U.S. Supreme Court Wolf v. Colorado, 338 U.S.
25 (1949) Wolf v. Colorado Nos. 17 and 18 Argued October 19,
1948 Decided June 27, 1949 338 U.S.
25 CERTIORARI TO THE SUPREME COURT OF
COLORADO Syllabus In a prosecution in a state court for a state crime, the
Fourteenth Amendment of the Federal Constitution does not forbid
the admission of relevant evidence even though obtained by an
unreasonable search and seizure. Pp. 338 U. S.
25 -33.

															(a) Arbitrary intrusion into privacy by the police is prohibited
by the Due Process Clause of the Fourteenth Amendment. Pp. 338 U. S.
27 -28.

															(b) While the doctrine of Weeks v. United States, 232 U. S. 383 ,
making evidence secured in violation of the Fourth Amendment
inadmissible in federal courts, is adhered to, it is not imposed on
the States by the Fourteenth Amendment. Pp. 338 U. S.
28 -33.

															117 Colo. 279, 321, 187 P.2d 926, 928, affirmed.

															Judgments of conviction in two criminal prosecutions in a state
court were sustained by the State Supreme Court against claims of
denial of rights under the Federal Constitution. 117 Colo. 279,
321, 187 P.2d 926, 928. This Court granted certiorari. 333 U.S.
879. Affirmed, p. 338 U. S. 33 .

															MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

															The precise question for consideration is this: does a
conviction by a State court for a State offense deny the "due
process of law" required by the Fourteenth Amendment, solely
because evidence that was admitted Page 338 U. S. 26 at the trial was obtained under circumstances which would have
rendered it inadmissible in a prosecution for violation of a
federal law in a court of the United States because there deemed to
be an infraction of the Fourth Amendment as applied in Weeks v.
United States, 232 U. S. 383 ? The
Supreme Court of Colorado has sustained convictions in which such
evidence was admitted, 117 Col. 279, 187 P.2d 926; 117 Col. 321,
187 P.2d 928, and we brought the cases here. 333 U.S. 879.

															Unlike the specific requirements and restrictions placed by the
Bill of Rights (Amendments I to VIII) upon the administration of
criminal justice by federal authority, the Fourteenth Amendment did
not subject criminal justice in the States to specific limitations.
The notion that the "due process of law" guaranteed by the
Fourteenth Amendment is shorthand for the first eight amendments of
the Constitution, and thereby incorporates them, has been rejected
by this Court again and again, after impressive consideration. See, e.g., Hurtado v. California, 110 U.
S. 516 ; Twining v. New Jersey, 211 U. S.
78 ; Brown v. Mississippi, 297 U.
S. 278 ; Palko v. Connecticut, 302 U.
S. 319 . Only the other day, the Court reaffirmed this
rejection after thorough reexamination of the scope and function of
the Due Process Clause of the Fourteenth Amendment. Adamson v.
California, 332 U. S. 46 . The
issue is closed.

															For purposes of ascertaining the restrictions which the Due
Process Clause imposed upon the States in the enforcement of their
criminal law, we adhere to the views expressed in Palko v.
Connecticut, supra, 302 U. S. 319 .
That decision speaks to us with the great weight of the authority,
particularly in matters of civil liberty, of a court that included
Mr. Chief Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone
and Mr. Justice Cardozo, to name only the dead. In rejecting the
suggestion that the Due Process Clause incorporated the original
Bill of Rights, Mr. Justice Cardozo reaffirmed on behalf of
that Page 338 U. S. 27 Court a different but deeper and more pervasive conception of
the Due Process Clause. This Clause exacts from the States for the
lowliest and the most outcast all that is "implicit in the concept
of ordered liberty." 302 U.S. at 302 U. S.
325 .

															Due process of law thus conveys neither formal nor fixed nor
narrow requirements. It is the compendious expression for all those
rights which the courts must enforce because they are basic to our
free society. But basic rights do not become petrified as of any
one time, even though, as a matter of human experience, some may
not too rhetorically be called eternal verities. It is of the very
nature of a free society to advance in its standards of what is
deemed reasonable and right. Representing as it does a living
principle, due process is not confined within a permanent catalogue
of what may at a given time be deemed the limits or the essentials
of fundamental rights.

															To rely on a tidy formula for the easy determination of what is
a fundamental right for purposes of legal enforcement may satisfy a
longing for certainty, but ignores the movements of a free society.
It belittles the scale of the conception of due process. The real
clue to the problem confronting the judiciary in the application of
the Due Process Clause is not to ask where the line is once and for
all to be drawn, but to recognize that it is for the Court to draw
it by the gradual and empiric process of "inclusion and exclusion." Davidson v. New Orleans, 96 U. S. 97 , 96 U. S. 104 .
This was the Court's insight when first called upon to consider the
problem; to this insight, the Court has, on the whole, been
faithful as case after case has come before it since Davidson
v. New Orleans was decided.

															The security of one's privacy against arbitrary intrusion by the
police -- which is at the core of the Fourth Amendment -- is basic
to a free society. It is therefore implicit in "the concept of
ordered liberty," and, as such, enforceable against the States
through the Due Process Page 338 U. S. 28 Clause. The knock at the door, whether by day or by night, as a
prelude to a search, without authority of law but solely on the
authority of the police, did not need the commentary of recent
history to be condemned as inconsistent with the conception of
human rights enshrined in the history and the basic constitutional
documents of English-speaking peoples.

															Accordingly, we have no hesitation in saying that, were a State
affirmatively to sanction such police incursion into privacy, it
would run counter to the guaranty of the Fourteenth Amendment. But
the ways of enforcing such a basic right raise questions of a
different order. How such arbitrary conduct should be checked, what
remedies against it should be afforded, the means by which the
right should be made effective, are all questions that are not to
be so dogmatically answered as to preclude the varying solutions
which spring from an allowable range of judgment on issues not
susceptible of quantitative solution.

															In Weeks v. United States, supra, this Court held that,
in a federal prosecution the Fourth Amendment barred the use of
evidence secured through an illegal search and seizure. This ruling
was made for the first time in 1914. It was not derived from the
explicit requirements of the Fourth Amendment; it was not based on
legislation expressing Congressional policy in the enforcement of
the Constitution. The decision was a matter of judicial
implication. Since then, it has been frequently applied, and we
stoutly adhere to it. But the immediate question is whether the
basic right to protection against arbitrary intrusion by the police
demands the exclusion of logically relevant evidence obtained by an
unreasonable search and seizure because, in a federal prosecution
for a federal crime, it would be excluded. As a matter of inherent
reason, one would suppose this to be an issue as to which men with
complete devotion to the protection of the right Page 338 U. S. 29 of privacy might give different answers. When we find that, in
fact, most of the English-speaking world does not regard as vital
to such protection the exclusion of evidence thus obtained, we must
hesitate to treat this remedy as an essential ingredient of the
right. The contrariety of views of the States is particularly
impressive in view of the careful reconsideration which they have
given the problem in the light of the Weeks decision.

															"I. Before the Weeks decision, 27 States had passed on
the admissibility of evidence obtained by unlawful search and
seizure."

															" (a) Of these, 26 States opposed the Weeks doctrine.
( See 338 U.S.
25 apptaba|>Appendix, Table A.)"

															" (b) Of these, 1 State anticipated the Weeks doctrine.
( 338 U.S.
25 apptabb|>Table B.)"

															"II. Since the Weeks decision, 47 States all told have
passed on the Weeks doctrine. ( 338 U.S.
25 apptabc|>Table C.)"

															" (a) Of these, 20 passed on it for the first time."

