
premises: first, that, once an arrest has been made, the additional
invasion of privacy stemming from the accompanying search is
"relatively minor", and second, that the victim of the search may
"shortly thereafter" obtain a judicial determination of whether the
search was justified by probable cause. With respect to the second
premise, one may initially question whether all of the States, in
fact, provide the speedy suppression procedures the dissent
assumes. More fundamentally, however, we cannot accept the view
that Fourth Amendment interests are vindicated so long as "the
rights of the criminal" are "protect[ed] . . . against introduction
of evidence seized without probable cause." The Amendment is
designed to prevent, not simply to redress, unlawful police action.
In any event, we cannot join in characterizing the invasion of
privacy that results from a top-to-bottom search of a man's house
as "minor." And we can see no reason why, simply because some
interference with an individual's privacy and freedom of movement
has lawfully taken place, further intrusions should automatically
be allowed despite the absence of a warrant that the Fourth
Amendment would otherwise require.

															[ Footnote 13 ]

															Although the warrant was issued at 10:39 a.m. and the arrest was
not made until late in the afternoon, the State suggests that the
delay is accounted for by normal police procedures and by the heavy
workload of the officer in charge. In addition, that officer
testified that he and his colleagues went to the petitioner's house
"to keep from approaching him at his place of business to cause him
any problem there."

															[ Footnote 14 ] See, e.g., J. Landynski, Search and Seizure and the
Supreme Court 87-117 (1966); Way, Increasing Scope of Search
Incidental to Arrest, 1959 Wash.U.L.Q. 261, Note, Scope Limitations
for Searches Incident to Arrest, 78 Yale L.J. 433 (1969); Note, The
Supreme Court 1966 Term, 81 Harv.L.Rev. 69, 117-122 (1967)

															[ Footnote 15 ] Cf. Dyke v. Taylor Implement Mfg. Co., 391 U.
S. 216 , 391 U. S. 20 ; Katz v. United States, 389 U.S. at 389 U. S.
357 -358, n. 20; Warden v. Hayden, 387 U.S. at 387 U. S. 299 ; Stoner v. California, 376 U. S. 483 , 376 U. S. 487 . But see Cooper v. California, 386 U. S.
58 , 386 U. S. 62 ; Ker v. California, 374 U.S. at 374 U. S. 42 (opinion of Clark, J.); cf. Beck v. Ohio, 379 U. S.
89 , 379 U. S. 91 ; Abel v. United States, 362 U.S. at 362 U. S.
236 -239; Giordenello v. United States, 357 U.
S. 480 , 357 U. S.
488 .

															[ Footnote 16 ]

															The State has made various subsidiary contentions, including
arguments that it would have been unduly burdensome to obtain a
warrant specifying the coins to be seized and that introduction of
the fruits of the search was harmless error. We reject those
contentions as being without merit.

															MR. JUSTICE HARLAN, concurring.

															I join the Court's opinion with these remarks concerning a
factor to which the Court has not alluded.

															The only thing that has given me pause in voting to overrule Harris and Rabinowitz is that as a result of Mapp v. Ohio, 367 U. S. 643 (1961), and Ker v. California, 374 U. S.
23 (1963), every change in Fourth Amendment law must now
be obeyed by state officials facing widely different problems of
local law enforcement. We simply do not know the extent to which
cities and towns across the Nation are prepared to administer the
greatly expanded warrant system which will be required by today's
decision; nor can we say with assurance that, in each and every
local situation, the warrant requirement plays an essential role in
the protection of those fundamental liberties protected against
state infringement by the Fourteenth Amendment.

															Thus, one is now faced with the dilemma, envisioned in my
separate opinion in Ker, 374 U.S. at 374 U. S. 45 -46,
of choosing between vindicating sound Fourth Amendment principles
at the possible expense of state concerns, long recognized to be
consonant with the Fourteenth Amendment before Mapp and Ker came on the books, or diluting the Federal Bill of
Rights in the interest of leaving the States at least some elbow
room in their methods of criminal law enforcement. No comparable
dilemma exists, of course, with respect to the impact of today's
decision within the federal system itself.

															This federal-state factor has not been an easy one for me to
resolve, but in the last analysis, I cannot in good conscience vote
to perpetuate bad Fourth Amendment law.

															I add only that this case, together with Benton v. Maryland,
post, p. 395 U. S. 784 , North Carolina v. Pearce, ante, p. 395 U. S. 711 , and Simpson v. Rice, ante, p. 395 U. S. 711 , all
decided Page 395 U. S. 770 today, serve to point up, as few other cases have, the profound
changes that the "incorporation doctrine" has wrought both in the
workings of our federal system and upon the adjudicative processes
of this Court.

															MR. JUSTICE WHITE, with whom MR. JUSTICE BLACK joins,
dissenting.

															Few areas of the law have been as subject to shifting
constitutional standards over the last 50 years as that of the
search "incident to an arrest." There has been a remarkable
instability in this whole area, which has seen at least four major
shifts in emphasis. Today's opinion makes an untimely fifth. In my
view, the Court should not now abandon the old rule. I The modern odyssey of doctrine in this field is detailed in the
majority opinion. It began with Weeks v. United States, 232 U. S. 383 (1914), where the Court paused to note what the case before it was
not.

															"It is not an assertion of the right on the part of the
Government, always recognized under English and American law, to
search the person of the accused when legally arrested to discover
and seize the fruits or evidences of crime. This right has been
uniformly maintained in many cases. . . . Nor is it the case of
burglar's tools or other proofs of guilt found upon his arrest within the control of the accused. " Id. at 232 U. S. 392 .
(Emphasis added.) This scope of search incident to arrest,
extending to all items under the suspect's "control," was
reaffirmed in a dictum in Carroll v. United States, 267 U. S. 132 , 267 U. S. 158 (1925). Accord, Agnello v. United States, 269 U. S.
20 , 269 U. S. 30 (1925) (holding that "the place where the arrest is made" may be
searched "is not to be doubted"). The rule was reaffirmed in Marron v. United States, 275 U. S. 192 , 275 U. S. 199 (1927), where the Court asserted that authority Page 395 U. S. 771 to search incident to an arrest "extended to all parts of the
premises used for the unlawful purpose."

															Within five years, this rule was qualified by two Prohibition
Act cases, Go-Bart Importing Co. v. United States, 282 U. S. 344 , 282 U. S.
356 -358 (1931), and United States v. Lefkowitz, 285 U. S. 452 , 285 U. S.
463 -467 (1932).

