U.S. Supreme Court Zurcher v. Stanford Daily, 436
U.S. 547 (1978) Zurcher v. Stanford
Daily No. 76-1484 Argued January 17,
1978 Decided May 31, 1978 436
U.S. 547 ast|>* 436
U.S. 547 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus Respondents, a student newspaper that had published articles and
photographs of a clash between demonstrators and police at a
hospital, and staff members, brought this action under 42 U.S.C. §
1983 against, among others, petitioners, law enforcement and
district attorney personnel, claiming that a search pursuant to a
warrant issued on a judge's finding of probable cause that the
newspaper (which was not involved in the unlawful acts) possessed
photographs and negatives revealing the identities of demonstrators
who had assaulted police officers at the hospital had deprived
respondents of their constitutional rights. The District Court
granted declaratory relief, holding that the Fourth Amendment as
made applicable to the States by the Fourteenth forbade the
issuance of a warrant to search for materials in possession of one
not suspected of crime unless there is probable cause, based on
facts presented in a sworn affidavit, to believe that a subpoena duces tecum would be impracticable. Failure to honor the
subpoena would not, alone, justify issuance of a warrant; it would
also have to appear that the possessor of the objects sought would
disregard a court order not to remove or destroy them. The court
also held that, where the innocent object of the search is a
newspaper, First Amendment interests make the search
constitutionally permissible

															"only in the rare circumstance where there is a clear showing
that (1) important materials will be destroyed or removed from the
jurisdiction; and (2) a restraining order would be futile."

															The Court of Appeals affirmed. Held: 1. A State is not prevented by the Fourth and Fourteenth
Amendments from issuing a warrant to search for evidence simply
because the owner or possessor of the place to be searched is not
reasonably suspected of criminal involvement. The critical element
in a reasonable search is not that the property owner is suspected
of crime, but that there is reasonable cause to believe that the
"things" to be searched for and seized are located on the property
to which entry is sought. Pp. 436 U. S.
553 -560.

															2. The District Court's new rule denying search warrants against
third Page 436 U. S. 548 parties and insisting on subpoenas would undermine law
enforcement efforts, since search warrants are often used early in
an investigation before all the perpetrators of a crime have been
identified, and the seemingly blameless third party may be
implicated. The delay in employing a subpoena duces tecum could easily result in disappearance of the evidence. Nor would the
cause of privacy be served, since search warrants are more
difficult to obtain than subpoenas. Pp. 436 U. S.
560 -563.

															3. Properly administered, the preconditions for a search warrant
(probable cause, specificity with respect to the place to be
searched and the things to be seized, and overall reasonableness),
which must be applied with particular exactitude when First
Amendment interests would be endangered by the search, are adequate
safeguards against the interference with the press' ability to
gather, analyze, and disseminate news that respondents claim would
ensue from use of warrants for third-party searches of newspaper
offices. Pp. 436 U. S.
563 -567.

															550 F.2d 464, reversed.

															WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J.,
filed a concurring opinion, post, p. 436 U. S. 568 .
STEWART, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 436 U. S. 570 .
STEVENS, J., filed a dissenting opinion, post, p. 436 U. S. 577 .
BRENNAN, J., took no part in the consideration or decision of the
cases. Page 436 U. S. 549 MR. JUSTICE WHITE delivered the opinion of the Court.

															The terms of the Fourth Amendment, applicable to the States by
virtue of the Fourteenth Amendment, are familiar:

															"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."

															As heretofore understood, the Amendment has not been a barrier
to warrants to search property on which there is Page 436 U. S. 550 probable cause tax believe that fruits, instrumentalities, or
evidence of crime is located, whether or not the owner or possessor
of the premises to be searched is himself reasonably suspected of
complicity in the crime being investigated. We are now asked to
reconstrue the Fourth Amendment and to hold for the first time
that, when the place to be searched is occupied by a person not
then a suspect, a warrant to search for criminal objects and
evidence reasonably believed to be located there should not issue
except in the most unusual circumstances, and that, except in such
circumstances, a subpoena duces tecum must be relied upon
to recover the objects or evidence sought. I Late in the day on Friday, April 9, 1971, officers of the Palo
Alto Police Department and of the Santa Clara County Sheriff's
Department responded to a call from the director of the Stanford
University Hospital requesting the removal of a large group of
demonstrators who had seized the hospital's administrative offices
and occupied them since the previous afternoon. After several
futile efforts to persuade the demonstrators to leave peacefully,
more drastic measures were employed. The demonstrators had
barricaded the doors at both ends of a hall adjacent to the
administrative offices. The police chose to force their way in at
the west end of the corridor. As they did so, a group of
demonstrators emerged through the doors at the east end and, armed
with sticks and clubs, attacked the group of nine police officers
stationed there. One officer was knocked to the floor and struck
repeatedly on the head; another suffered a broken shoulder. All
nine were injured. [ Footnote 1 ]
There were no police photographers at the east doors, and most
bystanders and reporters were on the west side. The officers
themselves were able to identify only two of their Page 436 U. S. 551 assailants, but one of them did see at least one person
photographing the assault at the east doors.

															On Sunday, April 11, a special edition of the Stanford Daily
(Daily), a student newspaper published at Stanford University,
carried articles and photographs devoted to the hospital protest
and the violent clash between demonstrators and police. The
photographs carried the byline of a Daily staff member and
indicated that he had been at the east end of the hospital hallway
where he could have photographed the assault on the nine officers.
The next day, the Santa Clara County District Attorney's Office
secured a warrant from the Municipal Court for an immediate search
of the Daily's offices for negatives, film, and pictures showing
the events and occurrences at the hospital on the evening of April
9. The warrant issued on a finding of

															"just, probable and reasonable cause for believing that:
Negatives and photographs and films, evidence material and relevant
to the identity of the perpetrators of felonies, to-wit, Battery on
a Peace Officer, and Assault with Deadly Weapon, will be located
[on the premises of the Daily]."

															App. 31-32. The warrant affidavit contained no allegation or
indication that members of the Daily staff were in any way involved
in unlawful acts at the hospital.

															The search pursuant to the warrant was conducted later that day
by four police officers, and took place in the presence of some
members of the Daily staff. The Daily's photographic laboratories,
filing cabinets, desks, and wastepaper baskets were searched.
Locked drawers and rooms were not opened. The officers apparently
had opportunity to read notes and correspondence during the search;
but, contrary to claims of the staff, the officers denied that they
had exceeded the limits of the warrant. [ Footnote 2 ] They had not been advised by the staff that
the areas they were searching contained confidential materials. The
search revealed only the photographs that had already Page 436 U. S. 552 been published on April 11, and no materials were removed from
the Daily's office.

															A month later, the Daily and various members of its staff,
respondents here, brought a civil action in the United States
District Court for the Northern District of California seeking
declaratory and injunctive relief under 42 U.S.C. § 1983 against
the police officers who conducted the search, the chief of police,
the district attorney and one of his deputies, and the judge who
had issued the warrant. The complaint alleged that the search of
the Daily's office had deprived respondents under color of state
law of rights secured to them by the First, Fourth, and Fourteenth
Amendments of the United States Constitution.

															The District Court denied the request for an injunction but, on
respondents' motion for summary judgment, granted declaratory
relief. 353 F.
Supp. 124 (1972). The court did not question the existence of
probable cause to believe that a crime had been committed and to
believe that relevant evidence would be found on the Daily's
premises. It held, however, that the Fourth and Fourteenth
Amendments forbade the issuance of a warrant to search for
materials in possession of one not suspected of crime unless there
is probable cause to believe, based on facts presented in a sworn
affidavit, that a subpoena duces tecum would be
impracticable. Moreover, the failure to honor a subpoena would not
alone justify a warrant; it must also appear that the possessor of
the objects sought would disregard a court order not to remove or
destroy them. The District Court further held that, where the
innocent object of the search is a newspaper, First Amendment
interests are also involved, and that such a search is
constitutionally permissible