															"~ (1) Of the foregoing States, 6 followed the Weeks doctrine. ( 338 U.S.
25 apptabd|>Table D.)"

															"~ (2) Of the foregoing States, 14 rejected the Weeks doctrine. ( 338 U.S.
25 apptabe|>Table E.)"

															" (b) Of these, 26 States reviewed prior decisions contrary to
the Weeks doctrine."

															"~ (1) Of these, 10 States have followed Weeks ,
overruling or distinguishing their prior decisions. ( 338 U.S.
25 apptabf|>Table F.)"

															"~ (2) Of these, 16 States adhered to their prior decisions
against Weeks. ( 338 U.S.
25 apptabg|>Table G.)"

															" (c) Of these, 1 State repudiated its prior formulation of the Weeks doctrine. ( 338 U.S.
25 apptabh|>Table H.)"

															"III. As of today, 31 States reject the Weeks doctrine,
16 States are in agreement with it. ( 338 U.S.
25 apptabi|>Table I.) " Page 338 U. S. 30 "IV. Of 10 jurisdictions within the United Kingdom and the
British Commonwealth of Nations which have passed on the question,
none has held evidence obtained by illegal search and seizure
inadmissible. ( 338 U.S.
25 apptabj|>Table J.)"

															The jurisdictions which have rejected the Weeks doctrine have not left the right to privacy without other means of
protection. [ Footnote 1 ]
Indeed, the exclusion of evidence Page 338 U. S. 31 is a remedy which directly serves only to protect those upon
whose person or premises something incriminating has been found. We
cannot, therefore, regard it as a departure from basic standards to
remand such persons, together with those who emerge scatheless from
a search, to the remedies of private action and such protection as
the internal discipline of the police, under the eyes of an alert
public opinion, may afford. Granting that, in practice the
exclusion of evidence may be an effective way of deterring
unreasonable searches, it is not for this Court to condemn as
falling below the minimal standards assured by the Due Process
Clause a State's reliance upon other methods which, if consistently
enforced, would be equally effective. Weighty testimony against
such an insistence on our own view is furnished by the opinion of
Mr. Justice (then Judge) Cardozo in People v. Defore, 242
N.Y. 13, 150 N.E. 585. [ Footnote
2 ] We cannot brush aside the experience of States which deem
the incidence of such Page 338 U. S. 32 conduct by the police too slight to call for a deterrent remedy
not by way of disciplinary measures, but by overriding the relevant
rules of evidence. There are, moreover, reasons for excluding
evidence unreasonably obtained by the federal police which are less
compelling in the case of police under State or local authority.
The public opinion of a community can far more effectively be
exerted against oppressive conduct on the part of police directly
responsible to the community itself than can local opinion,
sporadically aroused, be brought to bear upon Page 338 U. S. 33 remote authority pervasively exerted throughout the country.

															We hold, therefore, that, in a prosecution in a State court for
a State crime, the Fourteenth Amendment does not forbid the
admission of evidence obtained by an unreasonable search and
seizure. And though we have interpreted the Fourth Amendment to
forbid the admission of such evidence, a different question would
be presented if Congress, under its legislative powers, were to
pass a statute purporting to negate the Weeks doctrine. We
would then be faced with the problem of the respect to be accorded
the legislative judgment on an issue as to which, in default of
that judgment, we have been forced to depend upon our own. Problems
of a converse character, also not before us, would be presented
should Congress, under § 5 of the Fourteenth Amendment, undertake
to enforce the rights there guaranteed by attempting to make the Weeks doctrine binding upon the States. Affirmed. [ Footnote 1 ]

															The common law provides actions for damages against the
searching officer, e.g., Entick v. Carrington, 2 Wils.
275, 19 How.St.Tr. 1029; Grumon v. Raymond, 1 Conn. 40; Sandford v. Nichols, 13 Mass. 286; Halsted v.
Brice, 13 Mo. 171; Hussey v. Davis, 58 N.H. 317; Reed v. Lucas, 42 Texas 529; against one who procures the
issuance of a warrant maliciously and without probable cause, e.g., Gulsby v. Louisville & N. R. Co., 167 Ala. 122,
52 So. 392; Whitson v. May, 71 Ind. 269; Kretabiel v.
Henkle, 152 Iowa 604, 129 N.W. 945; Olson v. Tvete, 46 Minn. 225, 48 N.W. 914; Boeger v. Langenberg, 97 Mo.
390, 11 S.W. 223; Doane v. Anderson, 60 Hun 586, 15 N.Y.S.
459; Shall v. Minneapolis, St. P. & S.S. M. R. Co., 156 Wis.195, 145 N.W. 649; against a magistrate who has acted
without jurisdiction in issuing a warrant, e.g., Williams v.
Kozak, 280 F. 373 (C.A.4th Cir.); Grumon v. Raymond, 1 Conn. 40; Kennedy v. Terrill, Hardin (Ky.) 490; Shaw
v. Moon, 117 Ore. 558, 245 P. 318, and against persons
assisting in the execution of an illegal search, e.g., Hebrew
v. Pulis, 73 N.J.L. 621, 625, 64 A. 121, 122; Cartwright
v. Canode, 138 S.W. 792 (Tex.Civ.App.), aff'd, 106
Texas 502, 171 S.W. 696. One may also without liability use force
to resist an unlawful search. E.g., Commonwealth v.
Martin, 105 Mass. 178; State v. Mann, 27 N.C. 45.

															Statutory sanctions in the main provide for the punishment of
one maliciously procuring a search warrant or willfully exceeding
his authority in exercising it. E.g., 18 U.S.C. (1946 ed.)
§§ 630, 631; Ala.Code, Tit. 15, § 99 (1940); Ariz.Code Ann. §
44-3513 (1939); Fla.Stat.Ann. §§ 933.16, 933.17 (1944); Iowa Code
§§ 751.38, 751.39 (1946); Mont.Rev.Code Ann. §§ 10948, 10952
(1935); Nev.Comp.Laws §§ 10425, 10426 (1929); N.Y.Crim.Code §§ 811,
812, N.Y.Penal Law §§ 1786, 1847; N.D.Rev.Code §§ 12-1707, 12-1708
(1943); Okla.Stat.Ann., Tit. 21, §§ 536, 585, Tit. 22, §§ 1239,
1240 (1937); Ore.Comp.Laws Ann. § 26-1717 (1940); S.D.Code §§
13.1213, 13.1234, 34.9904, 34.9905 (1939); Tenn.Code Ann. § 1 1905
(1934). Some statutes more broadly penalize unlawful searches. E.g., 18 U.S.C. (1946 ed.) § 53a; Idaho Code Ann. §§
17-1004, 17-1024 (1932); Minn.Stat. §§ 613.54, 621.17 (1945);
Va.Code Ann. § 4822d (Michie, 1942); Wash.Rev.Stat.Ann. §§ 2240-1,
2240-2. Virginia also makes punishable one who issues a general
search warrant or a warrant unsupported by affidavit. Va.Code Ann.
§ 4822e (Michie, 1942). A few States have provided statutory civil
remedies. See, e.g., Ga.Code Ann. § 27-301 (1935);
Ill.Rev.Stat., c. 38, § 698 (Smith-Hurd, 1935); Miss.Code Ann. §
1592 (1942). And in one State, misuse of a search warrant may be
an. abuse of process punishable as contempt of court. See Mich.Stat.Ann. § 27.511 (1938).