															If Go-Bart and Lefkowitz represented a retreat
from the rule of Weeks, Carroll, Agnello, and Marron, the vigor of the earlier rule was reaffirmed in Harris v. United States, 331 U. S. 145 (1947), which has, but for one brief interlude, clearly been the
law until today. The very next Term after Harris, in Trupiano v. United States, 334 U.
S. 699 (1948), the Court held unjustifiable the seizure
of a still incident to the arrest of a man at the still site, even
though the still was contraband, had been visible through an open
door before entering the premises to be "searched," and although a
crime was being committed in the officers' presence. Accord, that year, McDonald v. United States, 335 U. S. 451 (1948) (gambling game seen through transom before entry). Less than
two years later, however, the Court returned to the Harris rule in United States v. Rabinowitz, 339 U. S.
56 (1950), where the Court held that the reasonableness
of a search does not depend upon the practicability of obtaining a
search warrant, and that the fact of a valid arrest is relevant to
reasonableness. Trupiano was pro tanto overruled.

															Such rapid reversals have occurred before, [ Footnote 2/1 ] but they are rare. Here there had
been two about-faces, one following hard upon the other. Justice
Frankfurter objected in this language:

															"Especially ought the Court not reenforce needlessly the
instabilities of our day by giving fair ground for the belief that
Law is the expression of Page 395 U. S. 772 chance -- for instance, of unexpected changes in the Court's
composition and the contingencies in the choice of successors."

															339 U.S. at 339 U. S. 86 .
Since that time, the rule of Weeks, Marron, Harris, and Rabinowitz has clearly been the law. E.g., Abel v.
United States, 362 U. S. 217 (1960) (Frankfurter, J., writing for the Court); Ker v.
California, 374 U. S. 23 (1963). [ Footnote 2/2 ] II The rule which has prevailed, but for very brief or doubtful
periods of aberration, is that a search incident to an arrest may
extend to those areas under the control of the defendant and where
items subject to constitutional seizure may be found. The
justification for this rule must, under the language of the Fourth
Amendment, lie in the reasonableness of the rule. Terry v.
Ohio, 392 U. S. 1 , 392 U. S. 9 (1968); Sibron v. New York, 392 U. S.
40 (1968); Elkins v. United States, 364 U. S. 206 , 364 U. S. 222 (1960). The Amendment provides:

															"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized."

															In terms, then, the Court must decide whether a given search is
reasonable. The Amendment does not proscribe "warrantless
searches," but, instead, it proscribes "unreasonable Page 395 U. S. 773 searches," and this Court has never held, nor does the majority
today assert, that warrantless searches are necessarily
unreasonable.

															Applying this reasonableness test to the area of searches
incident to arrests, one thing is clear at the outset. Search of an
arrested man and of the items within his immediate reach must, in
almost every case, be reasonable. There is always a danger that the
suspect will try to escape, seizing concealed weapons with which to
overpower and injure the arresting officers, and there is a danger
that he may destroy evidence vital to the prosecution.
Circumstances in which these justifications would not apply are
sufficiently rare that inquiry is not made into searches of this
scope, which have been considered reasonable throughout.

															The justifications which make such a search reasonable obviously
do not apply to the search of areas to which the accused does not
have ready physical access. This is not enough, however, to prove
such searches unconstitutional. The Court has always held, and does
not today deny, that, when there is probable cause to search and it
is "impracticable" for one reason or another to get a search
warrant, then a warrantless search may be reasonable. E.g. even Trupiano v. United States, 334 U.
S. 699 (1948). This is the case whether an arrest was
made at the time of the search or not. [ Footnote 2/3 ]

															This is not to say that a search can be reasonable without
regard to the probable cause to believe that seizable items are on
the premises. But when there are exigent circumstances and probable
cause, then the search may be made without a warrant, reasonably.
An Page 395 U. S. 774 arrest itself may often create an emergency situation making it
impracticable to obtain a warrant before embarking on a related
search. Again assuming that there is probable cause to search
premises at the spot where a suspect is arrested, it seems to me
unreasonable to require the police to leave the scene in order to
obtain a search warrant when they are already legally there to make
a valid arrest, and when there must almost always be a strong
possibility that confederates of the arrested man will in the
meanwhile remove the items for which the police have probable cause
to search. This must so often be the case that it seems to me as
unreasonable to require a warrant for a search of the premises as
to require a warrant for search of the person and his very
immediate surroundings.

															This case provides a good illustration of my point that it is
unreasonable to require police to leave the scene of an arrest in
order to obtain a search warrant when they already have probable
cause to search and there is a clear danger that the items for
which they may reasonably search will be removed before they return
with a warrant. Petitioner was arrested in his home after an arrest
whose validity will be explored below, but which I will now assume
was valid. There was doubtless probable cause not only to arrest
petitioner, but also to search his house. He had obliquely
admitted, both to a neighbor and to the owner of the burglarized
store, that he had committed the burglary. [ Footnote 2/4 ] In light of this, and the fact that the
neighbor had seen other Page 395 U. S. 775 admittedly stolen property in petitioner's house, there was
surely probable cause on which a warrant could have issued to
search the house for the stolen coins. Moreover, had the police
simply arrested petitioner, taken him off to the station house, and
later returned with a warrant, [ Footnote 2/5 ] it seems very likely that petitioner's
wife, who, in view of petitioner's generally garrulous nature, must
have known of the robbery, would have removed the coins. For the
police to search the house while the evidence they had probable
cause to search out and seize was still there cannot be considered
unreasonable. [ Footnote 2/6 ] Page 395 U. S. 776 III This line of analysis, supported by the precedents of this
Court, hinges on two assumptions. One is that the arrest of
petitioner without a valid warrant [ Footnote 2/7 ] was constitutional as the majority
assumes; the other is that the police were not required to obtain a
search warrant in advance, even though they knew that the effect of
the arrest might well be to alert petitioner's wife that the coins
had better be removed soon. Thus, it is necessary to examine the
constitutionality of the arrest, since, if it was illegal, the
exigent circumstances which it created may not, as the consequences
of a lawless act, be used to justify the contemporaneous
warrantless search. But for the arrest, the warrantless search may
not be justified. [ Footnote 2/8 ]
And if circumstances can justify the warrantless arrest, it would
be strange to say that the Fourth Amendment bars the warrantless
search, regardless of the circumstances, since the invasion and
disruption of a man's life and privacy which stem from his arrest
are ordinarily far greater than the relatively minor intrusions
attending a search of his premises.

