U.S. Supreme Court Warden v. Hayden, 387
U.S. 294 (1967) Warden v. Hayden No. 480 Argued April 12, 1967 Decided May 29, 1967 387
U.S. 294 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH
CIRCUIT Syllabus The police were informed that an armed robbery had occurred and
that the suspect, respondent, had thereafter entered a certain
house. Minutes later, they arrived there and were told by
respondent's wife that she had no objection to their searching the
house. Certain officers arrested respondent in an upstairs bedroom
when it became clear he was the only man in the house. Others
simultaneously searched the first floor and cellar. One found
weapons in a flush tank; another, looking "for a man or the money,"
found in a washing machine clothing of the type the suspect was
said to have worn. Ammunition was also found. These items were
admitted into evidence without objection at respondent's trial,
which resulted in his conviction. After unsuccessful state court
proceedings, respondent sought and was denied habeas corpus relief
in the District Court. The Court of Appeals found the search
lawful, but reversed on the ground that the clothing seized during
the search was immune from seizure, being of "evidential value
only." Held: 1. "The exigencies of the situation," in which the officers were
in pursuit of a suspected armed felon in the house which he had
entered only minutes before they arrived, permitted their
warrantless entry and search. McDonald v. United States, 335 U. S. 451 , 335 U. S. 456 .
Pp. 387 U. S.
298 -300.

															2. The distinction prohibiting seizure of items of only
evidential value and allowing seizure of instrumentalities, fruits,
or contraband is no longer accepted as being required by the Fourth
Amendment. Pp. 387 U. S.
300 -310.

															(a) There is no rational distinction between a search for "mere
evidence" and one for an "instrumentality" in terms of the privacy
which is safeguarded by the Fourth Amendment; nor does the language
of the Amendment itself make such a distinction. Pp. 387 U. S.
301 -302.

															(b) The clothing items involved here are not "testimonial" or
"communicative," and their introduction did not compel respondent
to become a witness against himself in violation of the Fifth
Amendment. Schmerber v. California, 384 U.
S. 757 . Pp. 387 U. S.
302 -303. Page 387 U. S. 295 (c) The premise that property interests control government's
search and seizure rights, on which Gouled v. United
States, 255 U. S. 298 ,
partly rested, is no longer controlling as the Fourth Amendment's
principal object is the protection of privacy, not property. Pp. 387 U. S.
303 -306.

															(d) The related premise of Gouled that government may
not seize evidence for the purpose of proving crime has also been
discredited. The Fourth Amendment does not bar a search for that
purpose provided that there is probable cause, as there was here,
for the belief that the evidence sought will aid in a particular
apprehension or conviction. Pp. 387 U. S.
306 -307.

															(e) The remedy of suppression, with its limited functional
consequence, has made possible the rejection of both the related
Gouled premises. P. 387 U. S.
307 .

															(f) Just as the suppression of evidence does not require the
return of such items as contraband, the introduction of "mere
evidence" does not entitle the State to its retention if it is
being wrongfully withheld. Pp. 387 U. S.
307 -308.

															(g) The numerous and confusing exceptions to the "mere evidence"
limitation make it questionable whether it affords any meaningful
protection. P. 387 U. S.
309 .

															363 F.2d 647, reversed.

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															We review in this case the validity of the proposition that
there is under the Fourth Amendment a "distinction Page 387 U. S. 296 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." [ Footnote
1 ]

															A Maryland court sitting without a jury convicted respondent of
armed robbery. Items of his clothing, a cap, jacket, and trousers,
among other things, were seized during a search of his home, and
were admitted in evidence without objection. After unsuccessful
state court proceedings, he sought and was denied federal habeas
corpus relief in the District Court for Maryland. [ Footnote 2 ] A divided panel of the Court of
Appeals for the Fourth Circuit reversed. 363 F.2d 647. The Court of
Appeals believed that Harris v. United States, 331 U. S. 145 , 331 U. S. 154 ,
sustained the validity of the search, but held that respondent was
correct in his contention that the clothing seized was improperly
admitted in evidence because the items had "evidential value only"
and therefore were not Page 387 U. S. 297 lawfully subject to seizure. We granted certiorari. 385 U.S.
926. We reverse. [ Footnote
3 ] I About 8 a.m. on March 17, 1962, an armed robber entered the
business premises of the Diamond Cab Company in Baltimore,
Maryland. He took some $363 and ran. Two cab drivers in the
vicinity, attracted by shouts of "Holdup," followed the man to 2111
Cocoa Lane. One driver notified the company dispatcher by radio
that the man was a Negro about 5'8" tall, wearing a light cap and
dark jacket, and that he had entered the house on Cocoa Lane. The
dispatcher relayed the information to police who were proceeding to
the scene of the robbery. Within minutes, police arrived at the
house in a number of patrol cars. An officer knocked and announced
their presence. Mrs. Hayden answered, and the officers told her
they believed that a robber had entered the house, and asked to
search the house. She offered no objection. [ Footnote 4 ] Page 387 U. S. 298 The officers spread out through the first and second floors and
the cellar in search of the robber. Hayden was found in an upstairs
bedroom feigning sleep. He was arrested when the officers on the
first floor and in the cellar reported that no other man was in the
house. Meanwhile, an officer was attracted to an adjoining bathroom
by the noise of running water, and discovered a shotgun and a
pistol in a flush tank; another officer who, according to the
District Court, "was searching the cellar for a man or the money"
found in a washing machine a jacket and trousers of the type the
fleeing man was said to have worn. A clip of ammunition for the
pistol and a cap were found under the mattress of Hayden's bed, and
ammunition for the shotgun was found in a bureau drawer in Hayden's
room. All these items of evidence were introduced against
respondent at his trial. II We agree with the Court of Appeals that neither the entry
without warrant to search for the robber, nor the search for him
without warrant was invalid. Under the circumstances of this case,
"the exigencies of the situation made that course imperative." McDonald v. United States, 335 U.
S. 451 , 335 U. S. 456 .
The police were informed that an armed robbery had taken place, and
that the suspect had entered 2111 Cocoa Lane less than five minutes
before they reached it. They acted reasonably when they entered the
house and began to search for a man of the description they had
been given and for weapons which he had used in the robbery or
might use against them. The Fourth Amendment does not require
police officers to delay in the course of an investigation Page 387 U. S. 299 if to do so would gravely endanger their lives or the lives of
others. Speed here was essential, and only a thorough search of the
house for persons and weapons could have insured that Hayden was
the only man present and that the police had control of all weapons
which could be used against them or to effect an escape.

															We do not rely upon Harris v. United States, supra, in
sustaining the validity of the search. The principal issue in Harris was whether the search there could properly be
regarded as incident to the lawful arrest, since Harris was in
custody before the search was made and the evidence seized. Here,
the seizures occurred prior to or immediately contemporaneous with
Hayden's arrest, as part of an effort to find a suspected felon,
armed, within the house into which he had run only minutes before
the police arrived. The permissible scope of search must,
therefore, at the least, be as broad as may reasonably be necessary
to prevent the dangers that the suspect at large in the house may
resist or escape.

															It is argued that, while the weapons, ammunition, and cap may
have been seized in the course of a search for weapons, the officer
who seized the clothing was searching neither for the suspect nor
for weapons when he looked into the washing machine in which he
found the clothing. But even if we assume, although we do not
decide, that the exigent circumstances in this case made lawful a
search without warrant only for the suspect or his weapons, it
cannot be said on this record that the officer who found the
clothes in the washing machine was not searching for weapons. He
testified that he was searching for the man or the money, but his
failure to state explicitly that he was searching for weapons, in
the absence of a specific question to that effect, can hardly be
accorded controlling weight. He knew that the robber was armed and
he did not know that some Page 387 U. S. 300 weapons had been found at the time he opened the machine.
[ Footnote 5 ] In these
circumstances, the inference that he was, in fact, also looking for
weapons is fully justified. III We come, then, to the question whether, even though the search
was lawful, the Court of Appeals was correct in holding that the
seizure and introduction of the items of clothing violated the
Fourth Amendment because they are "mere evidence." The distinction
made by some of our cases between seizure of items of evidential
value only and seizure of instrumentalities, fruits, or contraband
has been criticized by courts [ Footnote 6 ] and commentators. [ Footnote 7 ] The Court of Appeals, however, felt "obligated
to adhere to it." 363 F.2d at 655. We today reject the distinction
as based on premises no longer Page 387 U. S. 301 accepted as rules governing the application of the Fourth
Amendment. [ Footnote 8 ]

															We have examined on many occasions the history and purposes of
the Amendment. [ Footnote 9 ] It
was a reaction to the evils of the use of the general warrant in
England and the writs of assistance in the Colonies, and was
intended to protect against invasions of "the sanctity of a man's
home and the privacies of life," Boyd v. United States, 116 U. S. 616 , 116 U. S. 630 ,
from searches under indiscriminate, general authority. Protection
of these interests was assured by prohibiting all "unreasonable"
searches and seizures, and by requiring the use of warrants, which
particularly describe "the place to be searched, and the persons or
things to be seized," thereby interposing "a magistrate between the
citizen and the police," McDonald v. United States, supra, 335 U.S. at 335 U. S.
455 .

															Nothing in the language of the Fourth Amendment supports the
distinction between "mere evidence" and instrumentalities, fruits
of crime, or contraband. On its face, the provision assures the
"right of the people to be secure in their persons, houses, papers,
and effects . . . ," without regard to the use to which any of
these things are applied. This "right of the people" is certainly
unrelated to the "mere evidence" limitation. Privacy is disturbed
no more by a search directed to a purely evidentiary object than it
is by a search directed to an instrumentality, Page 387 U. S. 302 fruit, or contraband. A magistrate can intervene in both
situations, and the requirements of probable cause and specificity
can be preserved intact. Moreover, nothing in the nature of
property seized as evidence renders it more private than property
seized, for example, as an instrumentality; quite the opposite may
be true. Indeed, the distinction is wholly irrational, since,
depending on the circumstances, the same "papers and effects" may
be "mere evidence" in one case and "instrumentality" in another. See Comment, 20 U.Chi.L.Rev. 319, 320-322 (1953).

															In Gouled v. United States, 255 U.
S. 298 , 255 U. S. 309 ,
the Court said that search warrants

															"may not be used as a means of gaining access to a man's house
or office and papers solely for the purpose of making search to
secure evidence to be used against him in a criminal or penal
proceeding. . . ."