															"only in the rare circumstance where there is a clear
showing that (1) important materials will be destroyed or
removed from the jurisdiction; and (2) a restraining order
would be futile." Id. at 135. Since these preconditions to a valid
warrant had not been satisfied here, Page 436 U. S. 553 the search of the Daily's offices was declared to have been
illegal. The Court of Appeals affirmed per curiam, adopting the
opinion of the District Court. 550 F.2d 464 (CA9 1977). [ Footnote 3 ] We issued the writs of
certiorari requested by petitioners. 434 U.S. 816 (1977). [ Footnote 4 ] We reverse. II The issue here is how the Fourth Amendment is to be construed
and applied to the "third party" search, the recurring situation
where state authorities have probable cause to believe that fruits,
instrumentalities, or other evidence of crime is located on
identified property, but do not then have probable cause to believe
that the owner or possessor of the property is himself implicated
in the crime that has occurred or is occurring. Because, under the
District Court's rule, impracticability can be shown only by
furnishing facts demonstrating that the third party will not only
disobey the subpoena but also ignore a restraining order not to
move or destroy the property, it is apparent that only in unusual
situations could the State satisfy such a severe burden, and that,
for all practical purposes, the effect of the rule is that fruits,
instrumentalities, and evidence of crime may be recovered from
third parties only by subpoena, not by search warrant. At least we
assume that the District Court did not intend its rule to be
toothless, and anticipated that only subpoenas would be available
in many cases where, without the rule, a search warrant would
issue. Page 436 U. S. 554 It is an understatement to say that there is no direct authority
in this or any other federal court for the District Court's
sweeping revision of the Fourth Amendment. [ Footnote 5 ] Under existing law, valid warrants may be
issued to search any property, whether or not occupied by
a third party, at which there is probable cause to believe that
fruits, instrumentalities, or evidence of a crime will be found.
Nothing on the face of the Amendment suggests that a third-party
search warrant should not normally issue. The Warrant Clause speaks
of search warrants issued on "probable cause" and "particularly
describing the place to be searched, and the persons or things to
be seized." In situations where the State does not seek to seize
"persons," but only those "things" which there is probable cause to
believe are located on the place to be searched, there is no
apparent basis in the language of the Amendment for also imposing
the requirements for a valid arrest -- probable cause to believe
that the third party is implicated in the crime.

															As the Fourth Amendment has been construed and applied by this
Court,

															"when the State's reason to believe incriminating evidence will
be found becomes sufficiently great, the invasion of privacy
becomes justified and a warrant to search and seize will
issue." Fisher v. United States, 425 U.
S. 391 , 425 U. S. 400 (1976). In Camara v. Municipal Court, 387 U.
S. 523 , 387 U. S.
534 -535 (1967), we indicated that in applying the
"probable cause" standard "by which a particular decision to search
is Page 436 U. S. 555 tested against the constitutional mandate of reasonableness," it
is necessary "to focus upon the governmental interest which
allegedly justifies official intrusion" and that, in criminal
investigations, a warrant to search for recoverable items is
reasonable "only when there is probable cause' to believe that
they will be uncovered in a particular dwelling." Search warrants
are not directed at persons; they authorize the search of
"place[s]" and the seizure of "things," and, as a constitutional
matter, they need not even name the person from whom the things
will be seized. United States v. Kahn, 415 U.
S. 143 , 415 U. S. 155 n. 15 (1974). Because the State's interest in enforcing the criminal law and
recovering evidence is the same whether the third party is culpable
or not, the premise of the District Court's holding appears to be
that state entitlement to a search warrant depends on the
culpability of the owner or possessor of the place to be searched
and on the State's right to arrest him. The cases are to the
contrary. Prior to Camara v. Municipal Court, supra, and See v. Seattle, 387 U. S. 541 (1967), the central purpose of the Fourth Amendment was seen to be
the protection of the individual against official searches for
evidence to convict him of a crime. Entries upon property for civil
purposes, where the occupant was suspected of no criminal conduct
whatsoever, involved a more peripheral concern and the less intense
"right to be secure from intrusion into personal privacy." Frank v. Maryland, 359 U. S. 360 , 359 U. S. 365 (1959); Camara v. Municipal Court, supra, at 387 U. S. 530 .
Such searches could proceed without warrant, as long as the State's
interest was sufficiently substantial. Under this view, the Fourth
Amendment was more protective where the place to be
searched was occupied by one suspected of crime and the search was
for evidence to use against him. Camara and See, disagreeing with Frank to this extent, held that a warrant is required where entry is sought for civil purposes, as well as when criminal law enforcement is involved.
Neither Page 436 U. S. 556 case, however, suggested that, to secure a search warrant, the
owner or occupant of the place to be inspected or searched must be
suspected of criminal involvement. Indeed, both cases held that a
less stringent standard of probable cause is acceptable where the
entry is not to secure evidence of crime against the possessor.

															We have suggested nothing to the contrary since Camara and See. Indeed, Colonnade Catering Corp. v. United
States, 397 U. S. 72 (1970), and United States v. Biswell, 406 U.
S. 311 (1972), dispensed with the warrant requirement in
cases involving limited types of inspections and searches.

															The critical element in a reasonable search is not that the
owner of the property is suspected of crime, but that there is
reasonable cause to believe that the specific "things" to be
searched for and seized are located on the property to which entry
is sought. [ Footnote 6 ] In Carroll v. United States, 267 U.
S. 132 Page 436 U. S. 557 (1925), it was claimed that the seizure of liquor was
unconstitutional because the occupant of a car stopped with
probable cause to believe that it was carrying illegal liquor was
not subject to arrest. The Court, however, said:

															"If their theory were sound, their conclusion would be. The
validity of the seizure then would turn wholly on the validity of
the arrest without a seizure. But the theory is unsound. The right
to search and the validity of the seizure are not dependent on the
right to arrest. They are dependent on the reasonable cause the
seizing officer has for belief that the contents of the automobile
offend against the law." Id. at 158-159. The Court's ultimate conclusion was
that "the officers here had justification for the search and
seizure," that is, a reasonable "belief that intoxicating liquor
was being transported in the automobile which they stopped and
searched." Id. at 267 U. S. 162 . See also Husty v. United States, 282 U. S. 694 , 282 U. S.
700 -701 (1931). Page 436 U. S. 558 Federal Rule Crim.Proc. 41, which reflects "[t]he Fourth
Amendment's policy against unreasonable searches and seizures," United States v. Ventresca, 380 U.
S. 102 , 380 U. S. 105 n. 1 (1965), authorizes warrants to search for contraband, fruits
or instrumentalities of crime, or "any . . property that
constitutes evidence of the commission of a criminal offense. . .
." Upon proper showing, the warrant is to issue "identifying the
property and naming or describing the person or place to be
searched." Probable cause for the warrant must be presented, but
there is nothing in the Rule indicating that the officers must be
entitled to arrest the owner of the "place" to be searched before a
search warrant may issue and the "property" may be searched for and
seized. The Rule deals with warrants to search, and is unrelated to
arrests. Nor is there anything in the Fourth Amendment indicating
that, absent probable cause to arrest a third party, resort must be
had to a subpoena. [ Footnote
7 ]

															The Court of Appeals for the Sixth Circuit expressed the correct
view of Rule 41 and of the Fourth Amendment when, contrary to the
decisions of the Court of Appeals and the District Court in the
present litigation, it ruled that,

															"[o]nce it is established that probable cause exists to believe
a federal crime has been committed, a warrant may issue for the
search of any property which the magistrate has probable cause to
believe may be the place of concealment of evidence of the
crime." United States v. Manufacturers Nat. Bank of Detroit, 536 F.2d 699, 703 (1976), cert. denied sub nom. Wingate v.
United States, 429 U.S. 1039 (1977). Accord, State v.
Tunnel Citgo Services, 149 N.J.Super. 427, 433, 374 A.2d 32 , 35 (1977).

															The net of the matter is that "[s]earches and seizures, in a Page 436 U. S. 559 technical sense, are independent of, rather than ancillary to,
arrest and arraignment." ALI, A Model Code of Pre-Arraignment
Procedure, Commentary 491 (Proposed Off.Draft 1975). The Model Code
provides that the warrant application

															"shall describe with particularity the individuals or places to
be searched and the individuals or things to be seized, and shall
be supported by one or more affidavits particularly setting forth
the facts and circumstances tending to show that such individuals
or things are or will be in the places, or the things are or will
be in possession of the individuals, to be searched."

															§ SS 20.1(3). There is no suggestion that the occupant of the
place to be searched must himself be implicated in misconduct.

															Against this background, it is untenable to conclude that
property may not be searched unless its occupant is reasonably
suspected of crime and is subject to arrest. And if those
considered free of criminal involvement may nevertheless be
searched or inspected under civil statutes, it is difficult to
understand why the Fourth Amendment would prevent entry onto their
property to recover evidence of a crime not committed by them, but
by others. As we understand the structure and language of the
Fourth Amendment and our cases expounding it, valid warrants to
search property may be issued when it is satisfactorily
demonstrated to the magistrate that fruits, instrumentalities, or
evidence of crime is located on the premises. The Fourth Amendment
has itself struck the balance between privacy and public need, and
there is no occasion or justification for a court to revise the
Amendment and strike a new balance by denying the search warrant in
the circumstances present here, and by insisting that the
investigation proceed by subpoena duces tecum, whether on
the theory that the latter is a less intrusive alternative or
otherwise.