															Congress has expressly authorized a wide range of officials to
make arrests without any warrant in criminal cases. United States
Marshals have long had this power, [ Footnote 2/9 ] which is also vested in the agents of the
Federal Page 395 U. S. 777 Bureau of Investigation, [ Footnote
2/10 ] and in the Secret Service [ Footnote 2/11 ] and the narcotics law enforcement
agency. [ Footnote 2/12 ] That
warrantless arrest power may apply even when there is time to get a
warrant without fear that the suspect may escape is made perfectly
clear by the legislative history of the statute granting arrest
power to the FBI.

															In United States v. Coplon, 185 F.2d 629, 633-636
(C.A.2d Cir.1950), the court held that an arrest and search were
invalid because there was an insufficient showing of danger of
escape, and therefore there was time to obtain a warrant. The
opinion, written by Judge Learned Hand and joined by Judges Swan
and Frank, reviewed the common law power of arrest, which permitted
arrests for felonies committed in the past "if [the officer] had
reasonable ground to suppose that the person arrested had committed
the felony." However, the court concluded that this power of
warrantless arrest had been limited by the congressional
requirement that there must be a "likelihood of the person escaping
before a warrant can be obtained for his arrest."

															The next month, the Congress was moved by this very decision to
amend the law, consciously deleting the language upon which Judge
Hand had relied so as to make it clear that warrantless arrests
were authorized even if there was time to procure a warrant. Act of
January 10, 1951, c. 1221, § 1, 64 Stat. 1239; H.R.Rep. No. 3228,
81st Cong., 2d Sess. (1950). [ Footnote 2/13 ] Thereupon, the Court of Page 395 U. S. 778 Appeals for the District of Columbia Circuit, passing on the
very same arrest which had induced the congressional action, held
that this "unmistakable" revision made it clear that there was in
the FBI a power to arrest without warrant even when there was time
to procure one. For this reason, the court upheld the arrest and
contemporaneous search. Coplon v. United States, 89
U.S.App.D.C. 103, 191 F.2d 749 (1951). Certiorari was denied in
both Coplon cases. 342 U.S. 920, 926 (1952). Moreover, the
statute under which the FBI exercises that power was later said by
this Court to state the constitutional standard, Henry v.
United States, 361 U. S. 98 , 361 U. S. 100 (1959), since it requires "reasonable grounds to believe that the
person to be arrested has committed or is committing" a felony, 18
U.S.C. § 3052, before a warrantless arrest my be made. And the
Court today has declined to review a warrantless arrest under the
narcotics agent statute. Jamison v. United States, post, p. 986. See also my dissent in Shipley v. California,
post, p. 395 U. S.
821 .

															The judgment of Congress is that federal law enforcement
officers may reasonably make warrantless arrests upon probable
cause, and no judicial experience suggests that this judgment is
infirm. Indeed, past cases suggest precisely the contrary
conclusion. The validity of federal arrests was long governed by
state law, United States v. Di Re, 332 U.
S. 581 , 332 U. S.
589 -592 (1948), and no requirement that warrants be
sought whenever there is time to do so was imposed either by common
law history [ Footnote 2/14 ] or by
decisions of this Court. This Court has upheld an executive Page 395 U. S. 779 arrest warrant for deportation, permitting the arrest to occur
without prior judicial scrutiny, Abel v. United States, 362 U. S. 217 (1960). And this Court has regularly affirmed the validity of
warrantless arrests without any indication whatever that there was
no time to get a warrant, and indeed where all the circumstances
pointed to the opposite conclusion. E.g., Ker v.
California, 374 U. S. 23 (1963); Draper v. United States, 358 U.
S. 307 (1959). The lower federal courts have certainly
been of the view that warrants are unnecessary even where there is
time to obtain them. Dailey v. United States, 261 F.2d 870
(C.A. 5th Cir.1958), cert. denied, 359 U.S. 969 (1959)
(statutory warrantless arrest by federal narcotics agents); Smith v. United States, 103 U.S.App.D.C. 48, 52, 254 F.2d
751, 755, cert. denied, 357 U.S. 937 (1958); Mills v.
United States, 90 U.S.App.D.C. 365, 196 F.2d 600, cert.
denied, 344 U.S. 826 (1952) ( sub silentio ).

															In light of the uniformity of judgment of the Congress, past
judicial decisions, and common practice rejecting the proposition
that arrest warrants are essential wherever it is practicable to
get them, the conclusion is inevitable that such arrests and
accompanying searches are reasonable, at least until experience
teaches the contrary. It must very often be the case that, by the
time probable cause to arrest a man is accumulated, the man is
aware of police interest in him or for other good reasons is on the
verge of flight. Moreover, it will likely be very difficult to
determine the probability of his flight. Given this situation, it
may be best in all cases simply to allow the arrest if there is
probable cause, especially since that issue can be determined very
shortly after the arrest.

															Nor are the stated assumptions at all fanciful. It was precisely
these facts which moved the Congress to grant to the FBI the power
to arrest without a warrant without any showing of probability of
flight. Both the Page 395 U. S. 780 Senate and House committees quoted the letter of the Acting
Deputy Attorney General, Peter Campbell Brown, who in asking for
the new legislation asserted:

															"Although it is recognized that, in any felony case, the person
to be arrested may attempt to flee, it is also recognized that, in
any such case in which the defendant is arrested without a warrant
in an emergency situation, such defendant may be able to present a
rather convincing argument that he did not intend to flee."

															S.Rep. No. 2464, 81st Cong., 2d Sess., 2 (1950); H.R.Rep. No.
3228, 81st Cong., 2d Sess., 2 (1950). Some weight should be
accorded this factual judgment by law enforcement officials,
adopted by the Congress. IV If circumstances so often require the warrantless arrest that
the law generally permits it, the typical situation will find the
arresting officers lawfully on the premises without arrest or
search warrant. Like the majority, I would permit the police to
search the person of a suspect and the area under his immediate
control either to assure the safety of the officers or to prevent
the destruction of evidence. And like the majority, I see nothing
in the arrest alone furnishing probable cause for a search of any
broader scope. However, where, as here, the existence of probable
cause is independently established and would justify a warrant for
a broader search for evidence, I would follow past cases and permit
such a search to be carried out without a warrant, since the fact
of arrest supplies an exigent circumstance justifying police action
before the evidence can be removed, and also alerts the suspect to
the fact of the search so that he can immediately seek judicial
determination of probable cause in an adversary proceeding, and
appropriate redress.

