582 FRANKFURTER, J., dissenting. Brandeis, J., in Olmstead v. United States, 277 U. S. 438, 471, at 474. The Amendment has not been read in a niggardly spirit or with the outlook of a narrow-minded lawyer. Since the opinion in this case seems to me out of line with our prior decisions, it becomes important to recall how this Court has heretofore viewed the Fourth Amendment and what has actually been decided. I shall draw on a summary of the Court's decisions by Mr. Justice Brandeis: "Time and again, this Court in giving effect to the principle underlying the Fourth Amendment, has refused to place an unduly literal construction upon it. This was notably illustrated in the Boyd case itself. Taking language in its ordinary meaning, there is no 'search' or 'seizure' when a defendant is required to produce a document in the orderly process of a court's procedure. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,' would not be violated, under any ordinary construction of language, by compelling obedience to a subpoena. But this Court holds the evidence inadmissible simply because the information leading to the issue of the subpoena has been unlawfully secured. Silverthorne Lumber Co. v. United States, 251 U. S. 385. Literally, there is no 'search' or 'seizure' when a friendly visitor abstracts papers from an office; yet we held in Gouled v. United States, 255 U. S. 298, that evidence so obtained could not be used. No court which looked at the words of the Amendment rather than at its underlying purpose would hold, as this Court did in Ex parte Jackson, 96 U. S. 727, 733, that its protection extended to letters in the mails. The provision against self-incrimination in the Fifth Amendment has been given an equally broad construction. FRANKFURTER, J., dissenting. 328 U.S. The language is: 'No person . . . shall be compelled in any criminal case to be a witness against himself.' Yet we have held, not only that the protection of the Amendment extends to a witness before a grand jury, although he has not been charged with crime, Counselman v. Hitchcock, 142 U. S. 547, 562, 586, but that: 'It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant.' McCarthy v. Arndstein, 266 U. S. 34, 40. The narrow language of the Amendment has been consistently construed in the light of its object, 'to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard.' Counselman v. Hitchcock, supra, p. 562. "Decisions of this Court applying the principle of the Boyd case have settled these things. Unjustified search and seizure violates the Fourth Amendment, whatever the character of the paper; whether the paper when taken by the federal officers was in the home, in an office or elsewhere; whether the taking was effected by force, by fraud, or in the orderly process of a court's procedure. From these decisions, it follows necessarily that the Amendment is violated by the officer's reading the paper without a physical seizure, without his even touching it; and that use, in any criminal proceeding, of the contents of the papers so examined-as where they are testified to by a federal officer who thus saw the document or where, through knowledge so obtained, a copy has been procured elsewhere-any such use constitutes 582 FRANKFURTER, J., dissenting. a violation of the Fifth Amendment." Olmstead v. United States, 277 U. S. 438, 471, at 476-478. And so we are finally brought to the question whether the seizure of documents which could not possibly have been justified as the result of a search under a warrant, since no such warrant could have been authorized by law, can be justified as a search and seizure without a warrant. Such justification must have some historic foundation, otherwise it is clearly out of the bounds of the Fourth Amendment. The court below evidently struggled in reaching its conclusion because of some decisions here which it naturally found "not entirely harmonious." Its chief reliance was language in Marron v. United States, 275 U. S. 192. A short answer would be that the sting of the Marron case was taken by two later cases. Go-Bart Co. v. United States, 282 U. S. 344, 358, and United States v. Lefkowitz, 285 U. S. 452, 465. But a closer analysis is called for. One would expect a hard-headed system like the common law to recognize exceptions even to the most comprehensive principle for safeguarding liberty. This is true of the prohibition of all searches and seizures as unreasonable unless authorized by a judicial warrant appropriately supported. Such is the exception, historically well recognized, of the right to seize without warrant goods and papers on ships or other moving vehicles. Another exception is the right of searching the person upon arrest. Whether that right is a surviving incident of the historic role of the "hue and cry" in early Anglo-Saxon law, see People v. Chiagles, 237 N. Y. 193, 196, 142 N. E. 583, or is based on the necessity of depriving the prisoner of potential means of escape, Closson v. Morrison, 47 N. H. 482, or on preventing the prisoner from destroying evidence otherwise properly subject to seizure, see Reifsnyder v. Lee, 44 Iowa 101, 103; Holker v. Hennessey, 141 Mo. 527, 42 S. W. 1090, the right to search a prisoner upon lawful FRANKFURTER, J., dissenting. 