															[ Footnote 2 ]

															"We hold, then, with the defendant that the evidence against him
was the outcome of a trespass. The officer might have been
resisted, or sued for damages, or even prosecuted for oppression
(Penal Law, §§ 1846, 1847). He was subject to removal or other
discipline at the hands of his superiors. These consequences are
undisputed. The defendant would add another. We must determine
whether evidence of criminality, procured by an act of trespass, is
to be rejected as incompetent for the misconduct of the trespasser.
. . ."

															"Those judgments [ Weeks v. United States and cases
which followed it] do not bind us, for they construe provisions of
the Federal Constitution, the Fourth and Fifth Amendments, not
applicable to the States. Even though not binding, they merit our
attentive scrutiny. . . ."

															"In so holding [ i.e., that evidence procured by
unlawful search is not incompetent], we are not unmindful of the
argument that, unless the evidence is excluded, the statute becomes
a form, and its protection an illusion. This has a strange sound
when the immunity is viewed in the light of its origin and history.
The rule now embodied in the statute was received into English law
as the outcome of the prosecution of Wilkes and Entick. . . .
Wilkes sued the messengers who had ransacked his papers, and
recovered a verdict of � 4,000 against one and � 1,000 against the
other. Entick, too, had a substantial verdict. . . . We do not know
whether the public, represented by its juries, is today more
indifferent to its liberties than it was when the immunity was
born. If so, the change of sentiment without more does not work a
change of remedy. Other sanctions, penal and disciplinary,
supplementing the right to damages, have already been enumerated.
No doubt the protection of the statute would be greater from the
point of view of the individual whose privacy had been invaded if
the government were required to ignore what it had learned through
the invasion. The question is whether protection for the individual
would not be gained at a disproportionate loss of protection for
society. On the one side is the social need that crime shall be
repressed. On the other, the social need that law shall not be
flouted by the insolence of office. There are dangers in any
choice. The rule of the Adams case [176 N.Y. 351, 68 N.E.
636] strikes a balance between opposing interests."

															242 N.Y. at 19, 20, 24-25, 150 N.E. at 586-87, 587, 588-89.

															| 338 U.S.
25 apptaba| APPENDIX In the case of jurisdictions which have decided more than one
case in point, the following Tables cite only the leading case. TABLE A STATES WHICH OPPOSED THE WEEKS DOCTRINE BEFORE THE WEEKS CASE HAD BEEN DECIDED ALA. Shields v. State, 104 Ala. 35, 16 So. 85.

															ARK. Starchman v. State, 62 Ark. 538, 36 S.W. 940.

															CONN. State v. Griswold, 67 Conn. 290, 34 A. 1046.

															GA. Williams v. State, 100 Ga. 511, 28 S.E. 624.

															IDAHO State v. Bond, 12 Idaho 424, 439, 86 P. 43,
47.

															ILL. Siebert v. People, 143 Ill. 571, 583, 32 N.E. 431,
434.

															KAN. State v. Miller, 63 Kan. 62, 64 P. 1033.

															ME. See State v . Gorham, 65 Me. 270, 272.

															MD. Lawrence v. State, 10.3 Id. 17,:35, 63 A.
96, 103. Page 338 U. S. 34 MASS. Commonwealth v. Dana, 2 Metc. 329.

															MICH. People v. Aldorfer, 164 Mich. 676, 130 N.W.
351.

															MINN. State v. Strait, 94 Minn. 384, 102 N.W. 913.

															MO. State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002.

															MONT. See State v. Fuller, 34 Mont. 12, 19, 85 P. 369,
373.

															NEB. Geiger v. State, 6 Neb. 545.

															N.H. State v. Flynn, 36 N.H. 64.

															N.Y. People v. Adams, 176 N.Y. 351, 68 N.E. 636.

															N.C. State v. Wallace, 162 N.C. 622, 78 S.E. l.

															OKLA. Silva v. State, 6 Okla.Cr. 97, 116 P. 199.

															ORE. State v. McDaniel, 39 Ore. 161, 169-70, 65 P. 520,
523.

															S.C. State v. Atkinson, 40 S,C. 363, 371, 18 S.E. 1021,
1024.

															S.D. State v. Madison, 23 S.D. 584, 591, 122 N.W. 647,
650.

															TENN. Cohn v. State, 120 Tenn. 61, 109 S.W. 1149.

															VT. State v. Mathers, 64 Vt. 101, 23 A. 590.

															WASH. State v. Royce, 38 Wash. 111, 80 P. 268.

															W.VA. See State v. Edwards, 51 W.Va. 220, 229, 41 S.E.
429, 432-33.

															| 338 U.S.
25 apptabb| TABLE B STATE WHICH HAD FORMULATED THE WEEKS DOCTRINE

															BEFORE THE WEEKS DECISION

															IOWA State v. Sheridan, 121 Iowa 164, 96 N.W. 730.

															| 338 U.S.
25 apptabc| TABLE C STATES WHICH HAVE PASSED ON THE WEEKS DOCTRINE SINCE THE WEEKS CASE WAS DECIDED Every state except Rhode Island. But see State v.
Lorenzo, 72 R.I. 175 48 A.2d 407 (holding that defendant had
consented to the search, but that, even if he had not, and even if
the federal rule applied, the evidence was admissible because no
timely motion to suppress had been made). Page 338 U. S. 35 | 338 U.S.
25 apptabd| TABLE D STATES WHICH PASSED ON THE WEEKS DOCTRINE FOR THE
FIRST TIME AFTER THE WEEKS DECISION, AND, IN SO DOING,
FOLLOWED IT FLA. Atz v. Andrews, 84 Fla. 43, 94 So. 329.

															IND. Flum v. State, 193 Ind. 585, 141 N.E. 353.

															KY. Youman v. Commonwealth, 189 Ky. 152, 224 S.W.
860.

															MISS. Tucker v. State, 128 Miss. 211, 90 So. 845.

															WIS. Hoyer v. State, 180 Wis. 407, 193 N.W. 89.

															WYO. State v. George, 32 Wyo 223, 231 P. 683 .

															| 338 U.S.
25 apptabe| TABLE E STATES WHICH PASSED ON THE WEEKS DOCTRINE FOR THE
FIRST TIME AFTER THE WEEKS DECISION, AND, IN SO, DOING
REJECTED IT. ARIZ. Argetakis v. State, 24 Ariz. 599, 212 P. 372.

															CALIF. People v. Mayen, 188 Calif.237, 205 P. 435
(adopting the

															general rule but distinguishing the cases then decided by

															this Court on the ground that they apply only when a

															timely motion for return of the property seized has been

															made).

															COLO. Massantonio v. People, 77 Colo. 392, 236 P.
1019.

															DEL. State v. Chuchola, 32 Del. 133, 120 A. 212
(distinguishing

															this Court's decisions).

															LA. State v. Fleckinger, 152 La. 337, 93 So. 115. The
consti-

															tutional convention of 1921 refused to adopt an amendment

															incorporating the federal rule. See State v.
Eddins, 161 La. 240, 108 So. 468.

															NEV. State v. Chin Gim, 47 Nev. 431, 224 P. 798.

															N.J. State v. Black, 5 N.J.Misc. 48, 135 A. 685.

															N.M. State v. Dillon, 34 N.M. 366, 281 P. 474.

															N.D. State v. Fahn, 53 N.D. 203, 205 N.W. 67.

															OHIO State v. Lindusay, 131 Ohio St. 166, 2 N.E.2d
490.

															PA. Commonwealth v. Dabbierio, 290 Pa. 174, 138 A.
679.