															This is not to question that "reasonableness" is the overriding
test of compliance with the Fourth Amendment or to assert that
searches, however or whenever executed, may never Page 436 U. S. 560 be unreasonable if supported by a warrant issued on probable
cause and properly identifying the place to be searched and the
property to be seized. We do hold, however, that the courts may
not, in the name of Fourth Amendment reasonableness, prohibit the
States from issuing warrants to search for evidence simply because
the owner or possessor of the place to be searched is not then
reasonably suspected of criminal involvement. III In any event, the reasons presented by the District Court and
adopted by the Court of Appeals for arriving at its remarkable
conclusion do not withstand analysis. First, as we have said, it is
apparent that, whether the third-party occupant is suspect or not,
the State's interest in enforcing the criminal law and recovering
the evidence remains the same; and it is the seeming innocence of
the property owner that the District Court relied on to foreclose
the warrant to search. But, as respondents themselves now concede,
if the third party knows that contraband or other illegal materials
are on his property, he is sufficiently culpable to justify the
issuance of a search warrant. Similarly, if his ethical stance is
the determining factor, it seems to us that, whether or not he
knows that the sought-after articles are secreted on his property
and whether or not he knows that the articles are in fact the
fruits, instrumentalities, or evidence of crime, he will be so
informed when the search warrant is served, and it is doubtful that
he should then be permitted to object to the search, to withhold,
if it is there, the evidence of crime reasonably believed to be
possessed by him or secreted on his property, and to forbid the
search and insist that the officers serve him with a subpoena duces tecum. Second, we are unpersuaded that the District Court's new rule
denying search warrants against third parties and insisting on
subpoenas would substantially further privacy interests without
seriously undermining law enforcement efforts. Because of the
fundamental public interest in implementing Page 436 U. S. 561 the criminal law, the search warrant, a heretofore effective and
constitutionally acceptable enforcement tool, should not be
suppressed on the basis of surmise and without solid evidence
supporting the change. As the District Court understands it,
denying third-party search warrants would not have substantial
adverse effects on criminal investigations because the nonsuspect
third party, once served with a subpoena, will preserve the
evidence and ultimately lawfully respond. The difficulty with this
assumption is that search warrants are often employed early in an
investigation, perhaps before the identity of any likely criminal
and certainly before all the perpetrators are or could be known.
The seemingly blameless third party in possession of the fruits or
evidence may not be innocent at all; and if he is, he may
nevertheless be so related to or so sympathetic with the culpable
that he cannot be relied upon to retain and preserve the articles
that may implicate his friends, or at least not to notify those who
would be damaged by the evidence that the authorities are aware of
its location. In any event, it is likely that the real culprits
will have access to the property, and the delay involved in
employing the subpoena duces tecum, offering as it does
the opportunity to litigate its validity, could easily result in
the disappearance of the evidence, whatever the good faith of the
third party.

															Forbidding the warrant and insisting on the subpoena instead
when the custodian of the object of the search is not then
suspected of crime, involves hazards to criminal investigation much
more serious than the District Court believed; and the record is
barren of anything but the District Court's assumptions to support
its conclusions. [ Footnote 8 ]
At the very least, the Page 436 U. S. 562 burden of Justifying a major revision of the Fourth Amendment
has not been carried.

															We are also not convinced that the net gain to privacy interests
by the District Court's new rule would be worth the candle.
[ Footnote 9 ] In the normal
course of events, search warrants are Page 436 U. S. 563 more difficult to obtain than subpoenas, since the latter do not
involve the judiciary and do not require proof of probable cause.
Where, in the real world, subpoenas would suffice, it can be
expected that they will be employed by the rational prosecutor. On
the other hand, when choice is available under local law and the
prosecutor chooses to use the search warrant, it is unlikely that
he has needlessly selected the more difficult course. His choice is
more likely to be based on the solid belief, arrived at through
experience but difficult, if not impossible, to sustain in a
specific case, that the warranted search is necessary to secure and
to avoid the destruction of evidence. [ Footnote 10 ] IV The District Court held, and respondents assert here, that
whatever may be true of third-party searches generally, where the
third party is a newspaper, there are additional factors derived
from the First Amendment that justify a nearly per se rule
forbidding the search warrant and permitting only the subpoena duces tecum. The general submission is that searches of
newspaper offices for evidence of crime reasonably believed to be
on the premises will seriously threaten the ability of the press to
gather, analyze, and disseminate news. This is said to be true for
several reasons: first, searches will be physically disruptive to
such an extent that timely publication will be impeded. Second,
confidential sources of information Page 436 U. S. 564 will dry up, and the press will also lose opportunities to cover
various events because of fears of the participants that press
files will be readily available to the authorities. Third,
reporters will be deterred from recording and preserving their
recollections for future use if such information is subject to
seizure. Fourth, the processing of news and its dissemination will
be chilled by the prospects that searches will disclose internal
editorial deliberations. Fifth, the press will resort to
self-censorship to conceal its possession of information of
potential interest to the police.

															It is true that the struggle from which the Fourth Amendment
emerged "is largely a history of conflict between the Crown and the
press," Stanford v. Texas, 379 U.
S. 476 , 379 U. S. 482 (1965), and that, in issuing warrants and determining the
reasonableness of a search, state and federal magistrates should be
aware that "unrestricted power of search and seizure could also be
an instrument for stifling liberty of expression." Marcus v.
Search Warrant, 367 U. S. 717 , 367 U. S. 729 (1961). Where the materials sought to be seized may be protected by
the First Amendment, the requirements of the Fourth Amendment must
be applied with "scrupulous exactitude." Stanford v. Texas,
supra at 436 U. S.
485 .

															"A seizure reasonable as to one type of material in one setting
may be unreasonable in a different setting or with respect to
another kind of material." Roaden v. Kentucky, 413 U. S. 496 , 413 U. S. 501 (1973). Hence, in Stanford v. Texas, the Court invalidated
a warrant authorizing the search of a private home for all books,
records, and other materials relating to the Communist Party, on
the ground that, whether or not the warrant would have been
sufficient in other contexts, it authorized the searchers to
rummage among and make judgments about books and papers, and was
the functional equivalent of a general warrant, one of the
principal targets of the Fourth Amendment. Where presumptively
protected materials are sought to be seized, the warrant
requirement should be administered to leave as little as possible
to the discretion or whim of the officer in the field. Page 436 U. S. 565 Similarly; where seizure is sought of allegedly obscene
materials, the judgment of the arresting officer alone is
insufficient to justify issuance of a search warrant or a seizure
without a warrant incident to arrest. The procedure for determining
probable cause must afford an opportunity for the judicial officer
to "focus searchingly on the question of obscenity." Marcus v.
Search Warrant, supra at 367 U. S. 732 ; A Quantity of Books v. Kansas, 378 U.
S. 205 , 378 U. S. 210 (1964); Lee Art Theatre, Inc. v. Virginia, 392 U.
S. 636 , 392 U. S. 637 (1968); Roaden v. Kentucky, supra, at 413 U. S. 502 ; Heller v. New York, 413 U. S. 483 , 413 U. S. 489 (1973).

															Neither the Fourth Amendment nor the cases requiring
consideration of First Amendment values in issuing search warrants,
however, call for imposing the regime ordered by the District
Court. Aware of the long struggle between Crown and press and
desiring to curb unjustified official intrusions, the Framers took
the enormously important step of subjecting searches to the test of
reasonableness and to the general rule requiring search warrants
issued by neutral magistrates. They nevertheless did not forbid
warrants where the press was involved, did not require special
showings that subpoenas would be impractical, and did not insist
that the owner of the place to be searched, if connected with the
press, must be shown to be implicated in the offense being
investigated. Further, the prior cases do no more than insist that
the courts apply the warrant requirements with particular
exactitude when First Amendment interests would be endangered by
the search. As we see it, no more than this is required where the
warrant requested is for the seizure of criminal evidence
reasonably believed to be on the premises occupied by a newspaper.
Properly administered, the preconditions for a warrant -- probable
cause, specificity with respect to the place to be searched and the
things to be seized, and overall reasonableness -- should afford
sufficient protection against the harms that are assertedly
threatened by warrants for searching newspaper offices. Page 436 U. S. 566 There is no reason to believe, for example, that magistrates
cannot guard against searches of the type, scope, and intrusiveness
that would actually interfere with the timely publication of a
newspaper. Nor, if the requirements of specificity and
reasonableness are properly applied, policed, and observed, will
there be any occasion or opportunity for officers to rummage at
large in newspaper files or to intrude into or to deter normal
editorial and publication decisions. The warrant issued in this
case authorized nothing of this sort. Nor are we convinced, any
more than we were in Branzburg v. Hayes, 408 U.
S. 665 (1972), that confidential sources will disappear
and that the press will suppress news because of fears of warranted
searches. Whatever incremental effect there may be in this regard
if search warrants, as well as subpoenas, are permissible in proper
circumstances, it does not make a constitutional difference in our
judgment.