															The Court derived from Boyd v. United States, supra, the proposition that warrants

															"may be resorted to only when a primary right to such search and
seizure may be found in the interest which the public or the
complainant may have in the property to be seized, or in the right
to the possession of it, or when a valid exercise of the police
power renders possession of the property by the accused unlawful
and provides that it may be taken,"

															255 U.S. at 255 U. S. 309 ;
that is, when the property is an instrumentality or fruit of crime,
or contraband. Since it was "impossible to say, on the record . . .
that the Government had any interest" in the papers involved "other
than as evidence against the accused . . . ," "to permit them to be
used in evidence would be, in effect, as ruled in the Boyd Case, to compel the defendant to become a witness against himself." Id. at 255 U. S.
311 .

															The items of clothing involved in this case are not
"testimonial" or "communicative" in nature, and their introduction
therefore did not compel respondent to become Page 387 U. S. 303 a witness against himself in violation of the Fifth Amendment. Schmerber v. California, 384 U. S. 757 .
This case thus does not require that we consider whether there are
items of evidential value whose very nature precludes them from
being the object of a reasonable search and seizure.

															The Fourth Amendment ruling in Gouled was based upon
the dual, related premises that historically the right to search
for and seize property depended upon the assertion by the
Government of a valid claim of superior interest, and that it was
not enough that the purpose of the search and seizure was to obtain
evidence to use in apprehending and convicting criminals. The
common law of search and seizure after Entick v.
Carrington, 19 How.St.Tr. 1029, reflected Lord Camden's view,
derived no doubt from the political thought of his time, that the
"great end, for which men entered into society, was to secure their
property." Id. at 1066. Warrants were

															"allowed only where the primary right to such a search and
seizure is in the interest which the public or complainant may have
in the property seized."

															Lasson, The History and Development of the Fourth Amendment to
the United States Constitution 133-134. Thus, stolen property --
the fruits of crime -- was always subject to seizure. And the power
to search for stolen property was gradually extended to cover "any
property which the private citizen was not permitted to possess,"
which included instrumentalities of crime (because of the early
notion that items used in crime were forfeited to the State) and
contraband. Kaplan, Search and Seizure: A No-Man's Land in the
Criminal Law, 49 Calif.L.Rev. 474, 475. No separate governmental
interest in seizing evidence to apprehend and convict criminals was
recognized; it was required that some property interest be
asserted. The remedial structure also reflected these dual
premises. Trespass, replevin, and the other means of Page 387 U. S. 304 redress for persons aggrieved by searches and seizures, depended
upon proof of a superior property interest. And since a lawful
seizure presupposed a superior claim, it was inconceivable that a
person could recover property lawfully seized. As Lord Camden
pointed out in Entick v. Carrington, supra, at 1066, a
general warrant enabled

															"the party's own property [to be] seized before and without
conviction, and he has no power to reclaim his goods, even after
his innocence is cleared by acquittal."

															The premise that property interests control the right of the
Government to search and seize has been discredited. Searches and
seizures may be "unreasonable" within the Fourth Amendment even
though the Government asserts a superior property interest at
common law. We have recognized that the principal object of the
Fourth Amendment is the protection of privacy, rather than
property, and have increasingly discarded fictional and procedural
barriers rested on property concepts. See Jones v. United
States, 362 U. S. 257 , 362 U. S. 266 ; Silverman v. United States, 365 U.
S. 505 , 365 U. S. 511 .
This shift in emphasis from property to privacy has come about
through a subtle interplay of substantive and procedural reform.
The remedial structure at the time even of Weeks v. United
States, 232 U. S. 383 , was
arguably explainable in property terms. The Court held in Weeks that a defendant could petition before trial for the
return of his illegally seized property, a proposition not
necessarily inconsistent with Adams v. New York, 192 U. S. 585 ,
which held in effect that the property issues involved in search
and seizure are collateral to a criminal proceeding. [ Footnote 10 ] The remedial structure
finally escaped the bounds of common law property limitations in Silverthorne Page 387 U. S. 305 Lumber Co. v. United States, 251 U.
S. 385 , and Gouled v. United States, supra, when it became established that suppression might be sought during
a criminal trial, and under circumstances which would not sustain
an action in trespass or replevin. Recognition that the role of the
Fourth Amendment was to protect against invasions of privacy
demanded a remedy to condemn the seizure in Silverthorne, although no possible common law claim existed for the return of the
copies made by the Government of the papers it had seized. The
remedy of suppression, necessarily involving only the limited,
functional consequence of excluding the evidence from trial,
satisfied that demand.

															The development of search and seizure law since Silverthorne and Gouled is replete with examples
of the transformation in substantive law brought about through the
interaction of the felt need to protect privacy from unreasonable
invasions and the flexibility in rulemaking made possible by the
remedy of exclusion. We have held, for example, that intangible as
well as tangible evidence may be suppressed, Wong Sun v. United
States, 371 U. S. 471 , 371 U. S.
485 -486, and that an actual trespass under local
property law is unnecessary to support a remediable violation of
the Fourth Amendment, Silverman v. United States, supra. In determining whether someone is a "person aggrieved by an
unlawful search and seizure," we have refused

															"to import into the law . . . subtle distinctions, developed and
refined by the common law in evolving the body of private property
law which, more than almost any other branch of law, has been
shaped by distinctions whose validity is largely historical." Jones v. United States, supra, 362 U.S. at 362 U. S. 266 .
And, with particular relevance here, we have given recognition to
the interest in privacy despite the complete absence of a property
claim by suppressing the very items which, at Page 387 U. S. 306 common law, could be seized with impunity: stolen goods, Henry v. United States, 361 U. S. 98 ;
instrumentalities, Beck v. Ohio, 379 U. S.
89 ; McDonald v.United States, supra, and
contraband, Trupiano v. United States, 334 U.
S. 699 ; Aguilar v. Texas, 378 U.
S. 108 .

															The premise in Gouled that government may not seize
evidence simply for the purpose of proving crime has likewise been
discredited. The requirement that the Government assert in addition
some property interest in material it seizes has long been a
fiction, [ Footnote 11 ]
obscuring the reality that government has an interest in solving
crime. Schmerber settled the proposition that it is
reasonable, within the terms of the Fourth Amendment, to conduct
otherwise permissible searches for the purpose of obtaining
evidence which would aid in apprehending and convicting criminals.
The requirements of the Fourth Amendment can secure the same
protection of privacy Page 387 U. S. 307 whether the search is for "mere evidence" or for fruits,
instrumentalities or contraband. 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. Cf. Kremen
v. United States, 353 U. S. 346 . But
no such problem is presented in this case. The clothes found in the
washing machine matched the description of those worn by the robber
and the police therefore could reasonably believe that the items
would aid in the identification of the culprit.

															The remedy of suppression, moreover, which made possible
protection of privacy from unreasonable searches without regard to
proof of a superior property interest, likewise provides the
procedural device necessary for allowing otherwise permissible
searches and seizures conducted solely to obtain evidence of crime.
For just as the suppression of evidence does not entail a
declaration of superior property interest in the person aggrieved,
thereby enabling him to suppress evidence unlawfully seized despite
his inability to demonstrate such an interest (as with fruits,
instrumentalities, contraband), the refusal to suppress evidence
carries no declaration of superior property interest in the State,
and should thereby enable the State to introduce evidence lawfully
seized despite its inability to demonstrate such an interest. And,
unlike the situation at common law, the owner of property would not
be rendered remediless if "mere evidence" could lawfully be seized
to prove crime. For just as the suppression of evidence does not,
in itself, necessarily entitle the aggrieved person to its return
(as, for example, contraband), the introduction of "mere evidence"
does not, in Page 387 U. S. 308 itself, entitle the State to its retention. Where public
officials "unlawfully seize or hold a citizen's realty or
chattels, recoverable by appropriate action at law or in equity . .
. ," the true owner may "bring his possessory action to reclaim
that which is wrongfully withheld." Land v. Dollar, 330 U. S. 731 , 330 U. S. 738 .
(Emphasis added.) See Burdeau v. McDowell, 256 U.
S. 465 , 256 U. S.
474 .

															The survival of the Gouled distinction is attributable
more to chance than considered judgment. Legislation has helped
perpetuate it. Thus, Congress has never authorized the issuance of
search warrants for the seizure of mere evidence of crime. See
Davis v. United States, 328 U. S. 582 , 328 U. S. 606 (dissenting opinion of Mr. Justice Frankfurter). Even in the
Espionage Act of 1917, where Congress for the first time granted
general authority for the issuance of search warrants, the
authority was limited to fruits of crime, instrumentalities, and
certain contraband. 40 Stat. 228. Gouled concluded,
needlessly, it appears, that the Constitution virtually limited
searches and seizures to these categories. [ Footnote 12 ] After Gouled, pressure Page 387 U. S. 309 to test this conclusion was slow to mount. Rule 41(b) of the
Federal Rules of Criminal Procedure incorporated the Gouled categories as limitations on federal authorities to
issue warrants, and Mapp v. Ohio, 367 U.
S. 643 , only recently made the "mere evidence" rule a
problem in the state courts. Pressure against the rule in the
federal courts has taken the form, rather, of broadening the
categories of evidence subject to seizure, thereby creating
considerable confusion in the law. See, e.g., Note, 54
Geo.L.J. 593, 607-621 (1966).

															The rationale most frequently suggested for the rule preventing
the seizure of evidence is that "limitations upon the fruit to be
gathered tend to limit the quest itself." United States v.
Poller, 43 F.2d 911, 914 (C.A.2d Cir.1930). But privacy

															"would be just as well served by a restriction on search to the
even-numbered days of the month. . . . And it would have the extra
advantage of avoiding hair-splitting questions. . . ."

															Kaplan, op. cit. at 479. The "mere evidence" limitation
has spawned exceptions so numerous and confusion so great, in fact,
that it is questionable whether it affords meaningful protection.
But if its rejection does enlarge the area of permissible searches,
the intrusions are nevertheless made after fulfilling the probable
cause and particularity requirements of the Fourth Amendment and
after the intervention of "a neutral and detached magistrate. . .
." Page 387 U. S. 310 Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 .
The Fourth Amendment allows intrusions upon privacy under these
circumstances, and there is no viable reason to distinguish
intrusions to secure "mere evidence" from intrusions to secure
fruits, instrumentalities, or contraband.