															TEX. Welchek v. State, 93 Tex.Cr.Rep. 271, 247 S.W.
524. In

															1925, a statute changed the rule by providing that "No

															evidence obtained by an officer or other person in violation

															of any provisions of the Constitution or laws of the State Page 338 U. S. 36 of Texas, or of the Constitution of the United States of

															America, shall be admitted in evidence against the accused

															on the trial of any criminal case." Texas Laws 1925, c. 49,

															as amended, 2 Vernon's Tex.Stat., 1948 (Code of Crim.Proc.),

															Art. 727a.

															UTAH State v. Aime, 62 Utah 476, 220 P. 704.

															VA. Hall v. Commonwealth, 138 Va. 727, 121 S.E.
154.

															| 338 U.S.
25 apptabf| TABLE F STATES WHICH, AFTER THE WEEKS DECISION, OVERRULED
OR DISTINGUISHED PRIOR CONTRARY DECISIONS IDAHO Idaho expressly refused to follow the Weeks decision in State v. Myers, 36 Idaho 396, 211 P. 440, but
repudiated

															the Myers case and adopted the federal rule in State v. Arregi, 44 Idaho 43, 254 P. 788.

															ILL. After two cases following the former state rule,
Illinois

															adopted the federal rule in People v. Castree, 311 Ill.
392,

															143 N.E. 112.

															MICH. People v. Marchausen, 204 Mich. 559, 171 N.W. 557
(dis-

															tinguishing earlier cases on the ground that, in them, no

															preliminary motion to suppress had been made).

															MO. State v. Graham, 295 Mo. 695, 247 S.W. 194,
supported

															the old rule in a dictum, but the federal rule was adopted
in State v. Owens, 302 Mo. 348 259 S.W. 100
(distinguishing

															earlier cases on the ground that, in them, no preliminary

															motion to dismiss had been made).

															MONT. State ex rel. King v. District Court, 70 Mont.
191, 224 P. 862.

															OKLA. Gore v. State, 24 Okla.Cr. 394, 218 P. 545.

															S.D. State v. Gooder, 57 S.D. 619, 234 N.W. 610. But cf. S.D.Laws 1935, c. 96, now S.D.Code § 34.1102 (1939),
amending

															Rev.Code 1919, § 4606 (all evidence admissible Page 338 U. S. 37 under a valid search warrant is admissible notwithstanding

															defects in the issuance of the warrant).

															TENN. Hughes v. State, 145 Tenn. 544, 238 S.W. 588
(distinguishing Cohn v. State, supra, 338 U.S.
25 apptaba|>Table A).

															WASH. State v. Gibbons, 118 Wash. 171, 203 P. 390.

															W.VA. State v. Andrews, 91 W.Va. 720 114 S.E. 257
(distinguish-

															ing earlier cases).

															| 338 U.S.
25 apptabg| TABLE G STATES WHICH, AFTER THE WEEKS DECISION, REVIEWED
PRIOR CONTRARY DECISIONS, AND, IN SO DOING, ADHERED TO THOSE
DECISIONS. ALA. Banks v. State, 207 Ala. 179, 93 So. 293.

															ARK. Benson v. State, 149 Ark. 633, 233 S.W. 758.

															CONN. State v. Reynolds, 101 Conn. 224, 125 A. 636.

															GA. Jackson v. State, 156 Ga. 647, 1 19 S.E. 525.

															KAN. State v. Johnson, 116 Kan. 58, 226 P. 245.

															ME. State v. Schoppe, 113 Me. 10, 16, 92 A. 867, 869
(alterna-

															tive holding, not noticing Weeks ).

															MD. Meisinger v. State, 155 Md.195, 141 A. 536, 142 A.
190. But cf. Md.Laws 1929, c.194, as amended, Md.Code Ann., Art.
35,

															§ 5 (1947 Supp.) (in trial of misdemeanors, evidence
obtained

															by illegal search and seizure is inadmissible).

															MASS. Commonwealth v. Wilkins, 243 Mass. 356, 138 N.E.
11.

															MINN. State v. Pluth, 157 Minn. 145, 195 N.W. 789.

															NEB. Billings v. State, 109 Neb. 596, 191 N.W. 721.

															N.H. State v. Agalos, 79 N.H. 241, 242, 107 A. 314, 315
(not

															noticing Weeks ).

															N.Y. People v. Defore, 242 N.Y. 13, 150 N.E. 585; People v. Richter's Jewelers, 291 N.Y. 161, 169, 51 N.E.2d
690,

															693 (holding that adoption of Amendment to State Con- Page 338 U. S. 38 stitution in same language as Civil Rights Law construed

															in the Defore case is not occasion for changing
interpre-

															tation, especially since proceedings of the convention

															which framed the amendment show that no change was

															intended).

															N.C. State v. Simmons, 183 N.C. 684, 110 S.E. 591
(distinguish-

															ing between evidentiary articles and corpus
delicti ).

															ORE. See State v. Folkes, 174 Ore. 568, 588-89, 150
P.2d 17, 25. But see State v. Laundy, 103 Ore. 443, 493-95, 204
P.

															958, 974-75.

															S.C. After granting a motion to return illegally seized
property

															in Blacksburg v. Beam, 104 S.C. 146, 88 S.E. 441,
South

															Carolina reaffirmed its agreement with the general rule in State v. Green, 121 S.C. 230, 114 S.E. 317.

															VT. State v. Stacy, 104 Vt. 379, 401, 160 A. 257,
266.

															| 338 U.S.
25 apptabh| TABLE H STATE WHICH HAS REPUDIATED ITS PRIOR FORMULATION OF THE WEEKS DOCTRINE IOWA State v. Rowley, 197 Iowa 977, 195 N.W. 881
(withdrawing

															earlier opinion in 187 N.W. 7).

															| 338 U.S.
25 apptabi| TABLE I SUMMARY OF PRESENT POSITION OF STATES WHICH HAVE PASSED ON THE WEEKS DOCTRINE (a) States that reject Weeks: Ala. Ariz. Ark., Calif., Colo. Conn. Del., Ga. Iowa, Kan. La.
Me., Md. Mass. Minn., Neb., Nev., N.H. N.J. N.M., N.Y. N.C. N.D.,
Ohio, Ore. Pa. S.C. Texas, Utah, Vt., Va.

															(b) States that are in agreement with Weeks: Fla., Idaho, Ill., Ind. Ky., Mich. Miss., Mo. Mont., Okla., S.D.
Tenn. Wash., W.Va. Wis., Wyo. Page 338 U. S. 39 | 338 U.S.
25 apptabj| TABLE J JURISDICTIONS OF THE UNITED KINGDOM AND THE BRITISH
COMMONWEALTH OF NATIONS WHICH HAVE HELD ADMISSIBLE EVIDENCE OBTAINED
BY I LLEGAL SEARCH AND SEIZURE

															AUSTRALIA Miller v. Noblet, [1927] S.A.S.R. 385.

															CANADA

															ALTA. Rex v. Nelson, [1922] 2 W.W.R. 381, 69 D.L.R.
180.

															MAN. Rec v. Duroussel, 41 Man. 15, [1933] 2 D.L.R.
446.

															ONT. Regina v. Doyle, 12 Ont. 347.

															SASK. Rex v. Kostachuk, 24 Sask. 485, 54 Can. C.C.
189.

															ENGLAND See Elias v. Pasmore, [1934] 2 K.B. 164.

															INDIA

															ALL. Ali Ahmad Khan v. Emperor, 81 I.C. 615(1).

															CAL. Baldeo Bin v. Emperor, 142 I.C. 639.

															RANG. Chwa Hum Htive v. Emperor, 143 I.C. 824.

															SCOTLAND See Hodgson v. Macpherson, [1913] S.C.(J.) 68,
73.