															The fact is that respondents and amici have pointed to
only a very few instances in the entire United States since 1971
involving the issuance of warrants for searching newspaper
premises. This reality hardly suggests abuse; and if abuse occurs,
there will be time enough to deal with it. Furthermore, the press
is not only an important, critical, and valuable asset to society,
but it is not easily intimidated -- nor should it be.

															Respondents also insist that the press should be afforded
opportunity to litigate the State's entitlement to the material it
seeks before it is turned over or seized, and that, whereas the
search warrant procedure is defective in this respect, resort to
the subpoena would solve the problem. The Court has held that a
restraining order imposing a prior restraint upon free expression
is invalid for want of notice and opportunity for a hearing, Carroll v. Princess Anne, 393 U.
S. 175 (1968), and that seizures not merely for use as
evidence but entirely removing arguably protected materials from
circulation may be effected only after an adversary hearing and a
judicial Page 436 U. S. 567 finding of obscenity. A Quantity of Books v. Kansas,
supra. But presumptively protected materials are not
necessarily immune from seizure under warrant for use at a criminal
trial. Not every such seizure, and not even most, will impose a
prior restraint. Heller v. New York, supra. And surely a
warrant to search newspaper premises for criminal evidence such as
the one issued here for news photographs taken in a public place
carries no realistic threat of prior restraint, or of any direct
restraint whatsoever on the publication of the Daily or on its
communication of ideas. The hazards of such warrants can be avoided
by a neutral magistrate carrying out his responsibilities under the
Fourth Amendment, for he has ample tools at his disposal to confine
warrants to search within reasonable limits.

															We note finally that, if the evidence sought by warrant is
sufficiently connected with the crime to satisfy the probable cause
requirement, it will very likely be sufficiently relevant to
justify a subpoena and to withstand a motion to quash. Further,
Fifth Amendment and state shield law objections that might be
asserted in opposition to compliance with a subpoena are largely
irrelevant to determining the legality of a search warrant under
the Fourth Amendment. Of course, the Fourth Amendment does not
prevent or advise against legislative or executive efforts to
establish nonconstitutional protections against possible abuses of
the search warrant procedure, but we decline to reinterpret the
Amendment to impose a general constitutional barrier against
warrants to search newspaper premises, to require resort to
subpoenas as a general rule, or to demand prior notice and hearing
in connection with the issuance of search warrants. V We accordingly reject the reasons given by the District Court
and adopted by the Court of Appeals for holding the search for
photographs at the Stanford Daily to have been Page 436 U. S. 568 unreasonable within the meaning of the Fourth Amendment and in
violation of the First Amendment. Nor has anything else presented
here persuaded us that the Amendments forbade this search. It
follows that the judgment of the Court of Appeals is reversed. So ordered. MR. JUSTICE BRENNAN took no part in the consideration or
decision of these cases.

															* Together with No. 76-1600, Bergna, District Attorney of
Santa Clara County, et al. v. Stanford Daily et al., also on
certiorari to the same court.

															[ Footnote 1 ]

															There was extensive damage to the administrative offices
resulting from the occupation and the removal of the
demonstrators.

															[ Footnote 2 ]

															The District Court did not find it necessary to resolve this
dispute.

															[ Footnote 3 ]

															The Court of Appeals also approved the award of attorney's fees
to respondents pursuant to the Civil Rights Attorney's Fees Awards
Act of 1976, 42 U.S.C. § 1988 (1976 ed.). We do not consider the
propriety of this award in light of our disposition on the merits
reversing the judgment upon which the award was predicated.

															[ Footnote 4 ]

															Petitioners in No. 76-1484 are the chief of police and the
officers under his command who conducted the search. Petitioners in
No. 76-1600 are the district attorney and a deputy district
attorney who participated in the obtaining of the search warrant.
The action against the judge who issued the warrant was
subsequently dismissed upon the motion of respondents.

															[ Footnote 5 ]

															Respondents rely on four state cases to support the holding that
a warrant may not issue unless it is shown that a subpoena is
impracticable: Owens v. Way, 141 Ga. 796, 82 S.E. 132
(1914); Newberry v. Carpenter, 107 Mich. 567, 65 N.W. 530
(1895); People v. Carver, 172 Misc. 820, 16 N.Y.S.2d 268
(County Ct. 1939); and Commodity Mfg. Co. v. Moore, 198
N.Y.S. 45 (Sup.Ct. 1923). None of these cases, however, stands for
the proposition arrived at by the District Court and urged by
respondents. The District Court also drew upon Bacon v. United
States, 449 F.2d 933 (CA9 1971), but that case dealt with
arrest of a material witness, and is unpersuasive with respect to
the search for criminal evidence.

															[ Footnote 6 ]

															The same view has been expressed by those who have given close
attention to the Fourth Amendment.

															"It does not follow, however, that probable cause for arrest
would justify the issuance of a search warrant, or, on the other
hand, that probable cause for a search warrant would necessarily
justify an arrest. Each requires probabilities as to somewhat
different facts and circumstances -- a point which is seldom made
explicit in the appellate cases. . . . "

															"This means, for one thing, that, while probable cause for
arrest requires information justifying a reasonable belief that a
crime has been committed and that a particular person committed it,
a search warrant may be issued on a complaint which does not
identify any particular person as the likely offender. Because the
complaint for a search warrant is not 'filed as the basis of a
criminal prosecution,' it need not identify the person in charge of
the premises or name the person in possession or any other person
as the offender."

															LaFave, Search and Seizure: "The Course of True Law . . . Has
Not . . . Run Smooth," U.Ill.Law Forum 255, 260-261 (1966)
(footnotes omitted).

															"Furthermore, a warrant may issue to search the premises of
anyone without any showing that the occupant is guilty of any
offense whatever."

															T. Taylor, Two Studies in Constitutional Interpretation 449
(1969).

															"Search warrants may be issued only by a neutral and detached
judicial officer, upon a showing of probable cause -- that is,
reasonable grounds to believe -- that criminally related objects
are in the place which the warrant authorizes to be searched, at
the time when the search is authorized to be conducted."

															Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev.
349, 358 (1974) (footnotes omitted).

															"Two conclusions necessary to the issuance of the warrant must
be supported by substantial evidence: that the items sought are in
fact seizable by virtue of being connected with criminal activity,
and that the items will be found in the place to be searched. By
comparison, the right of arrest arises only when a crime is
committed or attempted in the presence of the arresting officer or
when the officer has 'reasonable grounds to believe' -- sometimes
stated 'probable cause to believe' -- that a felony has been
committed by the person to be arrested. Although it would appear
that the conclusions which justify either arrest or the issuance of
a search warrant must be supported by evidence of the same degree
of probity, it is clear that the conclusions themselves are not
identical."

															"In the case of arrest, the conclusion concerns the guilt of the
arrestee, whereas, in the case of search warrants, the conclusions
go to the connection of the items sought with crime and to their
present location."

															Comment, 28 U.Chi.L.Rev. 664, 687 (1961) (footnotes
omitted).

															[ Footnote 7 ]

															Petitioners assert that third-party searches have long been
authorized under Cal.Penal Code Ann. § 1524 (West 1970), which
provides that fruits, instrumentalities, and evidence of crime "may
be taken on the warrant from any place, or from any person in whose
possession [they] may be." The District Court did not advert to
this provision.