															The judgment of the Court of Appeals is Reversed. MR. JUSTICE BLACK concurs in the result.

															[ Footnote 1 ] Harris v. United States, 331 U.
S. 145 , 331 U. S. 154 ; see also Gouled v. United States, 255 U.
S. 298 ; United States v. Lefkowitz, 285 U. S. 452 , 285 U. S.
465 -466; United States v. Rabinowitz, 339 U. S. 56 , 339 U. S. 64 , n.
6; Abel v. United States, 362 U.
S. 217 , 362 U. S.
234 -235.

															[ Footnote 2 ]

															Hayden did not appeal from his conviction. He first sought
relief by an application under the Maryland Post Conviction
Procedure Act which was denied without hearing. The Maryland Court
of Appeals reversed and remanded for a hearing. 233 Md. 613, 195
A.2d 692. The trial court denied relief after hearing, concluding
"that the search of his home and the seizure of the articles in
question were proper." His application for federal habeas corpus
relief resulted, after hearing in the District Court, in the same
conclusion.

															[ Footnote 3 ]

															The State claims that, since Hayden failed to raise the search
and seizure question at trial, he deliberately bypassed state
remedies and should be denied an opportunity to assert his claim in
federal court. See Henry v. Mississippi, 379 U.
S. 443 ; Fay v. Noia, 372 U.
S. 391 . Whether or not the Maryland Court of Appeals
actually intended, when it reversed the state trial court's denial
of post-conviction relief, that Hayden be afforded a hearing on the
merits of his claim, it is clear that the trial court so understood
the order of the Court of Appeals. A hearing was held in the state
courts, and the claim denied on the merits. In this circumstance,
the Fourth Circuit was correct in rejecting the State's deliberate
bypassing claim. The deliberate bypass rule is applicable only "to
an applicant who has deliberately bypassed the orderly procedure of
the state courts and in so doing, has forfeited his state court
remedies. " Fay v. Noia, supra, 372 U.S. at 372 U. S. 438 .
(Emphasis added.) But see Nelson v. California, 346 F.2d
73, 82 (C.A. 9th Cir.1965).

															[ Footnote 4 ]

															The state post-conviction court found that Mrs. Hayden "gave the
policeman permission to enter the home." The federal habeas corpus
court stated it "would be justified in accepting the findings of
historical fact made by Judge Sodaro on that issue . . . ," but
concluded that resolution of the issue would be unnecessary,
because the officers were "justified in entering and searching the
house for the felon, for his weapons and for the fruits of the
robbery."

															[ Footnote 5 ]

															The officer was asked in the District Court whether he found the
money. He answered that he did not, and stated: "By the time I had
gotten down into the basement, I heard someone say upstairs, There's a man up here.'" He was asked: "What did you do then?"
and answered: "By this time I had already discovered some clothing
which fit the description of the clothing worn by the subject that
we were looking for. . . ." It is clear from the record and from
the findings that the weapons were found after or at the same time
the police found Hayden. [ Footnote 6 ] People v. Thaver, 63 Cal. 2d
635 , 408 P.2d 108, cert. denied, 384 U.S. 908; State v. Bisaccia, 45 N.J. 504, 213
A.2d 185 . Compare United States v. Poller, 43 F.2d
911, 914 (C.A.2d Cir.1930).

															[ Footnote 7 ] E.g., Chafee, The Progress of the Law, 1919-1922, 35
Harv.L.Rev. 673 (1922); Kamisar, The Wiretapping-Eavesdropping
Problem: A Professor's View, 44 Minn.L.Rev. 891, 914-918 (1960);
Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49
Calif.L.Rev. 474, 478 (1961); Comment, 45 N.C.L.Rev. 512 (1967);
Comment, 66 Col.L.Rev. 355 (1966); Comment, 20 U.Chi.L.Rev. 319
(1953); Comment, 31 Yale L.J. 518 (1922). Compare, e.g., Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361
(1921); Note, 54 Geo.L.J. 593 (1966).

															[ Footnote 8 ]

															This Court has approved the seizure and introduction of items
having only evidential value without, however, considering the
validity of the distinction rejected today. See Schmerber v.
California, 384 U. S. 757 ; Cooper v. California, 386 U. S. 58 .

															[ Footnote 9 ] E.g., Stanford v. Texas, 379 U.
S. 476 , 379 U. S.
481 -485; Marcus v. Search Warrant, 367 U.
S. 717 , 367 U. S.
724 -729; Frank v. Maryland, 359 U.
S. 360 , 359 U. S.
363 -365. See generally Lasson, The History and
Development of the Fourth Amendment to the United States
Constitution (1937); Landynski, Search and Seizure and the Supreme
Court (1966).

															[ Footnote 10 ]

															Both Weeks and Adams were written by Justice
Day, and joined by several of the same Justices, including Justice
Holmes.

															[ Footnote 11 ]

															At common law, the Government did assert a superior property
interest when it searched lawfully for stolen property, since the
procedure then followed made it necessary that the true owner swear
that his goods had been taken. But no such procedure need be
followed today; the Government may demonstrate probable cause and
lawfully search for stolen property even though the true owner is
unknown or unavailable to request and authorize the Government to
assert his interest. As to instrumentalities, the Court in Gouled allowed their seizure not because the Government
had some property interest in them (under the ancient, fictitious
forfeiture theory), but because they could be used to perpetrate
further crime. 255 U.S. at 255 U. S. 309 . The same holds true, of course, for "mere
evidence"; the prevention of crime is served at least as much by
allowing the Government to identify and capture the criminal as it
is by allowing the seizure of his instrumentalities. Finally,
contraband is indeed property in which the Government holds a
superior interest, but only because the Government decides to vest
such an interest in itself. And while there may be limits to what
may be declared contraband, the concept is hardly more than a form
through which the Government seeks to prevent and deter crime.

															[ Footnote 12 ] Gouled was decided on certified questions. The only
question which referred to the Espionage Act of 1917 stated:

															"Are papers of . . . evidential value . . when taken under
search warrants issued pursuant to Act of June 15, 1917, from the
house or office of the person so suspected -- seized and taken in
violation of the 4th amendment?" Gouled v. United States, No. 250, Oct. Term, 1920,
Certificate, p. 4. Thus, the form in which the case was certified
made it difficult if not impossible,

															"to limit the decision to the sensible proposition of statutory
construction, that Congress had not as yet authorized the seizure
of purely evidentiary material."

															Chafee, op. cit. supra at 699. The Government assumed
the validity of petitioner's argument that Entick v.
Carrington, Boyd v. United States, and other authorities
established the constitutional illegality of seizures of private
papers for use as evidence. Gouled v. United States,
supra, Brief for the United States, p. 50. It argued,
complaining of the absence of a record, that the papers introduced
in evidence were instrumentalities of crime. The Court ruled that
the record before it revealed no government interest in the papers
other than as evidence against the accused. 255 U.S. at 255 U. S.
311 .

															Significantly, Entick v. Carrington itself has not been
read by the English courts as making unlawful the seizure of all
papers for use as evidence. See Dillon v. O'Brien, 20
L.R.Ir. 300; Elias v. Pasmore, [1934] 2 K.B. 164. Although Dillon, decided in 1887, involved instrumentalities, the
court did not rely on this fact, but rather on "the interest which
the State has in a person guilty (or reasonably believed to be
guilty) of a crime being brought to justice. . . ." 20 L.R.Ir. at
317.

															MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE joins,
concurring.

															While I agree that the Fourth Amendment should not be held to
require exclusion from evidence of the clothing as well as the
weapons and ammunition found by the officers during the search, I
cannot join in the majority's broad -- and, in my judgment, totally
unnecessary -- repudiation of the so-called "mere evidence"
rule.

															Our Constitution envisions that searches will ordinarily follow
procurement by police of a valid search warrant. Such warrants are
to issue only on probable cause, and must describe with
particularity the persons or things to be seized. There are
exceptions to this rule. Searches may be made incident to a lawful
arrest, and -- as today's decision indicates -- in the course of
"hot pursuit." But searches under each of these exceptions have,
until today, been confined to those essential to fulfill the
purpose of the exception: that is, we have refused to permit use of
articles the seizure of which could not be strictly tied to and
justified by the exigencies which excused the warrantless search.
The use in evidence of weapons seized in a "hot pursuit" search or
search incident to arrest satisfies this criterion because of the
need to protect the arresting officers from weapons to which the
suspect might resort. The search for and seizure of fruits are, of
course, justifiable on independent grounds: the fruits Page 387 U. S. 311 are an object of the pursuit or arrest of the suspect, and
should be restored to their true owner. The seizure of contraband
has been justified on the ground that the suspect has not even a
bare possessory right to contraband. See, e.g., Boyd v. United
States, 116 U. S. 616 , 116 U. S.
623 -624 (1886); United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2d Cir.1926) (L. Hand, J.).

															Similarly, we have forbidden the use of articles seized in such
a search unless obtained from the person of the suspect or from the
immediate vicinity. Since a warrantless search is justified only as
incident to an arrest or "hot pursuit," this Court and others have
held that its scope does not include permission to search the
entire building in which the arrest occurs, or to rummage through
locked drawers and closets, or to search at another time or place. James v. Louisiana, 382 U. S. 36 (1965); Stoner v. California, 376 U.
S. 483 , 376 U. S.
486 -487 (1964); Preston v. United States, 376 U. S. 364 , 376 U. S. 367 (1964); United States v. Lefkowitz, 285 U.
S. 452 (1932); Go-Bart Co. v. United States, 282 U. S. 344 , 282 U. S. 358 (1931); Agnello v. United States, 269 U. S.
20 , 269 U. S. 331 (1925); United States v. Kirschenblatt, supra. [ Footnote 2/1 ]

															In the present case, the articles of clothing admitted into
evidence are not within any of the traditional categories which
describe what materials may be seized, either with or without a
warrant. The restrictiveness of these categories has been subjected
to telling criticism, [ Footnote
2/2 ] and Page 387 U. S. 312 although I believe that we should approach expansion of these
categories with the diffidence which their imposing provenance
commands, I agree that the use of identifying clothing worn in the
commission of a crime and seized during "hot pursuit" is within the
spirit and intendment of the "hot pursuit" exception to the search
warrant requirement. That is because the clothing is pertinent to
identification of the person hotly pursued as being, in fact, the
person whose pursuit was justified by connection with the crime. I
would frankly place the ruling on that basis. I would not drive an
enormous and dangerous hole in the Fourth Amendment to accommodate
a specific and, I think, reasonable exception.