															MR. JUSTICE BLACK, concurring.

															In this case, petitioner was convicted of a crime in a state
court on evidence obtained by a search and seizure conducted in a
manner that this Court has held "unreasonable," and therefore in
violation of the Fourth Amendment. And under a rule of evidence
adopted by this Court, evidence so obtained by federal officers
cannot be used against defendants in federal courts. For reasons
stated in my dissenting opinion in Adamson v. California, 332 U. S. 46 , 332 U. S. 68 , I
agree with the conclusion of the Court that the Fourth Amendment's
prohibition of "unreasonable searches and seizures" is enforceable
against the states. Consequently, I should be for reversal of this
case if I thought the Fourth Amendment not only prohibited
"unreasonable searches and seizures,", but also, of itself, barred
the use of evidence so unlawfully obtained. But I agree with what
appears to be a plain implication of the Court's opinion that the
federal exclusionary rule is Page 338 U. S. 40 not a command of the Fourth Amendment, but is a judicially
created rule of evidence which Congress might negate. See
McNabb v. United States, 318 U. S. 332 .
This leads me to concur in the Court's judgment of affirmance.

															It is not amiss to repeat my belief that the Fourteenth
Amendment was intended to make the Fourth Amendment in its entirety
applicable to the states. The Fourth Amendment was designed to
protect people against unrestrained searches and seizures by
sheriffs, policemen and other law enforcement officers. Such
protection is an essential in a free society. And I am unable to
agree that the protection of people from over-zealous or ruthless
state officers is any less essential in a country of "ordered
liberty" than is the protection of people from over-zealous or
ruthless federal officers. Certainly there are far more state than
federal enforcement officers and their activities, up to now, have
more frequently and closely touched the intimate daily lives of
people than have the activities of federal officers. A state
officer's "knock at the door . . . as a prelude to a search,
without authority of law," may be, as our experience shows, just as
ominous to "ordered liberty" as though the knock were made by a
federal officer.

															MR. JUSTICE DOUGLAS, dissenting.

															I believe, for the reasons stated by MR. JUSTICE BLACK in his
dissent in Adamson v. California, 332 U. S.
46 , 332 U. S. 68 ,
that the Fourth Amendment is applicable to the States. I agree with
MR. JUSTICE MURPHY that the evidence obtained in violation of it
must be excluded in state prosecutions as well as in federal
prosecutions, since, in absence of that rule of evidence, the
Amendment would have no effective sanction. I also agree with him
that, under that Page 338 U. S. 41 test, this evidence was improperly admitted, and that the
judgments of conviction must be reversed.

															MR. JUSTICE MURPHY, with whom MR. JUSTICE RUTLEDGE joins,
dissenting.

															It is disheartening to find so much that is right in an opinion
which seems to me so fundamentally wrong. Of course, I agree with
the Court that the Fourteenth Amendment prohibits activities which
are proscribed by the search and seizure clause of the Fourth
Amendment. See my dissenting views, and those of MR.
JUSTICE BLACK, in Adamson v. California, 332 U. S.
46 , 332 U. S. 68 ,
123. Quite apart from the blanket application of the Bill of Rights
to the States, a devotee of democracy would ill-suit his name were
he to suggest that his home's protection against unlicensed
governmental invasion was not "of the very essence of a scheme of
ordered liberty." Palko v. Connecticut, 302 U.
S. 319 , 302 U. S. 325 .
It is difficult for me to understand how the Court can go this far
and yet be unwilling to make the step which can give some meaning
to the pronouncements it utters.

															Imagination and zeal may invent a dozen methods to give content
to the commands of the Fourth Amendment. But this Court is limited
to the remedies currently available. It cannot legislate the ideal
system. If we would attempt the enforcement of the search and
seizure clause in the ordinary case today, we are limited to three
devices: judicial exclusion of the illegally obtained evidence;
criminal prosecution of violators, and civil action against
violators in the action of trespass.

															Alternatives are deceptive. Their very statement conveys the
impression that one possibility is as effective as the next. In
this case, their statement is blinding. For there is but one
alternative to the rule of exclusion. That is no sanction at
all. Page 338 U. S. 42 This has been perfectly clear since 1914, when a unanimous Court
decided Weeks v. United States, 232 U.
S. 383 , 232 U. S. 393 .
"If letters and private documents can thus be seized and held and
used in evidence against a citizen accused of an offense," we
said,

															"the protection of the Fourth Amendment declaring his right to
be secure against such searches and seizures is of no value, and,
so far as those thus placed are concerned, might as well be
stricken from the Constitution."

															"It reduces the Fourth Amendment to a form of words." Holmes,
J., for the Court, in Silverthorne Lumber Co. v. United
States, 251 U. S. 385 , 251 U. S.
392 .

															Today, the Court wipes those statements from the books with its
bland citation of "other remedies." Little need be said concerning
the possibilities of criminal prosecution. Self-scrutiny is a lofty
ideal, but its exaltation reaches new heights if we expect a
District Attorney to prosecute himself or his associates for well
meaning violations of the search and seizure clause during a raid
the District Attorney or his associates have ordered. [ Footnote 2/1 ] But there is an appealing
ring in another alternative. A trespass action for damages is a
venerable means of securing reparation for unauthorized invasion of
the home. Why not put the old writ to a new use? When the Court
cites cases permitting the action, the remedy seems complete.

															But what an illusory remedy this is if, by "remedy," we mean a
positive deterrent to police and prosecutors Page 338 U. S. 43 tempted to violate the Fourth Amendment. The appealing ring
softens when we recall that, in a trespass action, the measure of
damages is simply the extent of the injury to physical property. If
the officer searches with care, he can avoid all but nominal
damages -- a penny, or a dollar. Are punitive damages possible?
Perhaps. But a few states permit none, whatever the circumstances.
[ Footnote 2/2 ] In those that do,
the plaintiff must show the real ill will or malice of the
defendant, [ Footnote 2/3 ] and
surely it is not unreasonable to assume that one in honest pursuit
of crime bears no malice toward the search victim. If that burden
is carried, recovery may yet be defeated by the rule that there
must be physical damages before punitive damages may be awarded.
[ Footnote 2/4 ] In addition, some
states limit punitive damages to the actual expenses of litigation. See 61 Harv.L.Rev. 113, 119-120. Others demand some
arbitrary ratio between actual and punitive damages before a
verdict may stand. See Morris, Punitive Damages in Tort
Cases, 44 Harv.L.Rev. 1173, 1180-1181. Even assuming the ill will
of the officer, his reasonable grounds for belief that the home he
searched harbored evidence of crime is admissible in mitigation of
punitive damages. Gamble v. Keyes, 35 S.D. 644, 153 N.W.
888; Simpson v. McCaffrey, 13 Ohio 508. The bad reputation
of the plaintiff is likewise admissible. Banfill v. Byrd, 122 Miss. 288, 84 So. 227. If the evidence seized was actually used
at a trial, that fact has been Page 338 U. S. 44 held a complete justification of the search, and a defense
against the trespass action. Elias v. Pasmore [1934] 2
K.B. 164. And even if the plaintiff hurdles all these obstacles and
gains a substantial verdict, the individual officer's finances may
well make the judgment useless -- for the municipality, of course,
is not liable without its consent. Is it surprising that there is
so little in the books concerning trespass actions for violation of
the search and seizure clause?

															The conclusion is inescapable that but one remedy exists to
deter violations of the search and seizure clause. That is the rule
which excludes illegally obtained evidence. Only by exclusion can
we impress upon the zealous prosecutor that violation of the
Constitution will do him no good. And only when that point is
driven home can the prosecutor be expected to emphasize the
importance of observing constitutional demands in his instructions
to the police.