															[ Footnote 8 ]

															It is also far from clear, even apart from the dangers of
destruction and removal, whether the use of the subpoena duces
tecum under circumstances where there is probable cause to
believe that a crime has been committed and that the materials
sought constitute evidence of its commission will result in the
production of evidence with sufficient regularity to satisfy the
public interest in law enforcement. Unlike the individual whose
privacy is invaded by a search, the recipient of a subpoena may
assert the Fifth Amendment privilege against self-incrimination in
response to a summons to produce evidence or give testimony. See Maness v. Meyers, 419 U. S. 449 (1975). This privilege is not restricted to suspects. We have
construed it broadly as covering any individual who might be
incriminated by the evidence in connection with which the privilege
is asserted. Hoffman v. United States, 341 U.
S. 479 (1951). The burden of overcoming an assertion of
the Fifth Amendment privilege, even if prompted by a desire not to
cooperate, rather than any real fear of self-incrimination, is one
which prosecutors would rarely be able to meet in the early stages
of an investigation despite the fact they did not regard the
witness as a suspect. Even time spent litigating such matters could
seriously impede criminal investigations.

															[ Footnote 9 ]

															We reject totally the reasoning of the District Court that
additional protections are required to assure that the Fourth
Amendment rights of third parties are not violated because of the
unavailability of the exclusionary rule as a deterrent to improper
searches of premises in the control of nonsuspects. 353 F.
Supp. 124 , 131-132 (1972). In Alderman v. United
States, 394 U. S. 165 (1969), we expressly ruled that suppression of the fruits of a
Fourth Amendment violation may be urged only by those whose rights
were infringed by the search itself, and not by those aggrieved
solely by the introduction of incriminating evidence. The predicate
for this holding was that the additional deterrent effect of
permitting defendants whose Fourth Amendment rights had not been
violated to challenge infringements of the privacy interests of
others did not "justify further encroachment upon the public
interest in prosecuting those accused of crime and having them
acquitted or convicted on the basis of all the evidence which
exposes the truth." Id. at 394 U. S. 175 .
For similar reasons, we conclude that the interest in deterring
illegal third-party searches does not justify a rule such as that
adopted by the District Court. It is probably seldom that police,
during the investigatory stage, when most searches occur, will be
so convinced that no potential defendant will have standing to
exclude evidence on Fourth Amendment grounds that they will feel
free to ignore constitutional restraints. In any event, it would be
placing the cart before the horse to prohibit searches otherwise
conforming to the Fourth Amendment because of a perception that the
deterrence provided by the existing rules of standing is
insufficient to discourage illegal searches. Cf. Warden v.
Hayden, 387 U. S. 294 , 387 U. S. 309 (1967). Finally, the District Court overlooked the fact that the
California Supreme Court has ruled as a matter of state law that
the legality of a search and seizure may be challenged by anyone
against whom evidence thus obtained is used. Kaplan v. Superior
Court, 6 Cal. 3d 150 ,
491 P.2d 1 (1971).

															[ Footnote 10 ]

															Petitioners assert that the District Court ignored the realities
of California law and practice that are said to preclude or make
very difficult the use of subpoenas as investigatory techniques. If
true, the choice of procedures may not always be open to the
diligent prosecutor in the State of California.

															MR. JUSTICE POWELL, concurring.

															I join the opinion of the Court, and I write simply to emphasize
what I take to be the fundamental error of MR. JUSTICE STEWART's
dissenting opinion. As I understand that opinion, it would read
into the Fourth Amendment, as a new and per se exception,
the rule that any search of an entity protected by the Press Clause
of the First Amendment is unreasonable so long as a subpoena could
be used as a substitute procedure. Even aside from the difficulties
involved in deciding on a case-by-case basis whether a subpoena can
serve as an adequate substitute, [ Footnote 2/1 ] I agree with the Court that there is no
constitutional basis for such a reading. Page 436 U. S. 569 If the Framers had believed that the press was entitled to a
special procedure, not available to others, when government
authorities required evidence in its possession, one would have
expected the terms of the Fourth Amendment to reflect that belief.
As the opinion of the Court points out, the struggle from which the
Fourth Amendment emerged was that between Crown and press. Ante at 436 U. S. 564 .
The Framers were painfully aware of that history, and their
response to it was the Fourth Amendment. Ante at 436 U. S. 565 .
Hence, there is every reason to believe that the usual procedures
contemplated by the Fourth Amendment do indeed apply to the press,
as to every other person.

															This is not to say that a warrant which would be sufficient to
support the search of an apartment or an automobile necessarily
would be reasonable in supporting the search of a Page 436 U. S. 570 newspaper office. As the Court's opinion makes clear, ante at 436 U. S. 564 565, the magistrate must judge the reasonableness of every warrant
in light of the circumstances of the particular case, carefully
considering the description of the evidence sought, the situation
of the premises, and the position and interests of the owner or
occupant. While there is no justification for the establishment of
a separate Fourth Amendment procedure for the press, a magistrate
asked to issue a warrant for the search of press offices can and
should take cognizance of the independent values protected by the
First Amendment -- such as those highlighted by MR. JUSTICE STEWART
-- when he weighs such factors. If the reasonableness and
particularity requirements are thus applied, the dangers are likely
to be minimal. [ Footnote 2/2 ] Ibid. In any event, considerations such as these are the province of
the Fourth Amendment. There is no authority either in history or in
the Constitution itself for exempting certain classes of persons or
entities from its reach. [ Footnote
2/3 ]

															[ Footnote 2/1 ]

															For example, respondents had announced a policy of destroying
any photographs that might aid prosecution of protesters. App. 118,
152-153. While this policy probably reflected the deep feelings of
the Vietnam era, and one may assume that, under normal
circumstances, few, if any, press entities would adopt a policy so
hostile to law enforcement, respondents' policy at least
illustrates the possibility of such hostility. Use of a subpoena,
as proposed by the dissent, would be of no utility in face of a
policy of destroying evidence. And unless the policy were publicly
announced, it probably would be difficult to show the
impracticality of a subpoena as opposed to a search warrant.

															At oral argument, counsel for respondents stated that the
announced policy of the Stanford Daily conceivably could have
extended to the destruction of evidence of any crime:

															"QUESTION: Let us assume you had a picture of the commission of
a crime. For example, in banks they take pictures regularly of, not
only of robbery, but of murder committed in a bank, and there have
been pictures taken of the actual pulling of the trigger or the
pointing of the gun and pulling of the trigger. There is a very
famous one related to the assassination of President Kennedy."

															"What would the policy of the Stanford Daily be with
respect to that? Would it feel free to destroy it at any time
before a subpoena had been served?"

															"MR. FALK: The -- literally read, the policy of the Daily requires me to give an affirmative answer. I find it
hard to believe that, in an example such as that, that the policy
would have been carried out. It was not addressed to a picture of
that kind or in that context."

															"QUESTION: Well, I am sure you were right. I was just getting to
the scope of your theory."

															"MR. FALK: Our -- "

															"QUESTION: What is the difference between the pictures Justice
Powell just described and the pictures they were thought to
have?"

															"MR. FALK: Well, it simply is a distinction that -- "

															"QUESTION: Attacking police officers instead of the President.
That is the only difference."

															Tr. of Oral Arg. 39-40. While the existence of this policy was
not before the magistrate at the time of the warrant's issuance, 353 F.
Supp. 124 , 135 n. 16 (ND Cal.1972), it illustrates the possible
dangers of creating separate standards for the press alone.

															[ Footnote 2/2 ]

															Similarly, the magnitude of a proposed search directed at any
third party and the nature and significance of the material sought
are factors properly considered as bearing on the reasonableness
and particularity requirements. Moreover, there is no reason why
police officers executing a warrant should not seek the cooperation
of the subject party, in order to prevent needless disruption.

															[ Footnote 2/3 ]

															The concurring opinion in Branzburg v. Hayes, 408 U. S. 665 , 408 U. S.
709 -710 (1972) (POWELL, J.), does not support the view
that the Fourth Amendment contains an implied exception for the
press, through the operation of the First Amendment. That opinion
noted only that in considering a motion to quash a subpoena
directed to a newsman, the court should balance the competing
values of a free press and the societal interest in detecting and
prosecuting crime. The concurrence expressed no doubt as to the
applicability of the subpoena procedure to members of the press.
Rather than advocating the creation of a special procedural
exception for the press, it approved recognition of First Amendment
concerns within the applicable procedure. The concurring opinion
may, however, properly be read as supporting the view expressed in
the text above, and in the Court's opinion, that under the warrant
requirement of the Fourth Amendment, the magistrate should consider
the values of a free press as well as the societal interest in
enforcing the criminal laws.

															MR. JUSTICE STEWART, with whom MR. JUSTICE MARSHALL joins,
dissenting.