															As my Brother DOUGLAS notes, post, opposition to
general searches is a fundamental of our heritage and of the
history of Anglo-Saxon legal principles. Such searches, pursuant to
"writs of assistance," were one of the matters over which the
American Revolution was fought. The very purpose of the Fourth
Amendment was to outlaw such searches, which the Court today
sanctions. I fear that, in gratuitously striking down the "mere
evidence" rule, which distinguished members of this Court have
acknowledged as essential to enforce the Fourth Amendment's
prohibition against general searches, the Court today needlessly
destroys, root and branch, a basic part of liberty's heritage.

															[ Footnote 2/1 ]

															It is true that this Court has not always been as vigilant as it
should to enforce these traditional and extremely important
restrictions upon the scope of such searches. See United States
v. Rabinowitz, 339 U. S. 56 , 339 U. S. 68 -86
(1950) (Frankfurter, J., dissenting); Harris v. United
States, 331 U. S. 145 , 331 U. S.
155 -198 (1947) (dissenting opinions).

															[ Footnote 2/2 ] See, e.g., People v. Thayer, 63 Cal. 2d
635 , 408 P.2d 108 (1965) (Traynor, C.J.), cert.
denied, 384 U.S. 908 (1966); Kaplan, Search and Seizure: A
No-Man's Land in the Criminal Law, 49 Calif.L.Rev. 474, 478
(1961).

															MR. JUSTICE DOUGLAS, dissenting.

															We start with the Fourth Amendment, which 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. " Page 387 U. S. 313 This constitutional guarantee, now as applicable to the States
( Mapp v. Ohio, 367 U. S. 643 ) as
to the Federal Government, has been thought, until today, to have
two faces of privacy:

															(1) One creates a zone of privacy that may not be invaded by the
police through raids, by the legislators through laws, or by
magistrates through the issuance of warrants.

															(2) A second creates a zone of privacy that may be invaded
either by the police in hot pursuit or by a search incident to
arrest or by a warrant issued by a magistrate on a showing of
probable cause.

															The first has been recognized from early days in
Anglo-American law. Search warrants, for seizure of stolen
property, though having an ancient lineage, were criticized even by
Coke. Institutes Bk. 4, pp. 176-177.

															As stated by Lord Camden in Entick v. Carrington, 19
How.St.Tr. 1029, 1067, even warrants authorizing seizure of stolen
goods were looked upon with disfavor but "crept into the law by
imperceptible practice." By the time of Charles II, they had burst
their original bounds and were used by the Star Chamber to find
evidence among the files and papers of political suspects. Thus, in
the trial of Algernon Sidney in 1683 for treason, "papers, which
were said to be found in my [Sidney's] house, were produced as
another witness" (9 How.St.Tr. 818, 901) and the defendant was
executed. Id. at 906-907. From this use of papers as
evidence, there grew up the practice of the Star Chamber empowering
a person

															"to search in all places, where books were printing, in order to
see if the printer had a licence, and if upon such search he found
any books which he suspected to be libelous against the church or
state, he was to seize them, and carry them before the proper
magistrate." Entick v. Carrington, supra, at 1069. Thus, the general
warrant became a powerful instrument Page 387 U. S. 314 in proceedings for seditious libel against printers and authors. Ibid. John Wilkes led the campaign against the general
warrant. Boyd v. United States, 116 U.
S. 616 , 116 U. S. 625 .
Wilkes won ( Entick v. Carrington, supra, decided in 1765),
and Lord Camden's opinion not only outlawed the general warrant
( id. at 1072), but went on to condemn searches "for
evidence" with or without a general warrant:

															"There is no process against papers in civil causes. It has been
often tried, but never prevailed. Nay, where the adversary has, by
force or fraud, got possession of your own proper evidence, there
is no way to get it back but by action."

															"In the criminal law, such a proceeding was never heard of, and
yet there are some crimes, such for instance, as murder, rape,
robbery, and housebreaking, to say nothing of forgery and perjury,
that are more atrocious than libelling. But our law has provided no
paper search in these cases to help forward the conviction."

															"Whether this procedeth from the gentleness of the law towards
criminals, or from a consideration that such a power would be more
pernicious to the innocent than useful to the public, I will not
say."

															"It is very certain that the law obligeth no man to accuse
himself; because the necessary means of compelling self-accusation,
falling upon the innocent as well as the guilty, would be both
cruel and unjust, and it should seem, that search for evidence is
disallowed upon the same principle. There too the innocent would be
confounded with the guilty." Id. at 1073.

															Thus, Lord Camden decided two things: (1) that searches for
evidence violated the principle against self-incrimination; (2)
that general warrants were void. Page 387 U. S. 315 This decision, in the very forefront when the Fourth Amendment
was adopted, underlines the construction that it covers something
other than the form of the warrant [ Footnote 3/1 ] and creates a zone of privacy which no
government official may enter.

															The complaint of Bostonians, while including the general
warrants, went to the point of police invasions of personal
sanctuaries:

															"'A List of Infringements and Violations of Rights' drawn up by
the Boston town meeting late in 1772 alluded to a number of
personal rights which had allegedly been violated by agents of the
crown. The list included complaints against the writs of assistance
which had been employed by royal officers in their searches for
contraband. The Bostonians complained that"

															"our houses and even our bed chambers are exposed to be
ransacked, our boxes, chests, and trunks broke open, ravaged and
plundered by wretches, whom no prudent man would venture to employ
even as menial servants."

															Rutland, The Birth of the Bill of Rights 25 (1955).

															The debates concerning the Bill of Rights did not focus on the
precise point with which we here deal. There was much talk about
the general warrants and the fear of them. But there was also some
reference to the sanctity of one's home and his personal
belongings, even Page 387 U. S. 316 including the clothes he wore. Thus, in Virginia, Patrick Henry
said:

															"The officers of Congress may come upon you now, fortified with
all the terrors of paramount federal authority. Excisemen may come
in multitudes, for the limitation of their numbers no man knows.
They may, unless the general government be restrained by a bill of
rights or some similar restriction, go into your cellars and rooms,
and search, ransack, and measure, every thing you eat, drink, and
wear. They ought to be restrained within proper bounds."

															3 Elliot's Debates 448-449.

															This indicates that the Fourth Amendment has the dual aspect
that I have mentioned. Certainly the debates nowhere suggest that
it was concerned only with regulating the form of warrants.

															This is borne out by what happened in the Congress. In the
House, the original draft read as follows:

															"The right of the people to be secured in their persons, houses,
papers, and effects, shall not be violated by warrants issuing
without probable cause, supported by oath or affirmation, and not
particularly describing the place to be searched and the persons or
things to be seized."

															1 Annals of Cong. 754.

															That was amended to read "The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
seizures and searches," etc. Ibid. Mr. Benson, Chairman of
a Committee of Three to arrange the amendments, objected to the
words "by warrants issuing" and proposed to alter the amendment so
as to read "and no warrant shall issue." Ibid. But
Benson's amendment was defeated. Ibid. And if the Page 387 U. S. 317 story had ended there, it would be clear that the Fourth
Amendment touched only the form of the warrants and the manner of
their issuance. But when the Benson Committee later reported the
Fourth Amendment to the House, it was in the form he had earlier
proposed, and was then accepted. 1 Annals of Cong. 779. The Senate
agreed. Senate Journal August 25, 1789.

															Thus, it is clear that the Fourth Amendment has two faces of
privacy, a conclusion emphasized by Lasson, The History and
Development of the Fourth Amendment to the United States
Constitution 103 (1937):

															"As reported by the Committee of Eleven and corrected by Gerry,
the Amendment was a one-barrelled affair, directed apparently only
to the essentials of a valid warrant. The general principle of
freedom from unreasonable search and seizure seems to have been
stated only by way of premise, and the positive inhibition upon
action by the Federal Government limited consequently to the
issuance of warrants without probable cause, etc. That Benson
interpreted it in this light is shown by his argument that,
although the clause was good as far as it went, it was not
sufficient, and by the change which he advocated to obviate this
objection. The provision as he proposed it contained two clauses.
The general right of security from unreasonable search and seizure
was given a sanction of its own, and the amendment thus
intentionally given a broader scope. That the prohibition against
unreasonable searches' was intended, accordingly, to cover
something other than the form of the warrant is a question no
longer left to implication to be derived from the phraseology of
the Amendment. " Page 387 U. S. 318 Lord Camden's two-fold classification of zones of privacy was
said by Cooley to be reflected in the Fourth Amendment:

															"The warrant is not allowed for the purpose of obtaining
evidence of an intended crime, but only after lawful evidence of an
offence actually committed. Nor even then is it allowable to invade
one's privacy for the sole purpose of obtaining evidence against
him, except in a few special cases where that which is the subject
of the crime is supposed to be concealed and the public or the
complainant has an interest in it or in its destruction."

															Constitutional Limitations 431-432 (7th ed.1903). And that was
the holding of the Court in Boyd v. United States, 116 U. S. 616 ,
decided in 1886. Mr. Justice Bradley reviewed British history,
including Entick v. Carrington, supra, and American
history under the Bill of Rights, and said:

															"The search for and seizure of stolen or forfeited goods, or
goods liable to duties and concealed to avoid the payment thereof,
are totally different things from a search for and seizure of a
man's private books and papers for the purpose of obtaining
information therein contained, or of using them as evidence against
him. The two things differ toto coelo. In the one case,
the government is entitled to the possession of the property; in
the other, it is not." Id. at 116 U. S.
623 .

															What Mr. Justice Bradley said about stolen or forfeited goods or
contraband is, of course, not accurate if read to mean that they
may be seized at any time even without a warrant or not incident to
an arrest that is lawful. The right to seize contraband is not
absolute. If the search leading to discovery of an illicit article
is Page 387 U. S. 319 not incidental to a lawful arrest or not authorized by a search
warrant, the fact that contraband is discovered does not make the
seizure constitutional. Trupiano v. United States, 334 U. S. 699 , 334 U. S. 705 ; McDonald v. United States, 335 U.
S. 451 ; Henry v. United States, 361 U. S.
98 , 361 U. S. 103 ; Beck v. Ohio, 379 U. S. 89 ; Aguilar v. Texas, 378 U. S. 108 .