															This view, consistent with past cases, would not authorize the
general search against which the Fourth Page 395 U. S. 781 Amendment was meant to guard, nor would it broaden or render
uncertain in any way whatsoever the scope of searches permitted
under the Fourth Amendment. The issue in this case is not the
breadth of the search, since there was clearly probable cause for
the search which was carried out. No broader search than if the
officers had a warrant would be permitted. The only issue is
whether a search warrant was required as a precondition to that
search. It is agreed that such a warrant would be required absent
exigent circumstances. [ Footnote
2/15 ] I would hold that the fact of arrest supplies such an
exigent circumstance, since the police had lawfully gained entry to
the premises to effect the arrest and since delaying the search to
secure a warrant would have involved the risk of not recovering the
fruits of the crime.

															The majority today proscribes searches for which there is
probable cause and which may prove fruitless unless carried out
immediately. This rule will have no added effect whatsoever in
protecting the rights of the criminal accused at trial against
introduction of evidence seized without probable cause. Such
evidence could not be introduced under the old rule. Nor does the
majority Page 395 U. S. 782 today give any added protection to the right of privacy of those
whose houses there is probable cause to search. A warrant would
still be sworn out for those houses, and the privacy of their
owners invaded. The only possible justification for the majority's
rule is that, in some instances, arresting officers may search when
they have no probable cause to do so, and that such unlawful
searches might be prevented if the officers first sought a warrant
from a magistrate. Against the possible protection of privacy in
that class of cases, in which the privacy of the house has already
been invaded by entry to make the arrest -- an entry for which the
majority does not assert that any warrant is necessary -- must be
weighed the risk of destruction of evidence for which there is
probable cause to search, as a result of delays in obtaining a
search warrant. Without more basis for radical change than the
Court's opinion reveals, I would not upset the balance of these
interests which has been struck by the former decisions of this
Court.

															In considering searches incident to arrest, it must be
remembered that there will be immediate opportunity to challenge
the probable cause for the search in an adversary proceeding. The
suspect has been apprised of the search by his very presence at the
scene, and, having been arrested, he will soon be brought into
contact with people who can explain his rights. As MR. JUSTICE
BRENNAN noted in a dissenting opinion, joined by THE CHIEF JUSTICE
and JUSTICES BLACK and DOUGLAS, in Abel v. United States, 362 U. S. 217 , 362 U. S.
249 -250 (1960), a search contemporaneous with a
warrantless arrest is specially safeguarded, since

															"[s]uch an arrest may constitutionally be made only upon
probable cause, the existence of which is subject to judicial
examination, see Henry v. United States, 361 U. S.
98 , 361 U. S. 100 , and such an
arrest demands the prompt bringing of the person arrested before a
judicial officer, where the existence of Page 395 U. S. 783 probable cause is to be inquired into. Fed.Rules Crim.Proc. 5(a)
and (c). . . . Mallory v. United States, 354 U. S.
449 ; McNabb v. United States, 318 U. S.
332 ."

															And, since that time, the Court has imposed on state and federal
officers alike the duty to warn suspects taken into custody, before
questioning them, of their right to a lawyer. Miranda v.
Arizona, 384 U. S. 436 (1966); Orozco v. Texas, 394 U. S. 324 (1969).

															An arrested man, by definition conscious of the police interest
in him, and provided almost immediately with a lawyer and a judge,
is in an excellent position to dispute the reasonableness of his
arrest and contemporaneous search in a full adversary proceeding. I
would uphold the constitutionality of this search contemporaneous
with an arrest, since there were probable cause both for the search
and for the arrest, exigent circumstances involving the removal or
destruction of evidence, and satisfactory opportunity to dispute
the issues of probable cause shortly thereafter. In this case, the
search was reasonable.

															[ Footnote 2/1 ] Murdock v. Pennsylvania, 319 U.
S. 105 (1943), overruled Jones v. Opelika, 316 U. S. 584 (1942); Legal Tender
Cases , 12 Wall. 457 (1871), overruled Hepburn v.
Griswold , 8 Wall. 603 (1870).

															[ Footnote 2/2 ]

															The majority cites Kremen v. United States, 353 U. S. 346 (1957), as suggesting an inconsistency. There, however, in a per
curiam opinion, the Court merely overturned a general search in
which the entire contents of a cabin, which it took 11 pages of
fine print for the Court to inventory, were seized. See Abel v.
United States, 362 U. S. 217 , 362 U. S. 239 (1960) ( Kremen distinguished as a "mass seizure").

															[ Footnote 2/3 ]

															Even Mr. Justice Frankfurter, joined in dissent in Rabinowitz by Mr. Justice Jackson, admitted that there was
an exception to the search warrant requirement in cases of
necessity, and noted that this applied, for example, to vehicles
which could readily be moved. 339 U. S. 56 , at 339 U. S.
73 .

															[ Footnote 2/4 ]

															Before the burglary of the coin store, petitioner had told its
owner that he was planning a big robbery, had inquired about the
alarm system in the store, the state of the owner's insurance, and
the location of the owner's most valuable coins. Petitioner
wandered about the store the day before the burglary. After the
burglary, petitioner called the store's owner and accused him of
robbing the store himself for the insurance proceeds on a policy
which, as petitioner knew, had just been reduced from $50,000 to
$10,000 coverage. On being told that the robbery had been sloppy,
petitioner excitedly claimed that it had been "real professional,"
but then denied the robbery. On the night of the robbery itself,
petitioner declined an invitation to a bicycle ride, saying he was
"going to knock over a place" and that a coin shop was "all set."
After the robbery,m he told the same neighbor that he had started
to break into the coin shop, but had stopped, and then denied the
whole incident. The neighbor had earlier seen stacks of typewriters
in petitioner's house, Asked whether they were "hot," petitioner
replied, "Hotter than a $3 bill." On reading a newspaper
description of the coin store burglary, the neighbor called the
police.

															[ Footnote 2/5 ]

															There were three officers at the scene of the arrest, one from
the city where the coin burglary had occurred, and two from the
city where the arrest was made. Assuming that one policeman from
each city would be needed to bring the petitioner in and obtain a
search warrant, one policeman could have been left to guard the
house. However, if he not only could have remained in the house
against petitioner's wife will, but followed her about to assure
that no evidence was being tampered with, the invasion of her
privacy would be almost as great as that accompanying an actual
search. Moreover, had the wife summoned an accomplice, one officer
could not have watched them both.