															If proof of the efficacy of the federal rule were needed, there
is testimony in abundance in the recruit training programs and in
service courses provided the police in states which follow the
federal rule. [ Footnote 2/5 ] St.
Louis, for example, demands extensive training in the rules of
search and seizure, with emphasis upon the ease with which a case
may collapse if it depends upon evidence obtained Page 338 U. S. 45 unlawfully. Current court decisions are digested and read at
roll calls. The same general pattern prevails in Washington, D.C.
[ Footnote 2/6 ] In Dallas, officers
are thoroughly briefed and instructed that "the courts will follow
the rules very closely, and will detect any frauds." [ Footnote 2/7 ] In Milwaukee, a stout volume
on the law of arrest and search and seizure is made the basis of
extended instruction. [ Footnote
2/8 ] Officer preparation in the applicable rules in Jackson,
Mississippi, has included the lectures of an Associate Justice of
the Mississippi Supreme Court. The instructions on evidence and
search and seizure given to trainees in San Antonio carefully note
the rule of exclusion in Texas, and close with this statement:

															"Every police officer should know the laws and the rules of
evidence. Upon knowledge of these facts determines whether the . .
. defendant will be convicted or acquitted. . . . When you
investigate a case . . . , remember throughout your investigation
that only admissible evidence can be used."

															But in New York City, we are informed simply that "copies of the
State Penal Law and Code of Criminal Procedure" are given to
officers, and that they are "kept advised" that illegally obtained
evidence may be admitted in New York courts. In Baltimore, a
"Digest of Laws" is distributed, and it is made clear that the Page 338 U. S. 46 statutory section excluding evidence

															"is limited in its application to the trial of misdemeanors. . .
. It would appear . . . that . . . evidence illegally obtained may
still be admissible in the trial of felonies."

															In Cleveland, recruits and other officers are told of the rules
of search and seizure, but

															"instructed that it is admissible in the courts of Ohio. The
Ohio Supreme Court has indicated very definitely and clearly that
Ohio belongs to the 'admissionist' group of states when evidence
obtained by an illegal search is presented to the court."

															A similar pattern emerges in Birmingham, Alabama.

															The contrast between states with the federal rule and those
without it is thus a positive demonstration of its efficacy. There
are apparent exceptions to the contrast -- Denver, for example,
appears to provide as comprehensive a series of instructions as
that in Chicago, although Colorado permits introduction of the
evidence, and Illinois does not. And, so far as we can determine
from letters, a fairly uniform standard of officer instruction
appears in other cities, irrespective of the local rule of
evidence. But the examples cited above serve to ground an
assumption that has motivated this Court since the Weeks case: that this is an area in which judicial action has positive
effect upon the breach of law, and that, without judicial action,
there are simply no effective sanctions presently available.

															I cannot believe that we should decide due process questions by
simply taking a poll of the rules in various jurisdictions, even if
we follow the Palko "test." Today's decision will do
inestimable harm to the cause of fair police methods in our cities
and states. Even more important, perhaps, it must have tragic
effect upon public respect for our judiciary. For the Court now
allows what is indeed shabby business: lawlessness by officers of
the law. Page 338 U. S. 47 Since the evidence admitted was secured in violation of the
Fourth Amendment, the judgment should be reversed.

															[ Footnote 2/1 ] See Pound, Criminal Justice in America (New York,
1930):

															"Under our legal system, the way of the prosecutor is hard, and
the need of 'getting results' puts pressure upon prosecutors to . .
. indulge in that lawless enforcement of law which produces a
vicious circle of disrespect for law."

															P. 186.

															And note the statement of the Wickersham Commission, with
reference to arrests: ". . . in case of persons of no influence or
little or no means, the legal restrictions are not likely to give
an officer serious trouble." II National Commission on Law
Observance and Enforcement, Report on Criminal Procedure (1931), p.
19.

															[ Footnote 2/2 ] See McCormick, Damages, § 78. See Willis, Measure of Damages When Property is Wrongfully Taken by a
Private Individual, 22 Harv.L.Rev. 419.

															[ Footnote 2/3 ] Id., § 79. See Fennemore v. Armstrong, 29 Del.
35, 96 A. 204.

															[ Footnote 2/4 ]

															"It is a well settled and almost universally accepted rule in
the law of damages that a finding of exemplary damages must be
predicated upon a finding of actual damages."

															17 Iowa L.Rev. 413, 414. This appears to be in overstatement. See McCormick, supra, § 83; Restatement IV,
Torts, § 908, comment c. [ Footnote 2/5 ]

															The material which follows is gleaned from letters and other
material from Commissioners of Police and Chiefs of Police in
twenty-six cities. Thirty-eight large cities in the United States
were selected at random, and inquiries directed concerning the
instructions provided police on the rules of search and seizure.
Twenty-six replies have been received to date. Those of any
significance are mentioned in the text of this opinion. The sample
is believed to be representative, but it cannot, of course,
substitute for a thoroughgoing comparison of present-day police
procedures by a completely objective observer. A study of this kind
would be of inestimable value.

															[ Footnote 2/6 ] E.g., Assistant Superintendent Truscott's letter to the
Washington Police Force of January 3, 1949, concerning McDonald
v. United States, 335 U. S. 451 .

															[ Footnote 2/7 ]

															Recently, lectures have included two pages of discussion of the
opinions in Harris v. United States, 331 U.
S. 145 .

															[ Footnote 2/8 ]

															Chief of Police John W. Polcyn notes, in a Foreword to the book,
that officers were often not properly informed with respect to
searches and seizures before thoroughgoing instruction was
undertaken. One of their fears was that of

															"losing their cases in court only because they neglected to do
what they might have done with full legal sanction at the time of
the arrest, or did what they had no legal right to do at such
time."

															MR. JUSTICE RUTLEDGE, dissenting.

															"Wisdom too often never comes, and so one ought not to reject it
merely because it comes late." Similarly, one should not reject a
piecemeal wisdom, merely because it hobbles toward the truth with
backward glances. Accordingly, although I think that all "the
specific guarantees of the Bill of Rights should be carried over
intact into the first section of the Fourteenth Amendment," Adamson v. California, 332 U. S. 46 ,
dissenting opinion at 332 U. S. 124 ,
I welcome the fact that the Court, in its slower progress toward
this goal, today finds the substance of the Fourth Amendment "to be
implicit in the concept of ordered liberty, and thus, through the
Fourteenth Amendment, . . . valid as against the states." Palko
v. Connecticut, 302 U. S. 319 , 302 U. S.
325 .

															But I reject the Court's simultaneous conclusion that the
mandate embodied in the Fourth Amendment, although binding on the
states, does not carry with it the one sanction -- exclusion of
evidence taken in violation of the Amendment's terms -- failure to
observe which means that "the protection of the Fourth Amendment .
. . might as well be stricken from the Constitution." Weeks v.
United States, 232 U. S. 383 , 232 U. S. 393 .
For I agree with my brother MURPHY's demonstration that the
Amendment without the sanction is a dead letter. Twenty-nine years
ago, this Court, speaking through Justice Holmes, refused to permit
the Government to subpoena documentary evidence which it had
stolen, copied and then returned, for the reason that such a
procedure "reduces the Fourth Amendment to a form of words." Silverthorne Lumber Co. v. United States, 251 U.
S. 385 , 251 U. S. 392 .
But the version of the Fourth Amendment today held Page 338 U. S. 48 applicable to the states hardly rises to the dignity of a form
of words; at best, it is a pale and frayed carbon copy of the
original, bearing little resemblance to the Amendment the
fulfillment of whose command I had heretofore thought to be "an
indispensable need for a democratic society." Harris v. United
States, 331 U. S. 145 ,
dissenting opinion at 331 U. S.
161 .