															That is not our question. Our question is whether the
Government, though armed with a proper search warrant or though
making a search incident to an arrest, may seize, and use at the
trial, testimonial evidence, whether it would otherwise be barred
by the Fifth Amendment or would be free from such strictures. The
teaching of Boyd is that such evidence, though seized
pursuant to a lawful search, is inadmissible.

															That doctrine had its full flowering in Gouled v. United
States, 255 U. S. 298 ,
where an opinion was written by Mr. Justice Clarke for a unanimous
Court that included both Mr. Justice Holmes and Mr. Justice
Brandeis. The prosecution was for defrauding the Government under
procurement contracts. Documents were taken from defendant's
business office under a search warrant and used at the trial as
evidence against him. Stolen or forged papers could be so seized,
the Court said; so could lottery tickets; so could contraband; so
could property in which the public had an interest, for reasons
tracing back to warrants allowing the seizure of stolen property.
But the papers or documents fell in none of those categories and
the Court therefore held that, even though they had been taken
under a warrant, they were inadmissible at the trial as not even a
warrant, though otherwise proper and regular, could be used "for
the purpose of making search to secure evidence" of a crime. Id. at 255 U. S. 309 .
The use of those documents against the accused might, of course,
violate the Fifth Amendment. Id. at 255 U. S. 311 .
But whatever may be the intrinsic nature of the evidence, Page 387 U. S. 320 the owner is then "the unwilling source of the evidence"
( id. at 255 U. S.
306 ), there being no difference so far as the Fifth
Amendment is concerned

															"whether he be obliged to supply evidence against himself or
whether such evidence be obtained by an illegal search of his
premises and seizure of his private papers." Ibid. We have, to be sure, breached that barrier, Schmerber v.
California, 384 U. S. 757 ,
being a conspicuous example. But I dissented then, and renew my
opposing view at this time. That which is taken from a person
without his consent and used as testimonial evidence violates the
Fifth Amendment.

															That was the holding in Gouled, and that was the line
of authority followed by Judge Simon Sobeloff, writing for the
Court of Appeals for reversal in this case. 363 F.2d 647. As he
said, even if we assume that the search was lawful, the articles of
clothing seized were of evidential value only and under Gouled could not be used at the trial against petitioner.
As he said, the Fourth Amendment guarantees the right of the people
to be secure "in their persons, houses, papers, and effects,
against unreasonable searches and seizures." Articles of clothing
are covered as well as papers. Articles of clothing may be of
evidential value as much as documents or papers.

															Judge Learned Hand stated a part of the philosophy of the Fourth
Amendment in United States v. Poller, 43 F.2d 911,
914:

															"[I]t is only fair to observe that the real evil aimed at by the
Fourth Amendment is the search itself, that invasion of a man's
privacy which consists in rummaging about among his effects to
secure evidence against him. If the search is permitted at all,
perhaps it does not make so much difference what is taken away,
since the officers will ordinarily Page 387 U. S. 321 not be interested in what does not incriminate, and there can be
no sound policy in protecting what does. Nevertheless, limitations
upon the fruit to be gathered tend to limit the quest itself. . .
."

															The right of privacy protected by the Fourth Amendment relates
in part, of course, to the precincts of the home or the office. But
it does not make them sanctuaries where the law can never reach.
There are such places in the world. A mosque in Fez, Morocco, that
I have visited, is, by custom, a sanctuary where any refugee may
hide, safe from police intrusion. We have no such sanctuaries here.
A policeman in "hot pursuit" or an officer with a search warrant
can enter any house, any room, any building, any office. The
privacy of those places is, of course, protected against invasion
except in limited situations. The full privacy protected by the
Fourth Amendment is, however, reached when we come to books,
pamphlets, papers, letters, documents, and other personal effects.
Unless they are contraband or instruments of the crime, they may
not be reached by any warrant, nor may they be lawfully seized by
the police who are in "hot pursuit." By reason of the Fourth
Amendment, the police may not rummage around among these personal
effects, no matter how formally perfect their authority may appear
to be. They may not seize them. If they do, those articles may not
be used in evidence. Any invasion whatsoever of those personal
effects is "unreasonable" within the meaning of the Fourth
Amendment. That is the teaching of Entick v. Carrington, Boyd
v. United States, and Gouled v. United States. Some seek to explain Entick v. Carrington on the ground
that it dealt with seditious libel and that any search for
political tracts or letters under our Bill of Rights would be
unlawful per se because of the First Page 387 U. S. 322 Amendment and therefore "unreasonable" under the Fourth. That
argument misses the main point. A prosecution for seditious libel
would, of course, be unconstitutional under the First Amendment,
because it bars laws "abridging the freedom of speech, or of the
press." The First Amendment also has a penumbra, for, while it
protects only "speech" and "press," it also protects related rights
such as the right of association. See NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 460 , 357 U. S. 462 ; Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 523 ; Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 486 ; Louisiana v. NAACP, 366 U. S. 293 , 366 U. S. 296 ,
and NAACP v. Button, 371 U. S. 415 , 371 U. S.
430 -431. So it could be held, quite apart from the
Fourth Amendment, that any probing into the area of opinions and
beliefs would be barred by the First Amendment. That is the essence
of what we said in Watkins v. United States, 354 U.
S. 178 , 354 U. S.
197 :

															"Clearly, an investigation is subject to the command that the
Congress shall make no law abridging freedom of speech or press or
assembly. While it is true that there is no statute to be reviewed,
and that an investigation is not a law, nevertheless an
investigation is part of lawmaking. It is justified solely as an
adjunct to the legislative process. The First Amendment may be
invoked against infringement of the protected freedoms by law or by
lawmaking."

															But the privacy protected by the Fourth Amendment is much wider
than the one protected by the First. Boyd v. United States was a forfeiture proceeding under the customs revenue law, and the
paper held to be beyond the reach of the Fourth Amendment was an
invoice covering the imported goods. 116 U.S. at 116 U. S.
617 -619, 116 U. S. 638 .
And as noted, Gouled v. United States involved a
prosecution for defrauding the Government under procurement
contracts and the papers held protected against Page 387 U. S. 323 seizure, even under a technically proper warrant, were (1) an
unexecuted form of contract between defendant and another person;
(2) a written contract signed by defendant and another person, and
(3) a bill for disbursement and professional services rendered by
the attorney to the defendant. 255 U.S. at 255 U. S.
306 -307.

															The constitutional philosophy is, I think, clear. The personal
effects and possessions of the individual (all contraband and the
like excepted) are sacrosanct from prying eyes, from the long arm
of the law, from any rummaging by police. Privacy involves the
choice of the individual to disclose or to reveal what he believes,
what he thinks, what he possesses. The article may be a nondescript
work of art, a manuscript of a book, a personal account book, a
diary, invoices, personal clothing, jewelry, or whatnot. Those who
wrote the Bill of Rights believed that every individual needs both
to communicate with others and to keep his affairs to himself. That
dual aspect of privacy means that the individual should have the
freedom to select for himself the time and circumstances when he
will share his secrets with others and decide the extent of that
sharing. [ Footnote 3/2 ] This is his
prerogative Page 387 U. S. 324 not the States'. The Framers, who were as knowledgeable as we,
knew what police surveillance meant and how the practice of
rummaging through one's personal effects could destroy freedom.

															It was in that tradition that we held in Griswold v.
Connecticut, 381 U. S. 479 ,
that lawmakers could not, as respects husband and wife at least,
make the use of contraceptives a crime. We spoke of the
pronouncement in Boyd v. United States that the Fourth and
Fifth Amendments protected the person against all governmental
invasions "of the sanctity of a man's home and the privacies of
life." 116 U.S. at 116 U. S. 630 .
We spoke of the "right to privacy" of the Fourth Amendment upheld
by Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 656 ,
and of the many other controversies "over these penumbral rights of privacy and repose.'" 381 U.S. at 381 U. S. 485 .
And we added: "Would we allow the police to search the sacred precincts of
marital bedrooms for telltale signs of the use of contraceptives?
The very idea is repulsive to the notions of privacy surrounding
the marriage relationship."

															"We deal with a right of privacy older than the Bill of Rights
-- older than our political parties, older than our school system.
Marriage is a coming together for better or for worse, hopefully
enduring, and intimate to the degree of being sacred. It is an
association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral Page 387 U. S. 325 loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior
decisions." Id. at 381 U. S.
485 -486.

															This right of privacy, sustained in Griswold, is kin to
the right of privacy created by the Fourth Amendment. That there is
a zone that no police can enter -- whether, in "hot pursuit" or
armed with a meticulously proper warrant -- has been emphasized by Boyd and by Gouled. They have been consistently
and continuously approved. [ Footnote
3/3 ] I would adhere to them, and leave with the individual the
choice of opening his private effects (apart from contraband and
the like) to the police or keeping their contents a secret and
their integrity inviolate. The existence of that choice is the very
essence of the right of privacy. Without it, the Fourth Amendment
and the Fifth are ready instruments for the police state that the
Framer sought to avoid.

															[ Footnote 3/1 ]

															The Virginia Declaration of Rights, June 12, 1776, in its
Article 10, proclaimed only against "general warrants." See Rutland, The Birth of the Bill of Rights 232 (1955).
And the definition of the general warrant included not only a
license to search for everything in a named place, but to search
all and any places in the discretion of the officers. Frisbie
v. Butler, 1 Kirby 213 (Conn.). See generally Quincy's Mass. Rep. 1761-1772 Appendix I for the forms of these
writs.

															[ Footnote 3/2 ]

															This concept of the right of privacy protected by the Fourth
Amendment is mirrored in the cases involving collateral aspects of
the problem presented in this case:

															"It has, similarly, been held that a defendant cannot complain
of the seizure of books and papers neither his own, nor in his
possession. It is also the well settled rule that, where the papers
are public records, the defendant's custody will not avail him
against their seizure. Where papers are taken out of the custody of
one not their owner, it seems that such person can object if there
has been no warrant, or if the warrant was directed to him, but not
if the warrant is directed to the owner. If the defendant's
property is lawfully out of his possession, it makes no difference
by what means it comes into the Government's hands, as there has
been no compulsion exercised upon him. But the privilege extends to
letters in the mails. The privilege extends to the office, as well
as the home."