															[ Footnote 2/6 ]

															A second arrest and search of petitioner's house occurred three
days later. It relates to an entirely separate robbery of which
petitioner was separately convicted and for which he was
concurrently sentenced. Since no evidence was seized in the second
search, and since it did not in any way affect petitioner's trial
so far as the record discloses, there is no occasion to consider
its propriety.

															[ Footnote 2/7 ]

															An arrest warrant was, in fact, issued, but it was issued on an
inadequate supporting affidavit, and was therefore invalid, so that
the case must be considered as though no warrant had been
issued.

															[ Footnote 2/8 ]

															This in turn assumes that, where it is practicable to obtain a
search warrant and the search is not contemporaneous with an
arrest, a warrant must be obtained to validate the search. This is
the holding of past cases, and I do not question it.

															[ Footnote 2/9 ]

															Act of June 15, 1935, c. 259, § 2, 49 Stat. 378, as amended, 18
U.S.C. § 3053.

															[ Footnote 2/10 ]

															Act of June 18, 1934, c. 595, 48 Stat. 1008, as amended, 18
U.S.C. § 3052.

															[ Footnote 2/11 ]

															Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S.C. §
3056 (1964 ed., Supp. IV).

															[ Footnote 2/12 ]

															Act of July 18, 1956, as amended, Tit. I, § 104(a), 70 Stat.
570, 26 U.S.C. § 7607(2).

															[ Footnote 2/13 ]

															Congress' expedition was possible partly because the same change
had earlier been approved by a Senatorial committee. S.Rep. No.
2464, 81st Cong., 2d Sess. (1950).

															[ Footnote 2/14 ]

															There was no dispute between the two Coplon courts on
this point, since it was well established that even a private
person could make a warrantless arrest at common law for a felony
which had actually been committed, and a peace officer could make
such an arrest if he had reasonable cause to believe the offense
had been committed. 1 J. Stephen, A History of the Criminal Law of
England 193 (1883); 2 M. Hale, Pleas of the Crown 71-104 (first
American ed. 1847).

															[ Footnote 2/15 ]

															A search without a warrant

															"can survive constitutional inhibition only upon a showing that
the surrounding facts brought it within one of the exceptions to
the rule that a search must rest upon a search warrant. Jones
v. United States, 357 U. S. 493 , 357 U. S.
499 ; United States v. Jeffers, 342 U. S.
48 , 342 U. S. 51 ." Rios v. United States, 364 U.
S. 253 , 364 U. S. 261 (1960); Stoner v. California, 376 U.
S. 483 , 376 U. S. 486 (1964). And

															"a search can be incident to an arrest only if it is
substantially contemporaneous with the arrest and is confined to
the immediate vicinity of the arrest. Angello v. United
States, 269 U. S. 20 ." Stoner v. California, supra, at 357 U. S. 486 ; James v. Louisiana, 382 U. S. 36 , 382 U. S. 37 (1965). There is thus no question that a warrant to search
petitioner's house would have been required had he not been
arrested there. In such cases, the officers are not already
lawfully on the premises, and there is not so often the same risk
of the destruction of evidence nor the necessity to make an
immediate search without the delay involved in securing a
warrant.


U.S. Supreme Court United States v. Edwards, 415
U.S. 800 (1974) United States v.
Edwards No. 73-88 Argued January 15,
1974 Decided March 26,
1974 415
U.S. 800 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH
CIRCUIT Syllabus Respondent Edwards was arrested shortly after 11 p.m. on May 31,
1970, and taken to jail. The next morning, a warrantless seizure
was made of his clothing and over his objection at his later trial,
which resulted in conviction, was used as evidence. The Court of
Appeals reversed. Though conceding the legality of the arrest, that
probable cause existed for believing that the clothing would reveal
incriminating evidence, and that searches and seizures that could
be made at the time of arrest may be legally conducted when the
accused arrives at the place of detention, the court held that the
warrantless seizure of Edwards' clothing "after the administrative
process and the mechanics of the arrest [had] come to a halt" was
unconstitutional. Held: The search and seizure of Edwards' clothing did
not violate the Fourth Amendment. Pp. 415 U. S.
802 -809.

															(a) At the time Edwards was placed in his cell, the normal
processes incident to arrest and custody had not been completed,
and the delay in seizing the clothing was not unreasonable, since,
at that late hour, no substitute clothing was available, and when,
the next morning, the police were able to supply substitute
clothing and took Edwards' clothing for laboratory analysis, they
did no more than they were entitled to do incident to the usual
arrest and incarceration. Pp. 415 U. S.
804 -805.

															(b) Once an accused has been lawfully arrested and is in
custody, the effects in his possession at the place of detention
that were subject to search at the time and place of arrest may
lawfully be searched and seized without a warrant even after a
substantial time lapse between the arrest and later administrative
processing, on the one hand, and the taking of the property for use
as evidence, on the other. Pp. 415 U. S.
806 -808.

															474 F.2d 1206, reversed.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
STEWART, Page 415 U. S. 801 J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and
MARSHALL, JJ., joined, post, p. 415 U. S.
809 .

															MR. .JUSTICE WHITE delivered the opinion of the Court.

															The question here is whether the Fourth Amendment should be
extended to exclude from evidence certain clothing taken from
respondent Edwards while he was in custody at the city jail
approximately 10 hours after his arrest. Shortly after 11 p.m. on
May 31, 1970, respondent Edwards was lawfully arrested on the
streets of Lebanon, Ohio, and charged with attempting to break into
that city's Post Office. [ Footnote
1 ] He was taken to the local jail and placed in a cell.
Contemporaneously or shortly thereafter, investigation at the scene
revealed that the attempted entry had been made through a wooden
window which apparently had been pried up with a pry bar, leaving
paint chips on the window sill and wire mesh Page 415 U. S. 802 screen. The next morning, trousers and a T-shirt were purchased
for Edwards to substitute for the clothing which he had been
wearing at the time of and since his arrest. His clothing was then
taken from him and held as evidence. Examination of the clothing
revealed paint chips matching the samples that had been taken from
the window. This evidence and his clothing were received at trial
over Edwards' objection that neither the clothing nor the results
of its examination were admissible because the warrantless seizure
of his clothing was invalid under the Fourth Amendment.