															I also reject any intimation that Congress could validly enact
legislation permitting the introduction in federal courts of
evidence seized in violation of the Fourth Amendment. I had thought
that issue settled by this Court's invalidation on dual grounds, in Boyd v. United States, 116 U. S. 616 , of
a federal statute which, in effect ,required the production of
evidence thought probative by Government counsel -- the Court there
holding the statute to be "obnoxious to the prohibition of the
Fourth Amendment of the Constitution, as well as of the Fifth." Id. at 116 U. S. 632 . See Adams v. New York, 192 U. S. 585 , 192 U. S. 597 , 192 U. S. 598 .
The view that the Fourth Amendment itself forbids the introduction
of evidence illegally obtained in federal prosecutions is one of
long standing and firmly established. See Olmstead v. United
States, 277 U. S. 438 , 277 U. S. 462 .
It is too late, in my judgment, to question it now. We apply it
today in Lustig v. United States, post, p. 338 U. S. 74 .

															As Congress and this Court are, in my judgment, powerless to
permit the admission in federal courts of evidence seized in
defiance of the Fourth Amendment, so I think state legislators and
judges -- if subject to the Amendment, as I believe them to be --
may not lend their offices to the admission in state courts of
evidence thus seized. Compliance with the Bill of Rights betokens
more than lip service.

															The Court makes the illegality of this search and seizure its
inarticulate premise of decision. I acquiesce in that premise, and
think the convictions should be reversed.

															MR. JUSTICE MURPHY joins in this opinion.

Summary: In *Wolf v. Colorado*, the U.S. Supreme Court ruled that the Fourteenth Amendment's Due Process Clause prohibits arbitrary police intrusion into privacy, but it does not require state courts to exclude evidence obtained through unreasonable searches and seizures in state criminal prosecutions. The Court rejected the idea that the Fourteenth Amendment incorporates the specific limitations of the Bill of Rights onto state criminal justice systems. The Court's decision affirmed the state court's conviction, allowing the admission of evidence obtained through an unreasonable search and seizure.


U.S. Supreme Court Burdeau v. McDowell, 256
U.S. 465 (1921) Burdeau v. McDowell No. 66 Argued April 11, 12,
1921 Decided June 1, 1921 256
U.S. 465 APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE WESTERN DISTRICT OF
PENNSYLVANIA Syllabus 1. The United States may retain for use as evidence in the
criminal prosecution of their owner incriminating documents which
are turned over to it by private individuals who procured them,
without the participation or knowledge of any government official,
through a wrongful search of the owner's private desk and papers in
an office. P. 256 U. S.
474 .

															2. The provision of the Fourth Amendment forbidding unreasonable
searches and seizures refers to governmental action; the Fifth
Amendment secures the citizen from compulsory testimony against
himself by protecting him from extorted confessions and
examinations in court proceedings by compulsory methods. P. 256 U. S.
475 .

															Reversed.

															Appeal from an order of the district court requiring that
certain books and papers be impounded with the clerk and ultimately
returned to the appellee, and enjoining officers of the Department
of Justice from using them, or evidence derived through them, in
criminal proceedings against him. The facts are stated in the
opinion, post 470. Page 256 U. S. 470 MR. JUSTICE DAY delivered the opinion of the Court.

															J. C. McDowell, hereinafter called the petitioner, filed a
petition in the United States District Court for the Western
District of Pennsylvania asking for an order for the return to him
of certain books, papers, memoranda, correspondence and other data
in the possession of Joseph A. Burdeau, appellant herein, Special
Assistant to the Attorney General of the United States.

															In the petition, it is stated that Burdeau and his associates
intended to present to the grand jury in and for the Western
District of Pennsylvania a charge against petitioner of an alleged
violation of § 215 of the Criminal Code of the United States for
the fraudulent use of the mails; that it was the intention of
Burdeau and his associates, including certain post office
inspectors cooperating with him, to present to the grand jury
certain private books, papers, memoranda, etc., which were the
private property of the petitioner; that the papers had been in the
possession and exclusive control of the petitioner in the Farmers'
Bank Building in Pittsburgh. It is alleged that, during the spring
and summer of 1920, these papers were unlawfully seized and stolen
from petitioner by certain persons participating in and furthering
the proposed investigation so to be made by the grand jury, under
the direction and control of Burdeau as special assistant to the
Attorney General, and that such books, papers, memoranda, etc.,
were being held in the possession and control of Burdeau and his
assistants; that, in the taking of the personal private books and
papers, the person who purloined and stole the same drilled the
petitioner's private safes, broke the locks upon his private Page 256 U. S. 471 desk, and broke into and abstracted from the files in his
offices his private papers; that the possession of the books,
papers, etc., by Burdeau and his assistants was unlawful and in
violation of the legal and constitutional rights of the petitioner.
It is charged that the presentation to the grand jury of the same,
or any secondary or other evidence secured through or by them,
would work a deprivation of petitioner's constitutional rights
secured to him by the Fourth and Fifth Amendments to the
Constitution of the United States.

															An answer was filed claiming the right to hold and use the
papers. A hearing was had before the district judge, who made an
order requiring the delivery of the papers to the clerk of the
court, together with all copies, memoranda and data taken
therefrom, which the court found had been stolen from the offices
of the petitioner at rooms numbered 1320 and 1321 in the Farmers'
Bank Building in the City of Pittsburgh. The order further provided
that, upon delivery of the books, papers, etc., to the clerk of the
court, the same should be sealed and impounded for the period of
ten days, at the end of which period they should be delivered to
the petitioner or his attorney unless an appeal were taken from the
order of the court, in which event the books, papers, etc., should
be impounded until the determination of the appeal. An order was
made restraining Burdeau, Special Assistant Attorney General, the
Department of Justice, its officers and agents, and the United
States Attorney from presenting to the United States commissioner,
the grand jury or any official tribunal, any of the books, papers,
memoranda, letters, copies of letters correspondence, etc., or any
evidence of any nature whatsoever secured by or coming into their
possession as a result of the knowledge obtained from the
inspection of such books, papers, memoranda, etc.,

															In his opinion, the district judge stated that it was the Page 256 U. S. 472 intention of the Department of Justice, through Burdeau and his
assistants, to present the books, papers, etc., to the grand jury
with a view to having the petitioner indicted for the alleged
violation of § 215 of the Criminal Code of the United States, and
the court held that the evidence offered by the petitioner showed
that the papers had been stolen from him, and that he was entitled
to the return of the same. In this connection, the district judge
stated that it did not appear that Burdeau, or any official or
agent of the United States, or any of the departments, had anything
to do with the search of the petitioner's safe, files, and desk or
the abstraction therefrom of any of the writings referred to in the
petition, and added that

															"the order made in this case is not made because of any unlawful
act on the part of anybody representing the United States or any of
its departments, but solely upon the ground that the government
should not use stolen property for any purpose after demand made
for its return."

															Expressing his views at the close of the testimony, the Judge
said that there had been a gross violation of the Fourth and Fifth
Amendments to the federal Constitution; that the government had not
been a party to any illegal seizure; that those amendments, in the
understanding of the court, were passed for the benefit of the
states against action by the United States, forbidden by those
amendments, and that the court was satisfied that the papers were
illegally and wrongfully taken from the possession of the
petitioner, and were then in the hands of the government.