															"On the other hand, to enable a person to claim the privilege,
it is not necessary that he be a party to any pending criminal
proceeding. He can object to the illegal seizure of his own
property and resist a forcible production of it even if he is only
called as a witness."

															"Nor must a person be a citizen to be entitled to the protection
of the Fourth Amendment. . . ."

															Fraenkel, Concerning Searches and Seizures, 34 Harv.L.Rev. 361,
375-376.

															[ Footnote 3/3 ] See, e.g., Carroll v. United States, 267 U.
S. 132 , 267 U. S.
149 -150; United States v. Lefkowitz, 285 U. S. 452 , 285 U. S.
464 -466; Davis v. United States, 328 U.
S. 582 , 328 U. S. 590 ,
n. 11; Harris v. United States, 331 U.
S. 145 , 331 U. S. 154 ; United States v. Rabinowitz, 339 U. S.
56 , 339 U. S. 64 , n.
6; Abel v. United States, 362 U.
S. 217 , 362 U. S.
234 -235.

Summary:
Here is a summary of the Supreme Court case, Warden v. Hayden (1967):

The Supreme Court upheld the warrantless search and seizure of evidence from a house where a suspected armed robber, Hayden, was believed to have entered. The Court ruled that the police had probable cause and exigent circumstances to enter the house without a warrant, as they were in pursuit of a suspected dangerous felon.

The Court also rejected the distinction between seizing items of evidential value and those that are instrumentalities, fruits, or contraband. It held that the Fourth Amendment does not prohibit the seizure of mere evidence, as privacy, not property rights, is its primary concern. Additionally, the seized items were not "testimonial" and did not violate Hayden's Fifth Amendment rights.

In this case, the Court expanded the scope of warrantless searches and seizures, prioritizing the pursuit of justice and public safety over the protection of privacy interests in certain situations.


U.S. Supreme Court McCray v. Illinois, 386
U.S. 300 (1967) McCray v. Illinois No. 159 Argued January 10-11,
1967 Decided March 20,
1967 386
U.S. 300 CERTIORARI TO THE SUPREME COURT OF
ILLINOIS Syllabus Following receipt of information from an informer, two Chicago
policemen made a warrantless arrest of the petitioner for
possessing narcotics. At the pretrial hearing on petitioner's
motion to suppress the evidence which was found on his person, the
officers testified that: the informant had told them that
petitioner "was selling narcotics and had narcotics on his person"
and the area where petitioner could then be found; they found him
in that vicinity; after pointing petitioner out, the informant
departed; they arrested petitioner and searched him in their
vehicle and found the narcotics on his person. The officers also
testified that, during the one to two years, respectively, that
they had known the informant, he had frequently furnished accurate
information about narcotics activities which had led to many
convictions. Petitioner requested the informant's identity, and the
State, relying on the testimonial privilege under Illinois law
against such disclosure, objected. The State's objections were
sustained, petitioner's motion to suppress was denied, and he was
thereafter convicted upon the basis of the evidence seized. The
judgment of conviction was affirmed by the State Supreme Court,
which held the arrest lawful and not vitiated by the application of
the "informer's privilege." Held: 1. Upon the basis of the circumstances related by the officers,
they had probable cause to make the arrest and the search
incidental thereto. P. 386 U. S.
304 .

															2. A state court is under no absolute duty under either the Due
Process Clause of the Fourteenth Amendment or under the Sixth
Amendment as incorporated therein to require disclosure of an
informer's identity at a pretrial hearing held for the purpose of
determining only the question of probable cause for an arrest or
search where, as here, there was ample evidence in an open and
adversary proceeding that the informer was known to the officers to
be reliable and that they made the arrest in good faith upon the
information he supplied. Pp. 386 U. S.
305 -314. 33 Ill. 2d
66 , 210 N.E.2d
161 , affirmed. Page 386 U. S. 301 MR. JUSTICE STEWART delivered the opinion the Court.

															The petitioner was arrested in Chicago, Illinois, on the morning
of January 16, 1964, for possession of narcotics. The Chicago
police officers who made the arrest found a package containing
heroin on his person, and he was indicted for its unlawful
possession. Prior to trial, he filed a motion to suppress the
heroin as evidence against him, claiming that the police had
acquired it in an unlawful search and seizure in violation of the
Fourth and Fourteenth Amendments. See Mapp v. Ohio, 367 U. S. 643 .
After a hearing, the court denied the motion, and the petitioner
was subsequently convicted upon the evidence of the heroin the
arresting officers had found in his possession. The judgment of
conviction was affirmed by the Supreme Court of Illinois, [ Footnote 1 ] and we granted certiorari
to consider the petitioner's claim that the hearing on his motion
to suppress was constitutionally defective. [ Footnote 2 ]

															The petitioner's arrest occurred near the intersection of 49th
Street and Calumet Avenue at about seven in the morning. At the
hearing on the motion to suppress, he testified that, up until a
half hour before he was arrested, he had been at "a friend's house"
about a block away, Page 386 U. S. 302 that, after leaving the friend's house, he had "walked with a
lady from 48th to 48th and South Park," and that, as he approached
49th Street and Calumet Avenue, "[t]he Officers stopped me going
through the alley." "The officers," he said, "did not show me a
search warrant for my person or an arrest warrant for my arrest."
He said the officers then searched him and found the narcotics in
question. [ Footnote 3 ] The
petitioner did not identify the "friend" or the "lady," and neither
of them appeared as a witness.

															The arresting offices then testified. Officer Jackson stated
that he and two fellow officers had had a conversation with an
informant on the morning of January 16 in their unmarked police
car. The officer said that the informant had told them that the
petitioner, with whom Jackson was acquainted,

															"was selling narcotics, and had narcotics on his person, and
that he could be found in the vicinity of 47th and Calumet at this
particular time."

															Jackson said that he and his fellow officers drove to that
vicinity in the police car and that, when they spotted the
petitioner, the informant pointed him out and then departed on
foot. Jackson stated that the officers observed the petitioner
walking with a woman, then separating from her and meeting briefly
with a man, then proceeding alone, and finally, after seeing the
police car, "hurriedly walk[ing] between two buildings." "At this
point," Jackson testified,

															"my partner and myself got out of the car and informed him we
had information he had narcotics on his person, placed him in the
police vehicle at this point."

															Jackson stated that the officers then searched Page 386 U. S. 303 the petitioner and found the heroin in a cigarette package.
Jackson testified that he had been acquainted with the informant
for approximately a year, that, during this period, the informant
had supplied him with information about narcotics activities
"fifteen, sixteen times at least," that the information had proved
to be accurate and had resulted in numerous arrests and conviction.
On cross-examination, Jackson was even more specific as to the
informant's previous reliability, giving the names of people who
had been convicted of narcotics violation as the result of
information the informant had supplied. When Jackson was asked for
the informant's name and address, counsel for the State objected,
and the objection was sustained by the court. [ Footnote 4 ]

															Officer Arnold gave substantially the same account of the
circumstances of the petitioner's arrest and search, stating that
the informant had told the officers that the petitioner "was
selling narcotics and had narcotics on his Page 386 U. S. 304 person now in the vicinity of 47th and Calumet." The informant,
Arnold testified, "said he had observed [the petitioner] selling
narcotics to various people, meaning various addicts, in the area
of 47th and Calumet." Arnold testified that he had known the
informant "roughly two years," that the informant had given him
information concerning narcotics "20 or 25 times," and that the
information had resulted in convictions. Arnold too was asked on
cross-examination for the informant's name and address, and
objections to these questions were sustained by the court.

															There can be no doubt, upon the basis of the circumstances
related by Officers Jackson and Arnold, that there was probable
cause to sustain the arrest and incidental search in this case. Draper v. United States, 358 U. S. 307 .
Unlike the situation in Beck v. Ohio, 379 U. S.
89 , each of the officers in this case described with
specificity "what the informer actually said, and why the officer
thought the information was credible." 379 U.S. at 379 U. S. 97 .
The testimony of each of the officers informed the court of the

															"underlying circumstances from which the informant concluded
that the narcotics were where he claimed they were, and some of the
underlying circumstances from which the officer concluded that the
informant . . . was 'credible' or his information 'reliable.'" Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 114 . See United States v. Ventresca, 380 U.
S. 102 . Upon the basis of those circumstances, along
with the officers' personal observations of the petitioner, the
court was fully justified in holding that, at the time the officers
made the arrest,

															"the facts and circumstances within their knowledge and of which
they had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the petitioner had
committed or was committing an offense. Brinegar v. United
States, 33 U. S. 160 , 33 U. S.
175 -176; Henry v. United States, 361 U. S.
98 , 361 U. S. 102 ." Beck Page 386 U. S. 305 v. Ohio, supra, at 379 U. S. 91 . It
is the petitioner's claim, however, that, even though the officers'
sworn testimony fully supported a finding of probable cause for the
arrest and search, the state court nonetheless violated the
Constitution when it sustained objections to the petitioner's
questions a to the identity of the informant. We cannot agree.

															In permitting the officers to withhold the informant's identity,
the court was following well settled Illinois law. When the issue
is not guilt or innocence, but, as here, the question of probable
cause for an arrest or search, the Illinois Supreme Court has held
that police officer need not invariably be required to disclose an
informant's identity if the trial judge is convinced, by evidence
submitted in open court and subject to cross-examination, that the
officers did rely in good faith upon credible information supplied
by a reliable informant. [ Footnote
5 ] This Illinois evidentiary rule is consistent with the law of
many other States. [ Footnote 6 ]
In California, the State Legislature in 1965 enacted a statute
adopting just such a rule for cases like the one before us:

															"[I]n any preliminary hearing, criminal trial, or other criminal
proceeding, for violation of any provision of Division 10
(commencing with Section 11000) of the Health and Safety Code,
evidence of information Page 386 U. S. 306 communicated to a peace officer by a confidential informant, who
is not a material witness to the guilt or innocence of the accused
of the offense charged, shall be admissible on the issue of
reasonable cause to make an arrest or search without requiring that
the name or identity of the informant be disclosed if the judge or
magistrate is satisfied, based upon evidence produced in open
court, out of the presence of the jury, that such information was
received from a reliable informant and in his discretion does not
require such disclosure."