															Believing that the search by the police of the offices of
the Page 436 U. S. 571 Stanford Daily infringed the First and Fourteenth Amendments'
guarantee of a free press, I respectfully dissent. [ Footnote 3/1 ] I It seems to me self-evident that police searches of newspaper
offices burden the freedom of the press. The most immediate and
obvious First Amendment injury caused by such a visitation by the
police is physical disruption of the operation of the newspaper.
Policemen occupying a newsroom and searching it thoroughly for what
may be an extended period of time [ Footnote 3/2 ] will inevitably interrupt its normal
operations, and thus impair or even temporarily prevent the
processes of newsgathering, writing, editing, and publishing. By
contrast, a subpoena would afford the newspaper itself an
opportunity to locate whatever material might be requested and
produce it.

															But there is another and more serious burden on a free press
imposed by an unannounced police search of a newspaper office: the
possibility of disclosure of information received from confidential
sources, or of the identity of the sources themselves. Protection
of those sources is necessary to ensure that Page 436 U. S. 572 the press can fulfill its constitutionally designated function
of informing the public, [ Footnote
3/3 ] because important information can often be obtained only
by an assurance that the source will not be revealed. Branzburg
v. Hayes, 408 U. S. 665 , 408 U. S.
725 -736 (dissenting opinion). [ Footnote 3/4 ] And the Court has recognized that,
" without some protection for seeking out the news, freedom of
the press could be eviscerated.'" Pell v. Procunier, 417 U. S. 817 , 417 U. S.
833 . Today, the Court does not question the existence of this
constitutional protection, but says only that it is not "convinced
. . . that confidential sources will disappear and that the press
will suppress news because of fears of warranted searches." Ante at 436 U. S. 566 .
This facile conclusion seems to me to ignore common experience. It
requires no blind leap of faith to understand that a person who
gives information to a journalist only on condition that his
identity will not be revealed will be less likely to give that
information if he knows that, despite the journalist's assurance,
his identity may in fact be disclosed. And it cannot be denied that
confidential information may be exposed to the eyes of police
officers who execute a search warrant by rummaging through the
files, cabinets, desks, and wastebaskets of a newsroom. [ Footnote 3/5 ] Since the indisputable effect
of such searches will thus be to prevent a newsman from being able
to promise confidentiality to his potential sources, it seems
obvious to me that a journalist's Page 436 U. S. 573 access to information, and thus the public's, will thereby be
impaired. [ Footnote 3/6 ]

															A search warrant allows police officers to ransack the files of
a newspaper, reading each and every document until they have found
the one named in the warrant, [ Footnote
3/7 ] while a subpoena would permit the newspaper itself to
produce only the specific documents requested. A search, unlike a
subpoena, will therefore lead to the needless exposure of
confidential information completely unrelated to the purpose of the
investigation. The knowledge that police officers can make an
unannounced raid on a newsroom is thus bound to have a deterrent
effect on the availability of confidential news sources. The end
result, wholly inimical to the First Amendment, will be a
diminishing flow of potentially important information to the
public.

															One need not rely on mere intuition to reach this conclusion.
The record in this case includes affidavits not only from members
of the staff of the Stanford Daily but also from many professional
journalists and editors, attesting to precisely such personal
experience. [ Footnote 3/8 ] Despite
the Court's rejection of this Page 436 U. S. 574 uncontroverted evidence, I believe it clearly establishes that
unannounced police searches of newspaper offices will significantly
burden the constitutionally protected function of the press to
gather news and report it to the public. II In Branzburg v. Hayes, supra, the more limited
disclosure of a journalist's sources caused by compelling him to
testify was held to be justified by the necessity of

															"pursuing and prosecuting those crimes reported to the press by
informants, and . . . thus deterring the commission of such crimes
in the future."

															408 U.S. at 408 U. S. 695 .
The Court found that these important societal interests would be
frustrated if a reporter were able to claim an absolute privilege
for his confidential sources. In the present case, however, the
respondents do not claim that any of the evidence sought was
privileged from disclosure; they claim only that a subpoena would
have served equally well to produce that evidence. Thus, we are not
concerned with the principle, central to Branzburg, that
" the public . . . has a right to every man's evidence,'" id. at 408 U. S. 688 ,
but only with whether any significant societal interest would be
impaired if the police were generally required to obtain evidence
from the press by means of a subpoena, rather than a
search. It is well to recall the actual circumstances of this
litigation. The application for a warrant showed only that there
was reason to believe that photographic evidence of assaults on the
police would be found in the offices of the Stanford Daily. There
was no emergency need to protect life or property by an Page 436 U. S. 575 immediate search. The evidence sought was not contraband, but
material obtained by the Daily in the normal exercise of its
journalistic function. Neither the Daily nor any member of its
staff was suspected of criminal activity. And there was no showing
that the Daily would not respond to a subpoena commanding
production of the photographs, or that, for any other reason, a
subpoena could not be obtained. Surely, then, a subpoena duces
tecum would have been just as effective as a police raid in
obtaining the production of the material sought by the Santa Clara
County District Attorney.

															The District Court and the Court of Appeals clearly recognized
that, if the affidavits submitted with a search warrant application
should demonstrate probable cause to believe that a subpoena would
be impractical, the magistrate must have the authority to issue a
warrant. In such a case, by definition, a subpoena would not be
adequate to protect the relevant societal interest. But they held,
and I agree, that a warrant should issue only after the magistrate
has performed the careful "balanc[ing] of these vital
constitutional and societal interests." Branzburg v. Hayes,
supra at 408 U. S. 710 (POWELL, J., concurring). [ Footnote
3/9 ]

															The decisions of this Court establish that a prior adversary
judicial hearing is generally required to assess in advance any
threatened invasion of First Amendment liberty. [ Footnote 3/10 ] A search by police officers affords
no timely opportunity for such a Page 436 U. S. 576 hearing, since a search warrant is ordinarily issued ex
parte upon the affidavit of a policeman or prosecutor. There
is no opportunity to challenge the necessity for the search until
after it has occurred and the constitutional protection of the
newspaper has been irretrievably invaded.

															On the other hand, a subpoena would allow a newspaper, through a
motion to quash, an opportunity for an adversary hearing with
respect to the production of any material which a prosecutor might
think is in its possession. This very principle was emphasized in
the Branzburg case:

															"[I]f the newsman is called upon to give information bearing
only a remote and tenuous relationship to the subject of the
investigation, or if he has some other reason to believe that his
testimony implicates confidential source relationships without a
legitimate need of law enforcement, he will have access to the
court on a motion to quash and an appropriate protective order may
be entered."

															408 U.S. at 408 U. S. 710 (POWELL, J., concurring). See also id. at 408 U. S.
707 -708 (opinion of Court). If, in the present
litigation, the Stanford Daily had been served with a subpoena, it
would have had an opportunity to demonstrate to the court what the
police ultimately found to be true -- that the evidence sought did
not exist. The legitimate needs of government thus would have been
served without infringing the freedom of the press. III Perhaps, as a matter of abstract policy, a newspaper office
should receive no more protection from unannounced police searches
than, say, the office of a doctor or the office of a bank. But we
are here to uphold a Constitution. And our Constitution does not
explicitly protect the practice of medicine or the business of
banking from all abridgment by government. It does explicitly
protect the freedom of the press. Page 436 U. S. 577 For these reasons I would affirm the judgment of the Court of
Appeals.

															[ Footnote 3/1 ]

															I agree with the Court that the Fourth Amendment does not forbid
the issuance of search warrants "simply because the owner or
possessor of the place to be searched is not then reasonably
suspected of criminal involvement." Ante at 436 U. S. 560 .
Thus, contrary to the understanding expressed in the concurring
opinion, I do not "read" anything "into the Fourth Amendment." Ante at 436 U. S. 568 .
Instead, I would simply enforce the provisions of the First
Amendment.

															[ Footnote 3/2 ]

															One search of a radio station in Los Angeles lasted over eight
hours. Note, Search and Seizure of the Media: A Statutory, Fourth
Amendment and First Amendment Analysis, 28 Stan.L.Rev. 957, 957-959
(1976).

															[ Footnote 3/3 ] See Mills v. Alabama, 384 U. S. 214 , 384 U. S. 219 ; New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 269 ; Grosjean v. American Press Co., 297 U.
S. 233 , 297 U. S.
250 .

															[ Footnote 3/4 ]

															Recognizing the importance of this confidential relationship, at
least 26 States have enacted so-called "shield laws" protecting
reporters. Note, The Newsman's Privilege After Branzburg: The Case for a Federal Shield Law, 24 UCLA L.Rev. 160, 167 n. 41
(1976).