															The Court of Appeals reversed. Expressly disagreeing with two
other Courts of Appeals, [ Footnote
2 ] it held that, although the arrest was lawful and probable
cause existed to believe that paint chips would be discovered on
respondent's clothing, the warrantless seizure of the clothing
carried out "after the administrative process and the mechanics of
the arrest have come to a halt" was nevertheless unconstitutional
under the Fourth Amendment. 474 F.2d 1206, 1211 (CA6 1973). We
granted certiorari, 414 U.S. 818, and now conclude that the Fourth
Amendment should not be extended to invalidate the search and
seizure in the circumstances of this case.

															The prevailing rule under the Fourth Amendment that searches and
seizures may not be made without a warrant is subject to various
exceptions. One of them permits warrantless searches incident to
custodial arrests, United States v. Robinson, 414 U.
S. 218 (1973); Chimel v. California, 395 U. S. 752 , 395 U. S. 755 (1969); Weeks v. United States, 232 U.
S. 383 , 232 U. S. 392 (1914), and has traditionally been justified by the reasonableness
of searching for weapons, instruments of escape, and evidence of
crime Page 415 U. S. 803 when a person is taken into official custody and lawfully
detained. United States v. Robinson, supra. [ Footnote 3 ]

															It is also plain that searches and seizures that could be made
on the spot at the time of arrest may legally be conducted later
when the accused arrives at the place of detention. If need be, Abel v. United States, 362 U. S. 217 (1960), settled this question. There, the defendant was arrested at
his hotel, but the belongings taken with him to the place of
detention were searched there. In sustaining the search, the Court
noted that a valid search of the property could have been made at
the place of arrest and perceived little difference

															"when the accused decides to take the property with him, for the
search of it to occur instead at the first place of detention when
the accused arrives there, especially as the search of property
carried by an accused to the place of detention has additional
justifications, similar to those which justify a search of the
person of one who is arrested." Id. at 362 U. S. 239 .
The courts of appeals have followed this same rule, holding that
both the person and the property in his immediate possession may be
searched at the station house after the arrest has occurred at
another place and if evidence of crime is discovered, it may be
seized and admitted in evidence. [ Footnote 4 ] Nor is there any doubt Page 415 U. S. 804 that clothing or other belongings may be seized upon arrival of
the accused at the place of detention and later subjected to
laboratory analysis, or that the test results are admissible at
trial. [ Footnote 5 ]

															Conceding all this, the Court of Appeals in this case
nevertheless held that a warrant is required where the search
occurs after the administrative mechanics of arrest have been
completed and the prisoner is incarcerated. But even on these
terms, it seems to us that the normal processes incident to arrest
and custody had not been completed when Edwards was placed in his
cell on the night of May 31. With or without probable cause, the
authorities were entitled at that point not only to search Edwards'
clothing, but also to take it from him and keep it in official
custody. There was testimony that this was the standard practice in
this city. [ Footnote 6 ] The
police Page 415 U. S. 805 were also entitled to take from Edwards any evidence of the
crime in his immediate possession, including his clothing. And the
Court of Appeals acknowledged that contemporaneously with or
shortly after the time Edwards went to his cell, the police had
probable cause to believe that the articles of clothing he wore
were themselves material evidence of the crime for which he had
been arrested. 47 F.2d at 1210. But it was late at night; no
substitute clothing was then available for Edwards to wear, and it
would certainly have been unreasonable for the police to have
stripped respondent of his clothing and left him exposed in his
cell throughout the night. Cf. United states v. Caruso, 358 F.2d 184, 185-186 (CA2), cert. denied, 385 U.S. 862
(1966). When the substitutes were purchased the next morning, the
clothing he had been wearing at the time of arrest was taken from
him and subjected to laboratory analysis. This was no more than
taking from respondent the effects in his immediate possession that
constituted evidence of crime. This was and is a normal incident of
a custodial arrest, and reasonable delay in effectuating it does
not change the fact that Edwards was no more imposed upon than he
could have been at the time and place of the arrest or immediately
upon arrival at the place of detention. The police did no more on
June 1 than they were entitled to do incident to the usual
custodial arrest and incarceration. Page 415 U. S. 806 Other closely related considerations sustain the examination of
the clothing in this case. It must be remembered that, on both May
31 and June 1, the police had lawful custody of Edwards and
necessarily of the clothing he wore. When it became apparent that
the articles of clothing were evidence of the crime for which
Edwards was being held, the police were entitled to take, examine,
and preserve them for use as evidence, just as they are normally
permitted to seize evidence of crime when it is lawfully
encountered. Chimel v. California, 395 U.
S. 752 (1969); Frazier v. Cupp, 394 U.
S. 731 (1969); Warden v. Hayden, 387 U.
S. 294 (1967); Ker v. California, 374 U. S.
23 (1963) (plurality opinion); Zap v. United
States, 328 U. S. 624 (1946), vacated on other grounds, 330 U.S. 800 (1947).
Surely, the clothes could have been brushed down and vacuumed while
Edwards had them on in the cell, and it was similarly reasonable to
take and examine them as the police did, particularly in view of
the existence of probable cause linking the clothes to the crime.
Indeed, it is difficult to perceive what is unreasonable about the
police's examining and holding as evidence those personal effects
of the accused that they already have in their lawful custody as
the result of a lawful arrest.

															In Cooper v. California, 386 U. S.
58 (1967), an accused had been arrested for a narcotics
offense and his automobile impounded preparatory to institution of
forfeiture proceedings. The car was searched a week later without a
warrant and evidence seized that was later introduced at the
defendant's criminal trial. The warrantless search and seizure were
sustained because they were

															"closely related to the reason petitioner was arrested, the
reason his car had been impounded, and the reason it was being
retained. . . . It would be unreasonable to hold that the police,
having to retain the car in their Page 415 U. S. 807 custody for such a length of time, had no right, even for their
own protection, to search it." Id. at 386 U. S. 61 -62.
It was no answer to say that the police could have obtained a
search warrant, for the Court held the test to be not whether it
was reasonable to procure a search warrant, but whether the search
itself was reasonable, which it was. Id. at 386 U. S. 62 . United states v. Caruso, supra, expresses similar views.
There, defendant's clothes were not taken until six hours after his
arrival at a place of detention. The Court of Appeals properly held
that no warrant was required:

															"He and his clothes were constantly in custody from the moment
of his arrest, and the inspection of his clothes and the holding of
them for use in evidence were, under the circumstances, reasonable
and proper."