															California Evid.Code § 1042(c). [ Footnote 7 ]

															The reasoning of the Supreme Court of New Jersey in judicially
adopting the same basic evidentiary rule was instructively
expressed by Chief Justice Weintraub in State v. Burnett, 42 N.J. 377, 201 A.2d 39:

															"If a defendant may insist upon disclosure of the informant in
order to test the truth of the officer's statement that there is an
informant or as to what the informant related or as to the
informant's reliability, we can be sure that every defendant will
demand disclosure. He has nothing to lose, and the prize may be the
suppression of damaging evidence if the State cannot afford to
reveal its source, as is so often the case. And since there is no
way to test the good faith of a defendant who presses the demand,
we must assume the routine demand would have to be routinely
granted. The result would be that the State could use the
informant's information only as Page 386 U. S. 307 a lead, and could search only if it could gather adequate
evidence of probable cause apart from the informant's data. Perhaps
that approach would sharpen investigatorial techniques, but we
doubt that there would be enough talent and time to cope with crime
upon that basis. Rather, we accept the premise that the informer is
a vital part of society's defensive arsenal. The basic rule
protecting his identity rests upon that belief."

															" * * * *" "We must remember also that we are not dealing with the trial of
the criminal charge itself. There, the need for a truthful verdict
outweighs society's need for the informer privilege. Here, however,
the accused seeks to avoid the truth. The very purpose of a motion
to suppress is to escape the inculpatory thrust of evidence in
hand, not because its probative force is diluted in the least by
the mode of seizure, but rather as a sanction to compel enforcement
officer to respect the constitutional security of all of us under
the Fourth Amendment. State v. Smith, 37 N.J. 481, 486
(1962). If the motion to suppress is denied, defendant will still
be judged upon the untarnished truth."

															" * * * *" "The Fourth Amendment is served if a judicial mind passes upon
the existence of probable cause. Where the issue is submitted upon
an application for a warrant, the magistrate is trusted to evaluate
the credibility of the affiant in an ex parte proceeding.
As we have said, the magistrate is concerned not with whether the
informant lied, but with whether the affiant is truthful in his
recitation of what he was told. If the magistrate doubts the
credibility of the affiant, he may require that the Page 386 U. S. 308 informant be identified or even produced. It seems to us that
the same approach is equally sufficient where the search was
without a warrant, that is to say, that it should rest entirely
with the judge who hears the motion to suppress to decide whether
he needs such disclosure as to the informant in order to decide
whether the officer is a believable witness."

															42 N.J. at 385-388, 201 A.2d at 435.

															What Illinois and her sister States have done is no more than
recognize a well established testimonial privilege, long familiar
to the law of evidence. Professor Wigmore, not known as an
enthusiastic advocate of testimonial privileges generally,
[ Footnote 8 ] has described that
privilege in these words:

															"A genuine privilege, on . . . fundamental principle . . . ,
must be recognized for the identity of persons supplying the
government with information concerning the commission of
crimes. Communications of this kind ought to receive
encouragement. They are discouraged if the informer's identity is
disclosed. Whether an informer is motivated by good citizenship,
promise of leniency or prospect of pecuniary reward, he will
usually condition his cooperation on an assurance of anonymity --
to protect himself and his family from harm, to preclude adverse
social reactions, and to avoid the risk of defamation or malicious
prosecution actions against him. The government also has an
interest in nondisclosure of the identity of its informers. Law
enforcement officers often depend upon professional informers to
furnish them with a flow of information about criminal activities.
Revelation of the dual role played by such persons ends their
usefulness Page 386 U. S. 309 to the government and discourages others from entering into a
like relationship."

															"That the government has this privilege is well established, and
its soundness cannot be questioned."

															(Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton
rev.1961).

															In the federal courts, the rules of evidence in criminal trial
are governed "by the principles of the common law as they may be
interpreted by the courts of the United States in the light of
reason and experience." [ Footnote
9 ] This Court, therefore, has the ultimate task of defining the
scope to be accorded to the various common law evidentiary
privileges in the trial of federal criminal cases. See Hawkins
v. United States, 358 U. S. 74 . This
is a task which is quite different, of course, from the
responsibility of constitutional adjudication. In the exercise of
this supervisory jurisdiction, the Court had occasion 10 years ago,
in Roviaro v. United States, 353 U. S.
53 , to give thorough consideration to one aspect of the
informer's privilege, the privilege itself having long been
recognized in the federal judicial system. [ Footnote 10 ]

															The Roviaro case involved the informer's privilege not
at a preliminary hearing to determine probable cause for an arrest
or search, but at the trial itself, where the issue was the
fundamental one of innocence or guilt. The petitioner there had
been brought to trial upon a two-count federal indictment charging
sale and transportation of narcotics. According to the
prosecution's evidence, the informer had been an active participant
in the crime. He

															"had taken a material part in bringing about the possession of
certain drugs by the accused, had been present with the accused at
the occurrence of Page 386 U. S. 310 the alleged crime, and might be a material witness as to whether
the accused knowingly transported the drugs as charged."

															353 U.S. at 353 U. S. 55 .
The trial court nonetheless denied a defense motion to compel the
prosecution to disclose the informer's identity.

															This Court held that, where, in an actual trial of a federal
criminal case,

															"the disclosure of an informer's identity . . . is relevant and
helpful to the defense of an accused, or is essential to a fair
determination of a cause, the privilege must give way. In these
situations, the trial court may require disclosure and, if the
Government withholds the information, dismiss the action. . .
."

															" * * * *" "We believe that no fixed rule with respect to disclosure is
justifiable. The problem is one that calls for balancing the public
interest in protecting the flow of information against the
individual's right to prepare his defense. Whether a proper balance
renders nondisclosure erroneous must depend on the particular
circumstances of each case, taking into consideration the crime
charged, the possible defenses, the possible significance of the
informer's testimony, and other relevant factors."

															353 U.S. at 353 U. S. 60 -61,
62. (Footnotes omitted.)

															The Court's opinion then carefully reviewed the particular
circumstances of Roviaro's trial, pointing out that the informer's
"possible testimony was highly relevant . . . ," that he "might
have disclosed an entrapment . . . ," "might have thrown doubt upon
petitioner's identity or on the identity of the package . . . ,"
"might have testified to petitioner's possible lack of knowledge of
the contents of the package that he transported' . . . ," and
that the "informer was the sole participant, other Page 386 U. S.
311 than the accused, in the transaction charged." 353 U.S. at 353 U. S. 63 -64.
The Court concluded "that, under these circumstances, the trial court committed
prejudicial error in permitting the Government to withhold the
identity of its undercover employee in the face of repeated demands
by the accused for his disclosure."

															353 U.S. at 353 U. S.
65 .

															What Roviaro thus makes clear is that this Court was
unwilling to impose any absolute rule requiring disclosure of an
informer's identity even in formulating evidentiary rules for
federal criminal trials. Much less has the Court ever approached
the formulation of a federal evidentiary rule of compulsory
disclosure where the issue is the preliminary one of probable
cause, and guilt or innocence is not at stake. Indeed, we have
repeatedly made clear that federal officers need not disclose an
informer's identity in applying for an arrest or search warrant. As
was said in United States v. Ventresca, 380 U.
S. 102 , 380 U. S. 108 ,
we have

															"recognized that "an affidavit may be based on hearsay
information, and need not reflect the direct personal observations
of the affiant," so long as the magistrate is "informed of some of
the underlying circumstances" supporting the affiant's conclusions
and his belief that any informant involved " whose identity need
not be disclosed, . . . was credible,' or his information
`reliable.'" Aguilar v. Texas, supra, at 278 U. S.
114 ." (Emphasis added.) See also Jones v. United States, 362 U. S. 257 , 362 U. S.
271 -272; Rugendorf v. United States, 376 U. S. 528 , 376 U. S. 533 .
[ Footnote 11 ] And Page 386 U. S. 312 just this Term, we have taken occasion to point out that a rule
virtually prohibiting the use of informers would "severely hamper
the Government" in enforcement of the narcotics laws. Lewis v.
United States, 385 U. S. 206 , 385 U. S.
210 .

															In sum, the Court, in the exercise of its power to formulate
evidentiary rules for federal criminal cases, has consistently
declined to hold that an informer's identity need always be
disclosed in a federal criminal trial, let alone in a preliminary
hearing to determine probable cause for an arrest or search. Yet we
are now asked to hold that the Constitution somehow compels
Illinois to abolish the informer's privilege from its law of
evidence, and to require disclosure of the informer's identity in
every such preliminary hearing where it appears that the officers
made the arrest or search in reliance upon facts supplied by an
informer they had reason to trust. The argument is based upon the
Due Page 386 U. S. 313 Process Clause of the Fourteenth Amendment, and upon the Sixth
Amendment right of confrontation, applicable to the States through
the Fourteenth Amendment. Pointer v. Texas, 380 U.
S. 400 . We find no support for the petitioner's position
in either of those constitutional provisions.

															The arresting officers in this case testified, in open court,
fully and in precise detail as to what the informer told them and
as to why they had reason to believe his information was
trustworthy. Each officer was under oath. Each was subjected to
searching cross-examination. The judge was obviously satisfied that
each was telling the truth, and, for that reason, he exercised the
discretion conferred upon him by the established law of Illinois to
respect the informer's privilege.

															Nothing in the Due Process Clause of the Fourteenth Amendment
requires a state court judge in every such hearing to assume the
arresting officers are committing perjury.

															"To take such a step would be quite beyond the pale of this
Court's proper function in our federal system. It would be a wholly
unjustifiable encroachment by this Court upon the constitutional
power of States to promulgate their own rules of evidence . . . in
their own state courts. . . ." Spencer v. Texas, 385 U. S. 554 , 385 U. S.
568 -569.

															The petitioner does not explain precisely how he thinks his
Sixth Amendment right to confrontation and cross-examination was
violated by Illinois' recognition of the informer's privilege in
this case. If the claim is that the State violated the Sixth
Amendment by not producing the informer to testify against the
petitioner, then we need no more than repeat the Court's answer to
that claim a few weeks ago in Cooper v. California: "Petitioner also presents the contention here that he was
unconstitutionally deprived of the right to confront a witness
against him, because the State Page 386 U. S. 314 did not produce the informant to testify against him. This
contention we consider absolutely devoid of merit." Ante, p. 386 U. S. 58 , at 386 U. S. 62 , n.
2. On the other hand, the claim may be that the petitioner was
deprived of his Sixth Amendment right to cross-examine the
arresting officers themselves because their refusal to reveal the
informer's identity was upheld. But it would follow from this
argument that no witness on cross-examination could ever
constitutionally assert a testimonial privilege, including the
privilege against compulsory self-incrimination guaranteed by the
Constitution itself. We have never given the Sixth Amendment such a
construction, and we decline to do so now. Affirmed. [ Footnote 1 ] 33 Ill. 2d
66 , 210 N.E.2d
161 .