															[ Footnote 3/5 ]

															In this case, the policemen executing the search warrant were
concededly in a position to read confidential material unrelated to
the object of their search; whether they in fact did so is
disputed.

															[ Footnote 3/6 ]

															This prospect of losing access to confidential sources may cause
reporters to engage in "self-censorship," in order to avoid
publicizing the fact that they may have confidential information. See New York Times Co. v. Sullivan, supra at 376 U. S. 279 ; Smith v. California, 361 U. S. 147 , 361 U. S. 154 .
Or journalists may destroy notes and photographs rather than save
them for reference and use in future stories. Either of these
indirect effects of police searches would further lessen the flow
of news to the public.

															[ Footnote 3/7 ]

															The Court says that, "if the requirements of specificity and
reasonableness are properly applied, policed, and observed," there
will be no opportunity for the police to "rummage at large in
newspaper files." Ante at 436 U. S. 566 .
But in order to find a particular document, no matter how
specifically it is identified in the warrant, the police will have
to search every place where it might be -- including, presumably,
every file in the office -- and to examine each document they find
to see if it is the correct one. I thus fail to see how the Fourth
Amendment would provide an effective limit to these searches.

															[ Footnote 3/8 ]

															According to these uncontradicted affidavits, when it becomes
known that a newsman cannot guarantee confidentiality, potential
sources of information often become unavailable. Moreover, efforts
are sometimes made, occasionally by force, to prevent reporters and
photographers from covering newsworthy events, because of fear that
the police will seize the newsman's notes or photographs as
evidence. The affidavits of the members of the staff of the
Stanford Daily give examples of how this very search produced such
an impact on the Daily's own journalistic functions.

															[ Footnote 3/9 ]

															The petitioners have argued here that, in fact, there was reason
to believe that the Daily would not honor a subpoena. Regardless of
the probative value of this information, it is irrelevant, since it
was not before the magistrate when he issued the warrant. Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 565 n. 8; Spinelli v. United States, 393 U.
S. 410 , 393 U. S. 413 n. 3; Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 109 n. 1; see Johnson v. United States, 333 U. S.
10 , 333 U. S.
13 -14.

															[ Footnote 3/10 ] E.g., United States v. Thirty-seven Photographs, 402 U. S. 363 ; Carroll v. Princess Anne, 393 U.
S. 175 ; Freedman v. Maryland, 380 U. S.
51 . Cf. Roaden v. Kentucky, 413 U.
S. 496 ; A Quantity of Books v. Kansas, 378 U. S. 205 ; Marcus v. Search Warrant, 367 U.
S. 717 .

															MR. JUSTICE STEVENS, dissenting.

															The novel problem presented by this case is an outgrowth of the
profound change in Fourth Amendment law that occurred in 1967, when Warden v. Hayden, 387 U. S. 294 , was
decided. The question is what kind of "probable cause" must be
established in order to obtain a warrant to conduct an unannounced
search for documentary evidence in the private files of a person
not suspected of involvement in any criminal activity. The Court
holds that a reasonable belief that the files contain relevant
evidence is a sufficient justification. This holding rests on a
misconstruction of history and of the Fourth Amendment's purposely
broad language.

															The Amendment contains two Clauses, one protecting "persons,
houses, papers, and effects, against unreasonable searches and
seizures," the other regulating the issuance of warrants:

															"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."

															When these words were written, the procedures of the Warrant
Clause were not the primary protection against oppressive searches.
It is unlikely that the authors expected private papers ever to be
among the "things" that could be seized with a warrant, for, only a
few years earlier, in 1765, Lord Camden had delivered his famous
opinion denying that any magistrate had power to authorize the
seizure of private papers. [ Footnote
4/1 ] Because all such Page 436 U. S. 578 seizures were considered unreasonable, the Warrant Clause was
not framed to protect against them.

															Nonetheless, the authors of the Clause used words that were
adequate for situations not expressly contemplated at the time. As
Mr. Justice Black noted, the Amendment does not "attempt to
describe with precision what was meant by its words probable
cause;'" the words of the Amendment are deliberately "imprecise and
flexible." [ Footnote 4/2 ] And MR.
JUSTICE STEWART, when confronted with the problem of applying the
probable cause standard in an unprecedented situation, observed
that "[t]he standard of reasonableness embodied in the Fourth
Amendment demands that the showing of justification match the
degree of intrusion." [ Footnote
4/3 ] Today, for the first time, the Court has an opportunity to
consider the kind of showing that is necessary to justify the
vastly expanded "degree of intrusion" upon privacy that is
authorized by the opinion in Warden v. Hayden,
supra. In the pre- Hayden era, warrants were used to search for
contraband, [ Footnote 4/4 ] weapons,
and plunder, but not for "mere evidence." [ Footnote 4/5 ] Page 436 U. S. 579 The practical effect of the rule prohibiting the issuance of
warrants to search for mere evidence was to narrowly limit not only
the category of objects, but also the category of persons and the
character of the privacy interests that might be affected by an
unannounced police search.

															Just as the witnesses who participate in an investigation or a
trial far outnumber the defendants, the persons who possess
evidence that may help to identify an offender, or explain an
aspect of a criminal transaction, far outnumber those who have
custody of weapons or plunder. Countless law-abiding citizens --
doctors, lawyers, merchants, customers, bystanders -- may have
documents in their possession that relate to an ongoing criminal
investigation. The consequences of subjecting this large category
of persons to unannounced police searches are extremely serious.
The ex parte warrant procedure enables the prosecutor to
obtain access to privileged documents that could not be examined if
advance notice gave the custodian an opportunity to object.
[ Footnote 4/6 ] The search for the
documents described in a warrant may involve the inspection Page 436 U. S. 580 of files containing other private matter. [ Footnote 4/7 ] The dramatic character of a sudden search
may cause an entirely unjustified injury to the reputation of the
persons searched. [ Footnote
4/8 ] Page 436 U. S. 581 Of greatest importance, however, is the question whether the
offensive intrusion on the privacy of the ordinary citizen is
justified by the law enforcement interest it is intended to
vindicate. Possession of contraband or the proceeds or tools of
crime gives rise to two inferences: that the custodian is involved
in the criminal activity, and that, if given notice of an intended
search, he will conceal or destroy what is being sought. The
probability of criminal culpability justifies the invasion of his
privacy; the need to accomplish the law enforcement purpose of the
search justifies acting without advance notice and by force, if
necessary. By satisfying the probable cause standard appropriate
for weapons or plunder, the police effectively demonstrate that no
less intrusive method of investigation will succeed.

															Mere possession of documentary evidence, however, is much less
likely to demonstrate that the custodian is guilty of any
wrongdoing or that he will not honor a subpoena or informal request
to produce it. In the pre- Hayden era, evidence of that
kind was routinely obtained by procedures that presumed that the
custodian would respect his obligation to obey subpoenas and to
cooperate in the investigation of crime. These procedures had a
constitutional dimension. For the innocent citizen's interest in
the privacy of his papers and possessions is an aspect of liberty
protected by the Due Process Clause of the Fourteenth Amendment.
Notice and an opportunity to object to the deprivation of the
citizen's liberty are, therefore, the constitutionally mandated
general rule. [ Footnote 4/9 ] An Page 436 U. S. 582 exception to that rule can only be justified by strict
compliance with the Fourth Amendment. That Amendment flatly
prohibits the issuance of any warrant unless justified by probable
cause.

															A showing of probable cause that was adequate to justify the
issuance of a warrant to search for stolen goods in the 18th
century does not automatically satisfy the new dimensions of the
Fourth Amendment in the post- Hayden era. [ Footnote 4/10 ] In Hayden itself, the
Court recognized that the meaning of probable cause should be
reconsidered in the light of the new authority it conferred on the
police. [ Footnote 4/11 ] The only
conceivable justification for an unannounced search of an innocent
citizen is the fear that, if notice were given, he would conceal or
destroy the object of the search. Probable cause to believe that
the Page 436 U. S. 583 custodian is a criminal, or that he holds a criminal's weapons,
spoils, or the like, justifies that fear, [ Footnote 4/12 ] and therefore such a showing complies
with the Clause. But if nothing said under oath in the warrant
application demonstrates the need for an unannounced search by
force, the probable cause requirement is not satisfied. In the
absence of some other showing of reasonableness, [ Footnote 4/13 ] the ensuing search violates the
Fourth Amendment.