															358 F.2d at 185 (citations omitted). Caruso is typical of most cases in the courts of
appeals that have long since concluded that, once the accused is
lawfully arrested and is in custody, the effects in his possession
at the place of detention that were subject to search at the time
and place of his arrest may lawfully be searched and seized without
a warrant even though a substantial period of time has elapsed
between the arrest and subsequent administrative processing, on the
one hand, and the taking of the property for use as evidence, on
the other. This is true where the clothing or effects are
immediately seized upon arrival at the jail, held under the
defendant's name in the "property room" of the jail, and at a later
time searched and taken for use at the subsequent criminal trial.
[ Footnote 7 ] The result is
the Page 415 U. S. 808 same where the property is not physically taken from the
defendant until sometime after his incarceration. [ Footnote 8 ]

															In upholding this search and seizure, we do not conclude that
the Warrant Clause of the Fourth Amendment is never applicable to
post-arrest seizures of the effects of an arrestee. [ Footnote 9 ] But we do think that the Court of
Appeals for the First Circuit captured the essence of situations
like this when it said, in United States v. DeLeo, 422
F.2d 487, 493 (1970) (footnote omitted):

															"While the legal arrest of a person should not destroy the
privacy of his premises, it does -- for at Page 415 U. S. 809 least a reasonable time and to a reasonable extent -- take his
own privacy out of the realm of protection from police interest in
weapons, means of escape, and evidence."

															The judgment of the Court of Appeals is reversed. So ordered. [ Footnote 1 ]

															Edwards (hereafter also referred to as respondent) had an
alleged confederate, William T. Livesay, who was corespondent in
this case, but died after the petition for certiorari was granted.
We therefore vacate the judgment as to him and remand the case to
the District Court with directions to dismiss the indictment. Durham v. United States, 401 U. S. 481 (1971).

															[ Footnote 2 ]

															The Court stated that it could not agree with United States
v. Williams, 416 F.2d 4 (CA5 1969), and United States v.
Caruso, 358 F.2d 184 (CA2), cert. denied, 385 U.S.
862 (1966).

															[ Footnote 3 ]

															"A custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest requires no
additional justification. It is the fact of the lawful arrest which
establishes the authority to search, and we hold that, in the case
of a lawful custodial arrest, a full search of the person is not
only an exception to the warrant requirement of the Fourth
Amendment, but is also a 'reasonable' search under that
Amendment." United States v. Robinson, supra at 415 U. S.
235 .

															[ Footnote 4 ] United States v. Manar, 454 F.2d 34 (CA7 1971); United States v. Gonzalez-Perez, 426 F.2d 1283 (CA5 1970); United States v. DeLeo, 422 F.2d 487 (CA1 1970); United States v. Williams, supra; United States v. Miles, 413 F.2d 34 (CA3 1969); Ray v. United States, 412 F.2d
1052 (CA9 1969); Westover v. United States, 394 F.2d 164
(CA9 1968); United States v. Frankenberry, 387 F.2d 337
(CA2 1967); Evalt v. United States, 382 F.2d 424 (CA9
1967); Malone v. Crouse, 380 F.2d 741 (CA10 1967); Cotton v. United States, 371 F.2d 385 (CA9 1967); Miller v. Eklund, 364 F.2d 976 (CA9 1966); Hancock v.
Nelson, 363 F.2d 249 (CA1 1966); Golliher v. United
States, 362 F.2d 594 (CA8 1966); Rodgers v. United
States, 362 F.2d 358 (CA8), cert. denied, 385 U.S.
993 (1966); United States v. Caruso, supra; Whalem v. United
States, 120 U.S.App.D.C. 331 346 F.2d 812, cert.
denied, 382 U.S. 862 (1965); Grillo v. United States, 336 F.2d 211 (CA1 1964), cert. denied sub nom. Gorin v. United
States, 379 U.S. 971 (1965); Robinson v. United
States, 109 U.S.App.D.C. 22, 283 F.2d 508 (1960); Baskerville v. United States, 227 F.2d 454 (CA10
1955).

															[ Footnote 5 ] See, e.g., United States v. Caruso, supra; United States v.
Williams, supra; Golliher v. United States, supra; Whalem v. United
States, supra; Robinson v. United States, supra; Evalt v. United
States, supra; Hancock v. Nelson, supra. [ Footnote 6 ]

															App. 6. Historical evidence points to the established and
routine custom of permitting a jailer to search the person who is
being processed for confinement under his custody and control. See, e.g., T. Gardner & V. Manian, Principles and
Cases of the Law of Arrest, Search, and Seizure 200 (1974); E.
Fisher, Search and Seizure 71 (1970). While "[a] rule of practice
must not be allowed . . . to prevail over a constitutional right," Gouled v. United States, 255 U. S. 298 , 255 U. S. 313 (1921), little doubt has ever been expressed about the validity or
reasonableness of such searches incident to incarceration. T.
Taylor, Two Studies in Constitutional Interpretation 50 (1969).

															[ Footnote 7 ] See Evalt v. United States, 382 F.2d 424 (CA9 1967); Westover v. United States, 394 F.2d 164 (CA9 1968); Baskerville v. United States, 227 F.2d 454 (CA10 1955). In Baskerville, the effects were taken for safekeeping on
December 23 but reexamined and taken as evidence on January 6. Brett v. United States, 412 F.2d 401 (CA5 1969), is contra. There, the defendant's clothes were taken from him
shortly after arrival at the jail, as was the custom, and held in
the property room of the jail. Three days later, the clothing was
searched, and incriminating evidence found. A divided panel of the
Court of Appeals held the evidence inadmissible for want of a
warrant authorizing the search.

															[ Footnote 8 ] Hancock v. Nelson, 363 F.2d 249 (CA1 1966); Malone
v. Crouse, 380 F.2d 741 (CA10 1967); United States v.
Caruso, 358 F.2d 184 (CA2 1966). In Hancock, the
defendant was first taken into custody at 12:51 a.m. His clothes
were taken at 2 p.m. on the same day, two hours after probable
cause to do so eventuated.

															[ Footnote 9 ]

															Holding the Warrant Clause inapplicable in the circumstances
present here does not leave law enforcement officials subject to no
restraint. This type of police conduct "must [still] be tested by
the Fourth Amendment's general proscription against unreasonable
searches and seizures." Terry v. Ohio, 392 U. S.
1 , 392 U. S. 20 (1968). But the Court of Appeals here conceded that probable cause
existed for the search and seizure of respondent's clothing, and
respondent complains only that a warrant should have been secured.
We thus have no occasion to express a view concerning those
circumstances surrounding custodial searches incident to
incarceration which might "violate the dictates of reason either
because of their number or their manner of perpetration." Charles v. United States, 278 F.2d 386, 389 (CA9), cert. denied, 364 U.S. 831 (1960). Cf. Schmerber v.
California, 384 U. S. 757 (1966); Rochin v. California, 342 U.
S. 165 (1952).