328 U.S. arrest was early settled in our law.* 1 Bishop, New Criminal Procedure (4th ed., 1895) §§ 210 et seq. A casual and uncritical application of this right to search the person of the prisoner has led some decisions in the lower federal courts to an unwarranted expansion of this narrow exception, with resulting inroads upon the overriding principle of the prohibition of the Fourth Amendment. Slight extensions from case to case gradually attain a considerable momentum from "judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right." For purposes of present discussion, the validity of the arrest has been assumed. But its legality raises several serious questions. First, it is not clear whether the O. P. A. investigators or the New York City detectives made the arrest. The O. P. A. investigators, of course, have no authorization to make an arrest. Whether the New York detectives are authorized to make arrests for federal offenses is a debatable issue. See Gambino v. United States, 275 U. S. 310; Marsh v. United States, 29 F. 2d 172; § 20 (a) of the Emergency Price Control Act, 56 Stat. 23, 29, 50 U. S. C. App. § 921. Though local law makes provision for punishment of the same acts that are federal offenses in this regard, N. Y. Laws, 1942, c. 544, the arrest was made for a federal and not a state or local offense. If the New York law is controlling as to the validity of the arrest, however, it is within the power of any person to make an arrest for a crime, including a misdemeanor, in his presence. The common law rule restricted arrest without warrant for a misdemeanor to those acts which were breaches of the peace. Here again, there is the issue of whether the petitioner committed any misdemeanor in the presence of those making the arrest at the time the arrest was made. A recent decision by the English Court of Appeal focuses attention on this last question. In Leachinsky v. Christie (1945), [1946] 1 K. B. 124, at 135, Lord Justice Scott makes clear why the legality of arrest turns on the justification which the arresting officer gives at the time of the arrest: "The law does not allow an arrest in vacuo, or without reason assigned, and the reason assigned must be that the arrest is for the purpose of a prosecution on the self-same charge, as is the justification for the arrest. It follows, and it is a principle lying at the very roots of English free 582 FRANKFURTER, J., dissenting. Byars v. United States, 273 U. S. 28, 33-34. In cases dealing with the search of the person," it is natural to speak of the right to search and seize things "in his possession" without strict regard to the ambiguous scope of a man's "possession." From that, opinions slide readily to including the right to search and seize things "within the immediate control" of the arrested person, language appropriate enough when applied to goods which the arrested person was transporting at the time. Taken out of their original context, these phrases are used until they are made to include the entire premises in which 7 dom, that if a man is arrested on one charge he is entitled to his release the moment the prosecution of that charge is abandoned. The prosecution cannot arrest on one charge, abandon their intention to proceed on that charge and then keep him in cold storage, still nominally on that charge, while they inquire into the possibility of putting forward a different charge. To do that they must first release him: then, when they propose to put forward some other charge, they can make that new charge the occasion of a new arrest." See also Dumbell v. Roberts (1944), 113 L. J. (K. B.) 185; People v. Marendi, 213 N. Y. 600, 609 et seq., 107 N. E. 1058. The Law Quarterly Review, in commenting on the Leachinsky case, pointed out: "An accused person has a right to know what the charge is against him so that, if he elects to speak, he may have a fair and open chance of clearing himself at the earliest moment." 62 L. Q. Rev. at 4. It is to be noted that Carroll v. United States, 267 U. S. 132, 157, assumes the federal law of arrest to be the same as that of the English. 5 "E. g., United States v. Wilson, 163 F. 338, 340; United States v. Murphy, 264 F. 842, 844; United States v. Snyder, 278 F. 650, 658; Maynard v. United States, 23 F. 2d 141, 144; cf. United States v. Welsh, 247 F. 239; Laughter v. United States, 259 F. 94; Donegan v. United States, 287 F. 641; Winkler v. United States, 297 F. 202. 6 E. g., Green v. United States, 289 F. 236, 238; Browne v. United States, 290 F. 870, 875; Garske v. United States, 1 F. 2d 620; Kwong How v. United States, 71 F. 2d 71. "E. g., Swan v. United States, 295 F. 921; Sayers v. United States, 2 F. 2d 146; United States v. Poller, 43 F. 2d 911; United States v. 7141 Ounces Gold Filled Scrap, 94 F. 2d 17; United States v. Feldman, 104 F.2d 255; Matthews v. Correa, 135 F. 2d 534; United States v. Lindenfeld, 142 F.2d 829. |