															[ Footnote 2 ]

															384 U.S. 949.

															[ Footnote 3 ]

															The weather was "real cold," and the petitioner testified he
"had on three coats." In order to conduct the search, the arresting
officers required the petitioner to remove some of his clothing,
but even the petitioner's version of the circumstances of the
search did not disclose any conduct remotely akin to that condemned
by this Court in Rochin v. California, 342 U.
S. 165 .

															[ Footnote 4 ]

															"Q. What is the name of this informant that gave you this
information?"

															"Mr. Engerman: Objection, Your Honor."

															"The Court: State for the record the reasons for your
objection."

															"Mr. Engerman: Judge, based upon the testimony of the officer so
far that they had used this informant for approximately a year, he
has worked with this individual, in the interest of the public, I
see no reason why the officer should be forced to disclose the name
of the informant, to cause harm or jeopardy to an individual who
has cooperated with the police. The City of Chicago have a
tremendous problem with narcotics. If the police are not able to
withhold the name of the informant, they will not be able to get
informants. They are not willing to risk their lives if their names
become known."

															"In the interest of the City and the law enforcement of this
community, I feel the officer should not be forced to reveal the
name of the informant. And I also cite People vs.
Durr. "

															"The Court: I will sustain that."

															"Mr. Adam: Q. Where does this informant live?"

															"Mr. Engerman: Objection, your Honor, same basis."

															"The Court: Sustained."

															[ Footnote 5 ] People v. Durr, 28 Ill. 2d
308 , 192 N.E.2d
379 ; People v. Nettles, 34 Ill. 2d
52 , 213 N.E.2d
536 ; People v. Connie, 34 Ill. 2d
353 , 215 N.E.2d
280 ; People v. Freeman, 34 Ill. 2d
362 , 215 N.E.2d 20B; People v. Miller, 34 Ill. 2d
527 , 216 N.E.2d
793 . Cf. People v. Pitts, 26 Ill. 2d
395 , 186 N.E.2d
357 ; People v. Parren, 24 Ill. 2d
572 , 182 N.E.2d
662 .

															[ Footnote 6 ] State v. Cookson, 361 3. W.2d 683 (Mo.Sup.Ct.); Simmons v. State, 198 Tenn. 587, 281
S.W.2d 487 ; People v. Coffey, 12 N.Y.2d 443, 191
N.E.2d 263. But see People v. Malinsky, 15 N.Y.2d 86, 209
N.E.2d 694. Cf. Stelloh v. Liban, 21 Wis.2d 119, 124
N.W.2d 101; Baker v. State, 150 So. 2d 729 (Fla. App.); State v. Boles, 246 N.C. 83, 97 S.E.2d
476 .

															[ Footnote 7 ]

															In the present case, California has filed a helpful amicus brief, advising us that the validity of this
provision is now before the Supreme Court of California. Martin
v. Superior Court (LA 29078). The statute was enacted to
modify that court's decision in Priestly v. Superior
Court, 50 Cal. 2d
812 , 330 P.2d 39. See also Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.

															[ Footnote 8 ] See 8 Wigmore, Evidence § 2192 (McNaughton
rev.1961).

															[ Footnote 9 ]

															Rule 26, Fed.Rules Crim.Proc.

															[ Footnote 10 ] See Scher v. United States, 305 U.
S. 251 ; In re Quarles & Butler, 158 U. S. 532 ; Vogel v. Gruaz, 110 U. S. 311 .

															[ Footnote 11 ]

															Some federal courts have applied the same rule of nondisclosure
in both warrant and nonwarrant cases. Smith v. United
States, 123 U.S.App.D.C. 202, 358 F.2d 833; Jones v.
United States, 326 F.2d 124 (C.A. 9th Cir.), cert.
denied, 377 U.S. 956; United States v. One 1957 Ford
Ranchero Pickup, 265 F.2d 21 (C.A. 10th Cir.). Other federal
courts, however, have distinguished between these two classes of
cases, and have required the identification of informants in
nonwarrant cases. United States v. Robinson, 325 F.2d 391
(C.A.2d Cir.); Cochran v. United States, 291 F.2d 633
(C.A. 8th Cir.). Cf. Wilson v. United States, 59 F.2d 390
(C.A.3d Cir.). See Comment, Informer's Word as the Basis
for Probable Cause in the Federal Courts, 53 Calif.L.Rev. 840
(1965).

															In drawing this distinction, some of the federal courts have
relied upon a dictum in Roviaro v. United States, 353 U. S. 53 , 353 U. S.
61 :

															"Most of the federal cases involving this limitation on the
scope of the informer's privilege have arisen where the legality of
a search without a warrant is in issue and the communications of an
informer are claimed to establish probable cause. In these cases,
the Government has been required to disclose the identity of the
informant unless there was sufficient evidence apart from his
confidential communication."

															Since there was no probable cause issue in Roviaro, the
quoted statement was clearly not necessary for decision. Indeed, an
absolute rule of disclosure for probable cause determinations would
conflict with the case-by-case approach upon which the Roviaro decision was based. Moreover, the precedent upon
which this dictum was grounded furnishes only dubious support. Scher v. United States, 305 U. S. 251 , the
only decision of this Court which was cited, affirmed the trial
judge's refusal to order arresting officers to reveal the
source of their information.

															MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BRENNAN and MR. JUSTICE FORTAS concur, dissenting.

															We have here a Fourth Amendment question concerning the validity
of an arrest. If the police see a crime being committed, they can,
of course, seize the culprit. If a person is fleeing the scene of a
crime, the police can stop him. And there are the cases of "hot
pursuit" and other instances of probable cause when the police can
make an arrest. But normally an arrest should be made only on a
warrant issued by a magistrate on a showing of "probable cause,
supported by oath or affirmation," as required by the Fourth
Amendment. At least since Mapp v. Ohio, 367 U.
S. 643 , the States are as much bound by those provisions
as is the Federal Government. But for the Fourth Amendment, they
could fashion the rule for arrests that the Court now approves.
With all deference, the requirements of the Fourth Amendment now
make that conclusion unconstitutional.

															No warrant for the arrest of petitioner was obtained in this
case. The police, instead of going to a magistrate Page 386 U. S. 315 and making a showing of "probable cause" based on their
informant's tip-off, acted on their own. They, rather than the
magistrate, became the arbiters of "probable cause." The Court's
approval of that process effectively rewrites the Fourth
Amendment.

															In Roviaro v. United States, 353 U. S.
53 , 353 U. S. 61 , we
held that, where a search without a warrant is made on the basis of
communications of an informer and the Government claims the police
had "probable cause," disclosure of the identity of the informant
is normally required. In no other way can the defense show an
absence of "probable cause." By reason of Mapp v. Ohio,
supra, that rule is now applicable to the States.

															In Beck v. Ohio, 379 U. S. 89 , 379 U. S. 96 , we
said:

															"An arrest without a warrant bypasses the safeguards provided by
an objective predetermination of probable cause, and substitutes
instead the far less reliable procedure of an after-the-event
justification for the arrest or search, too likely to be subtly
influenced by the familiar shortcomings of hindsight judgment."

															For that reason, we have weighted arrests with warrants more
heavily than arrests without warrants. See United States v.
Ventresca, 380 U. S. 102 , 380 U. S. 106 .
Only through the informer's testimony can anyone other than the
arresting officers determine "the persuasiveness of the facts
relied on . . . to show probable cause." Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 113 .
[ Footnote 2/1 ] Without that
disclosure, neither we nor the lower courts can ever know whether
there was "probable cause" for the arrest. Under the present
decision, we leave the Fourth Amendment exclusively in the custody
of the police. As stated by Mr. Justice Schaefer, dissenting in People v. Durr, 28 Ill. 2d
308 , 318, 192 N.E.2d
379 , 384 , unless
the identity of the informer is disclosed "the policeman himself
conclusively Page 386 U. S. 316 determines the validity of his own arrest." That was the view of
the Supreme Court of California in Priestly v. Superior
Court, 50 Cal. 2d
812 , 818, 330 P.2d 39, 43:

															"Only by requiring disclosure and giving the defendant an
opportunity to present contrary or impeaching evidence as to the
truth of the officer's testimony and the reasonableness of his
reliance on the informer can the court make a fair determination of
the issue. Such a requirement does not unreasonably discourage the
free flow of information to law enforcement officers or otherwise
impede law enforcement. Actually, its effect is to compel
independent investigations to verify information given by an
informer or to uncover other facts that establish reasonable cause
to make an arrest or search."

															There is no way to determine the reliability of Old Reliable,
the informer, unless he is produced at the trial and
cross-examined. Unless he is produced, the Fourth Amendment is
entrusted to the tender mercies of the police. [ Footnote 2/2 ] What we do today is to encourage
arrests and searches without warrants. The whole momentum of
criminal law administration should be in precisely the opposite
direction if the Fourth Amendment is to remain a vital force.
Except in rare and emergency cases, it requires magistrates to make
the findings of "probable cause." We should be mindful of its
command that a judicial mind should be interposed between the
police and the citizen. We should also be mindful that "disclosure,
rather than suppression, of relevant materials ordinarily promotes
the proper administration of criminal justice." Dennis v.
United States, 384 U. S. 855 , 384 U. S.
870 .

															[ Footnote 2/1 ]

															Quoting from Giordenello v. United States, 357 U.
S. 480 , 357 U. S.
486 .

															[ Footnote 2/2 ]

															It is not unknown for the arresting officer to misrepresent his
connection with the informer, his knowledge of the informer's
reliability, or the information allegedly obtained from the
informer. See, e.g., United States v. Pearce, 275 F.2d
318, 322.

Summary: The Supreme Court ruled that the police had probable cause to arrest McCray and conduct a search, which led to the discovery of narcotics on his person. The Court also held that a state court is not required to disclose an informant's identity at a pretrial hearing to determine probable cause for an arrest or search, as long as there is sufficient evidence that the informant is reliable and the arrest was made in good faith based on the information provided.