															MR JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.

															The Court says that the question before us "is whether the
Fourth Amendment should be extended" to prohibit the warrantless
seizure of Edwards' clothing. I think, on the contrary, that the
real question in this case is whether the Fourth Amendment is to be
ignored. For, in my view, the judgment of the Court of Appeals can
be reversed only by disregarding established Fourth Amendment
principles firmly embodied in many previous decisions of this
Court.

															As the Court has repeatedly emphasized in the past,

															"the most basic constitutional rule in this area is that
'searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment -- subject only to a few specifically
established and well delineated exceptions.'" Coolidge v. New Hampshire, 403 U.
S. 443 , 403 U. S. 451 155; Katz v. United States, 389 U.
S. 347 , 389 U. S. 357 .
Since it is conceded here that the seizure of Edwards' clothing was
not made pursuant to a warrant, the question becomes whether the
Government has met its burden of showing that the circumstances of
this seizure brought it within one of the "jealously and carefully
drawn" [ Footnote 2/1 ] exceptions to
the warrant requirement. Page 415 U. S. 810 The Court finds a warrant unnecessary in this case because of
the custodial arrest of the respondent. It is, of course, well
settled that the Fourth Amendment permits a warrantless search or
seizure incident to a constitutionally valid custodial arrest. United States v. Robinson, 414 U.
S. 218 ; Chimel v. California, 395 U.
S. 752 . But the mere fact of an arrest does not allow
the police to engage in warrantless searches of unlimited
geographic or temporal scope. Rather, the search must be spatially
limited to the person of the arrestee and the area within his
reach, Chimel v. California, supra, and must, as to time,
be "substantially contemporaneous with the arrest," Stoner v.
California, 376 U. S. 483 , 376 U. S. 486 ; Preston v. United States, 376 U.
S. 364 , 376 U. S.
367 -368.

															Under the facts of this case, I am unable to agree with the
Court's holding that the search was "incident" to Edwards'
custodial arrest. The search here occurred fully 10 hours after he
was arrested, at a time when the administrative processing and
mechanics of arrest had long since come to an end. His clothes were
not seized as part of an "inventory" of a prisoner's effects, nor
were they taken pursuant to a routine exchange of civilian clothes
for jail garb. [ Footnote 2/2 ] And
the considerations that typically justify a warrantless search
incident to a lawful arrest were wholly absent here. As Mr.
Justice Page 415 U. S. 811 Black stated for a unanimous Court in Preston v. United
States, supra, at 376 U. S.
367 :

															"The rule allowing contemporaneous searches is justified, for
example, by the need to seize weapons and other things which might
be used to assault an officer or effect an escape, as well as by
the need to prevent the destruction of evidence of the crime --
things which might easily happen where the weapon or evidence is on
the accused's person or under his immediate control. But these
justifications are absent where a search is remote in time or place
from the arrest. [ Footnote
2/3 ]"

															Accordingly, I see no justification for dispensing with the
warrant requirement here. The police had ample time to seek a
warrant, and no exigent circumstances were present to excuse their
failure to do so. Unless the exceptions to the warrant requirement
are to be "enthroned into the rule," United States v.
Rabinowitz, 339 U. S. 56 , 339 U. S. 80 (Frankfurter, J., dissenting), this is precisely the sort of
situation where the Fourth Amendment requires a magistrate's prior
approval for a search.

															The Court says that the relevant question is "not whether it was
reasonable to procure a search warrant, but whether the search
itself was reasonable." Ante at 415 U. S. 807 .
Precisely such a view, however, was explicitly rejected in Chimel v. California, supra, at 395 U. S.
764 -765, where the Court characterized the argument
as

															"founded on little more than a subjective view regarding the
acceptability of certain sorts of police conduct, and not on
considerations relevant to Fourth Amendment interests."

															As Page 415 U. S. 812 they were in Chimel, the words of Mr. Justice
Frankfurter are again most relevant here:

															"To say that the search must be reasonable is to require some
criterion of reason. It is no guide at all either for a jury or for
district judges or the police to say that an 'unreasonable search'
is forbidden -- that the search must be reasonable. What is the
test of reason which makes a search reasonable? The test is the
reason underlying and expressed by the Fourth Amendment: the
history and the experience which it embodies and the safeguards
afforded by it against the evils to which it was a response. There
must be a warrant to permit search, barring only inherent
limitations upon that requirement when there is a good excuse for
not getting a search warrant. . . ." United States v. Rabinowitz, supra, at 339 U. S. 83 (dissenting opinion).

															The intrusion here was hardly a shocking one, and it cannot be
said that the police acted in bad faith. The Fourth Amendment,
however, was not designed to apply only to situations where the
intrusion is massive and the violation of privacy shockingly
flagrant. Rather, as the Court's classic admonition in Boyd v.
United States, 116 U. S. 616 , 116 U. S. 635 ,
put the matter:

															"It may be that it is the obnoxious thing in its mildest and
least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent
approaches and slight deviations from legal modes of procedure.
This can only be obviated by adhering to the rule that
constitutional provisions for the security of person and property
should be liberally construed. A close and literal construction
deprives them of half their efficacy, and leads to gradual
depreciation of the right, Page 415 U. S. 813 as if it consisted more in sound than in substance. It is the
duty of courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon."

															Because I believe that the Court today unjustifiably departs
from well settled constitutional principles, I respectfully
dissent.

															[ Footnote 2/1 ] Jones v. United States, 357 U.
S. 493 , 357 U. S.
499 .

															[ Footnote 2/2 ]

															The Government conceded at oral argument that the seizure of the
respondent's clothing was not a matter of routine jail procedure,
but was undertaken solely for the purpose of searching for the
incriminating paint chips.

															No contention is made that the warrantless seizure of the
clothes was necessitated by the exigencies of maintaining
discipline or security within the jail system. There is thus no
occasion to consider the legitimacy of warrantless searches or
seizures in a penal institution based upon that quite different
rationale.

															[ Footnote 2/3 ]

															No claim is made that the police feared that Edwards either
possessed a weapon or was planning to destroy the paint chips on
his clothing. Indeed, the Government has not even suggested that he
was aware of the presence of the paint chips on his clothing.