															So far as is necessary for our consideration, certain facts from
the record may be stated. Henry L. Doherty & Co. of New York
were operating managers of the Cities Service Company, which
company is a holding company, having control of various oil and gas
companies. Petitioner was a director in the Cities Service
Company Page 256 U. S. 473 and a director in the Quapaw Gas Company, a subsidiary company
and occupied an office room in the building owned by the Farmers'
Bank of Pittsburgh. The rooms were leased by the Quapaw Gas
Company. McDowell occupied one room for his private office. He was
employed by Doherty & Co. as the head of the natural gas
division of the Cities Service Company. Doherty & Co.
discharged McDowell for alleged unlawful and fraudulent conduct in
the course of the business. An officer of Doherty & Co. and the
Cities Service Company went to Pittsburgh in March, 1920, with
authority of the president of the Quapaw Gas Company to take
possession of the company's office. He took possession of room
1320; that room and the adjoining room had McDowell's name on the
door. At various times, papers were taken from the safe and desk in
the rooms, and the rooms were placed in charge of detectives. A
large quantity of papers were taken and shipped to the auditor of
the Cities Service Company at 60 Wall Street, New York, which was
the office of that company, Doherty & Co., and the Quapaw Gas
Company. The secretary of McDowell testified that room 1320 was his
private office; that practically all the furniture in both rooms
belonged to him; that there was a large safe belonging to the
Farmers' Bank and a small safe belonging to McDowell; that, on
March 23, 1920, a representative of the company and a detective
came to the offices; that the detective was placed in charge of
room 1320; that the large safe was opened with a view to selecting
papers belonging to the company, and that the representative of the
company took private papers of McDowell's also. While the rooms
were in charge of detectives, both safes were blown open. In the
small safe nothing of consequence was found, but in the large safe
papers belonging to McDowell were found. The desk was forced open,
and all the papers taken from it. Page 256 U. S. 474 The papers were placed in cases and shipped to Doherty &
Co., 60 Wall Street, New York.

															In June, 1920, following, Doherty & Co., after communication
with the Department of Justice, turned over a letter, found in
McDowell's desk, to the department's representative. Burdeau
admitted at the hearing that, as the representative of the United
States in the Department of Justice, he had papers which he assumed
were taken from the office of McDowell. The communication to the
Attorney General stated that McDowell had violated the laws of the
United States in the use of the mail in the transmission of various
letters to parties who owned the properties which were sold by or
offered to the Cities Service Company; that some of such letters,
or copies of them taken from McDowell's file, were in the
possession of the Cities Service Company, that the Company also had
in its possession portions of a diary of McDowell in which he had
jotted down the commissions which he had received from a number of
the transactions and other data which, it is stated, would be
useful in the investigation of the matter before the grand jury and
subsequent prosecution should an indictment be returned.

															We do not question the authority of the court to control the
disposition of the papers, and come directly to the contention that
the constitutional rights of the petitioner were violated by their
seizure, and that, having subsequently come into the possession of
the prosecuting officers of the government, he was entitled to
their return. The amendments involved are the Fourth and Fifth,
protecting a citizen against unreasonable searches and seizures and
compulsory testimony against himself. An extended consideration of
the origin and purposes of these amendments would be superfluous in
view of the fact that this Court has had occasion to deal with
those subjects in a series of cases. Boyd v. United
States, 116 U. S. 616 ; Adams v. New York, 192 U. S. 585 ; Weeks v. Page 256 U. S. 475 United States, 232 U. S. 383 ; Johnson v. United States, 228 U.
S. 457 ; Perlman v. United States, 247 U. S.
7 ; Silverthorne Lumber Co. v. United States, 251 U. S. 385 ; Gouled v. United States, 255 U. S. 298 .

															The Fourth Amendment gives protection against unlawful searches
and seizures, and, as shown in the previous cases, its protection
applies to governmental action. Its origin and history clearly show
that it was intended as a restraint upon the activities of
sovereign authority, and was not intended to be a limitation upon
other than governmental agencies; as against such authority, it was
the purpose of the Fourth Amendment to secure the citizen in the
right of unmolested occupation of his dwelling and the possession
of his property, subject to the right of seizure by process duly
issued.

															In the present case, the record clearly shows that no official
of the federal government had anything to do with the wrongful
seizure of the petitioner's property or any knowledge thereof until
several months after the property had been taken from him and was
in the possession of the Cities Service Company. It is manifest
that there was no invasion of the security afforded by the Fourth
Amendment against unreasonable search and seizure, as whatever
wrong was done was the act of individuals in taking the property of
another. A portion of the property so taken and held was turned
over to the prosecuting officers of the federal government. We
assume that petitioner has an unquestionable right of redress
against those who illegally and wrongfully took his private
property under the circumstances herein disclosed, but with such
remedies we are not now concerned.

															The Fifth Amendment, as its terms import, is intended to secure
the citizen from compulsory testimony against himself. It protects
from extorted confessions, or examinations in court proceedings by
compulsory methods.

															The exact question to be decided here is: may the Page 256 U. S. 476 government retain incriminating papers coming to it in the
manner described with a view to their use in a subsequent
investigation by a grand jury where such papers will be part of the
evidence against the accused, and may be used against him upon
trial should an indictment be returned?

															We know of no constitutional principle which requires the
government to surrender the papers under such circumstances. Had it
learned that such incriminatory papers, tending to show a violation
of federal law, were in the hands of a person other than the
accused, it having had no part in wrongfully obtaining them, we
know of no reason why a subpoena might not issue for the production
of the papers as evidence. Such production would require no
unreasonable search or seizure, nor would it amount to compelling
the accused to testify against himself.

															The papers having come into the possession of the government
without a violation of petitioner's rights by governmental
authority, we see no reason why the fact that individuals,
unconnected with the government, may have wrongfully taken them
should prevent them from being held for use in prosecuting an
offense where the documents are of an incriminatory character.

															It follows that the district court erred in making the order
appealed from, and the same is Reversed. MR. JUSTICE BRANDEIS dissenting with whom MR. JUSTICE HOLMES
concurs.

															Plaintiff's private papers were stolen. The thief, to further
his own ends, delivered them to the law officer of the United
States. He, knowing them to have been stolen, retains them for use
against the plaintiff. Should the court permit him to do so? Page 256 U. S. 477 That the court would restore the papers to plaintiff if they
were still in the thief's possession is not questioned. That it has
power to control the disposition of these stolen papers, although
they have passed into the possession of the law officer, is also
not questioned. But it is said that no provision of the
Constitution requires their surrender, and that the papers could
have been subpoenaed. This may be true. Still I cannot believe that
action of a public official is necessarily lawful because it does
not violate constitutional prohibitions and because the same result
might have been attained by other and proper means. At the
foundation of our civil liberty lies the principle which denies to
government officials an exceptional position before the law and
which subjects them to the same rules of conduct that are commands
to the citizen. And, in the development of our liberty, insistence
upon procedural regularity has been large factor. Respect for law
will not be advanced by resort, in its enforcement, to means which
shock the common man's sense of decency and fair play.

Summary: In Burdeau v. McDowell, the Supreme Court ruled that the government may retain and use incriminating documents obtained from private individuals, even if those individuals obtained the documents through an illegal search, as long as government officials were not involved in the initial search or seizure. The Court distinguished between the Fourth Amendment, which protects against unreasonable searches and seizures by the government, and the Fifth Amendment, which protects against self-incrimination. In this case, the Court found that the government's possession and use of the documents did not violate the petitioner's constitutional rights, and therefore, the government could retain and use them in a criminal prosecution.