															In this case, the warrant application set forth no facts
suggesting that respondents were involved in any wrongdoing or
would destroy the desired evidence if given notice of what the
police desired. I would therefore hold that the warrant did not
comply with the Warrant Clause and that the search was unreasonable
within the meaning of the first Clause of the Fourth Amendment.

															I respectfully dissent.

															[ Footnote 4/1 ]

															"Papers are the owner's goods and chattels: they are his dearest
property; and are so far from enduring a seizure, that they will
hardly bear an inspection; and though the eye cannot by the laws of
England be guilty of a trespass, yet where private papers are
removed and carried away, the secret nature of those goods will be
an aggravation of the trespass, and demand more considerable
damages in that respect. Where is the written law that gives any
magistrate such a power? I can safely answer, there is none; and
therefore it is too much for us without such authority to pronounce
a practice legal, which would be subversive of all the comforts of
society." Entick v. Carrington, 19 How.St.Tr. 1009, 1066
(1766).

															[ Footnote 4/2 ]

															"Obviously, those who wrote this Fourth Amendment knew from
experience that searches and seizures were too valuable to law
enforcement to prohibit them entirely, but also knew at the same
time that, while searches or seizures must not be stopped, they
should be slowed down, and warrants should be issued only after
studied caution. This accounts for use of the imprecise and
flexible term, 'unreasonable,' the key word permeating this whole
Amendment. Also it is noticeable that this Amendment contains no
appropriate language, as does the Fifth, to forbid the use and
introduction of search and seizure evidence even though secured
'unreasonably.' Nor does this Fourth Amendment attempt to describe
with precision what was meant by its words, 'probable cause;' nor
by whom the 'Oath or affirmation' should be taken; nor what it need
contain." Berger v. New York, 388 U. S. 41 , 388 U. S. 75 (Black, J., dissenting).

															[ Footnote 4/3 ] Id. at 388 U. S. 69 (STEWART, J., concurring in result).

															[ Footnote 4/4 ]

															It was stated in 1967 that about 95% of the search warrants
obtained by the office of the District Attorney for New York County
were for the purpose of seizing narcotics and arresting the
possessors. See T. Taylor, Two Studies in Constitutional
Interpretation 48, and n. 85 (1969).

															[ Footnote 4/5 ]

															Until 1967, when Warden v. Hayden was decided, our
cases interpreting the Fourth Amendment had drawn a

															"'distinction between merely evidentiary materials, on the one
hand, which may not be seized either under the authority of a
search warrant or during the course of a search incident to arrest,
and, on the other hand, those objects which may validly be seized,
including the instrumentalities and means by which a crime is
committed, the fruits of crime such as stolen property, weapons by
which escape of the person arrested might be effected, and property
the possession of which is a crime.'" See Warden v. Hayden, 387 U.S. at 387 U. S.
295 -296, quoting from Harris v. United States, 331 U. S. 145 , 331 U. S.
154 .

															[ Footnote 4/6 ]

															The suggestion that, instead of setting standards, we should
rely on the good judgment of the magistrate to prevent abuse
represents an abdication of the responsibilities this Court
previously accepted in carefully supervising the performance of the
magistrate's warrant-issuing function. See Aguilar v.
Texas, 378 U. S. 108 , 378 U. S.
111 .

															[ Footnote 4/7 ]

															"There are three considerations which support the conclusion
that private papers are central to the concerns of the fourth
amendment and which suggest that, in accord with the amendment's
privacy rationale, private papers should occupy a type of preferred
position. The first consideration is the very personal, private
nature of such papers. This rationale has been cogently articulated
on a number of occasions. Private papers have been said to be
'little more than an extension of [the owner's] person,' their
seizure 'a particularly abrasive infringement of privacy,' and
their protection 'impelled by the moral and symbolic need to
recognize and defend the private aspect of personality.' In this
sense, every governmental procurement of private papers, regardless
of how it is accomplished, is uniquely intrusive. In addition to
the nature of the papers themselves, a second reason for according
them strict protection concerns the nature of the search for
private papers. The fundamental evil at which the fourth amendment
was directed was the sweeping, exploratory search conducted
pursuant to a general warrant. A search involving private papers,
it has been noted, invariably partakes of a similar generality,
for"

															"even a search for a specific, identified paper may involve the
same rude intrusion [of an exploratory search] if the quest for it
leads to an examination of all of a man's private papers.'"

															"Thus, both their contents and the inherently intrusive nature
of a search for them militates toward the position that private
papers are deserving of the fullest possible fourth amendment
protection. Finally, not only is a search involving private papers
highly intrusive in fourth amendment terms, but the nature of the
papers themselves may implicate the policies of other
constitutional protections. In addition to the 'intimate' relation
with fifth amendment values, the obtaining of private papers by the
government touches upon the first amendment and the generalized
right of privacy."

															McKenna, The Constitutional Protection of Private Papers: The
Role of a Hierarchical Fourth Amendment, 53 Ind. L.J. 55, 68-69
(1977-1978) (footnotes omitted).

															[ Footnote 4/8 ]

															"Whether the search be for rubbish or narcotics, both innocent
and guilty will suffer the loss of the proprietary right of
privacy. The search for evidence of crime, however, threatens the
innocent with an injury not recognized in the cases. That is the
damage to reputation resulting from an overt manifestation of
official suspicion of crime. Connected with loss of reputation,
standing, or credit may be humiliation and other mental suffering.
The interests here at stake are the same which are recognized in
the common law actions for defamation and malicious prosecution.
Indeed, the loss of reputation and the humiliation resulting from
the search of one's home for evidence of a heinous crime may
greatly exceed the injury caused by an ill-grounded prosecution for
a minor offense."

															Comment, Search and Seizure in the Supreme Court: Shadows on the
Fourth Amendment, 28 U.Chi.L.Rev. 664, 701 (1961) (footnotes
omitted).

															[ Footnote 4/9 ]

															Only with great reluctance has this Court approved the seizure
even of refrigerators or washing machines without notice and a
prior adversary hearing; in doing so, the Court has relied on the
distinction between loss of property, which can often be easily
compensated, and loss of less tangible but more precious rights:
" [w]here only property rights are involved, mere postponement
of the judicial enquiry is not a denial of due process.'" Mitchell v. W. T. Grant Co., 416 U.
S. 600 , 416 U. S. 611 ,
quoting from Phillips v. Commissioner, 283 U.
S. 589 , 283 U. S.
596 -597. See also Michigan v. Tyler, ante at 436 U. S. 514 (opinion of STEVENS, J.). [ Footnote 4/10 ]

															Even before Hayden had repudiated the mere evidence
rule, scholars had recognized that such a change in the scope of
the prosecutor's search authority would require a fresh examination
of the probable cause requirement. It was noted that the personal
character of some evidentiary documents would "justify stringent
limitation, if not total prohibition, of their seizure by exercise
of official authority." Taylor, supra, 436
U.S. 547 fn4/4|>n. 4, at 66.

															It is ironic that the Court today should adopt a rigid
interpretation of the Warrant Clause to uphold this search when the
Court was prepared only a few years ago to rely on the flexibility
of the Clause to create an entirely new warrant in order to
preserve the government's power to conduct unannounced inspections
of citizens' homes and businesses. See Camara v. Municipal
Court, 387 U. S. 523 , 387 U. S.
534 -535, and 387 U. S.
538 .

															[ Footnote 4/11 ]

															"There must, of course, be a nexus -- automatically provided in
the case of fruits, instrumentalities or contraband -- between the
item to be seized and criminal behavior. Thus, in the case of '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."

															387 U.S. at 387 U. S.
307 .

															[ Footnote 4/12 ]

															"The danger is all too obvious that a criminal will destroy or
hide evidence or fruits of his crime if given any prior notice." Fuentes v. Shevin, 407 U. S. 67 , 407 U. S. 93 -94,
n. 30.

															[ Footnote 4/13 ] Cf. Marshall v. Barlow's, Inc., ante at 436 U. S.
336 -339, and nn. 9-11 (STEVENS, J., dissenting).

Summary: In Zurcher v. Stanford Daily, the Supreme Court held that the Fourth Amendment does not prevent a state from issuing a search warrant for evidence simply because the owner of the property is not suspected of criminal involvement. The Court also ruled that a subpoena is not necessary when seeking a search warrant from a third party, as it could delay the investigation and lead to the disappearance of evidence. The Court recognized the importance of privacy but noted that search warrants are more challenging to obtain than subpoenas, ensuring a careful consideration of the circumstances.