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FRANKFURTER, J., dissenting.

339 U.S.

a guilty person to escape conviction because of hasty or ill-advised action on the part of enforcement officers. But the same may be said of the requirements of the Fourth Amendment which the exclusionary rule was fashioned to implement. The framers of the Fourth Amendment must have concluded that reasonably strict search and seizure requirements were not too costly a price to pay for protection against the dangers incident to invasion of private premises and papers by officers, some of whom might be overzealous and oppressive. See dissent in Feldman v. United States, 322 U. S. 487, 500-502. Nor can I see where the enforcement of criminal justice is likely to be seriously handicapped by adhering to the Trupiano holding.

I would affirm the judgment of the Court of Appeals.

MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins, dissenting.

The clear-cut issue before us is this: in making a lawful arrest, may arresting officers search without a search warrant not merely the person under arrest or things under his immediate physical control, but the premises where the arrest is made, although there was ample time to secure such a warrant and no danger that the "papers and effects" for which a search warrant could be issued would be despoiled or destroyed?

The old saw that hard cases make bad law has its basis in experience. But petty cases are even more calculated to make bad law. The impact of a sordid little case is apt to obscure the implications of the generalization to which the case gives rise. Only thus can I account for a disregard of the history embedded in the Fourth Amendment and the great place which belongs to that Amendment in the body of our liberties as recognized and applied by unanimous decisions over a long stretch of the Court's history.

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FRANKFURTER, J., dissenting.

It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment. A disregard of the historic materials underlying the Amendment does not answer them.

1. It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, in Silverthorne Lumber Co. v. United States, 251 U. S. 385, in Gouled v. United States, 255 U. S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper.

2. This is the Fourth Amendment:

"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."

These words are not just a literary composition. They are not to be read as they might be read by a man who knows English but has no knowledge of the history that gave rise to the words. The clue to the meaning and

FRANKFURTER, J., dissenting.

339 U.S.

scope of the Fourth Amendment is John Adams' characterization of Otis' argument against search by the police that "American independence was then and there born." 10 Adams, Works 247. One cannot wrench “unreasonable searches" from the text and context and historic content of the Fourth Amendment. It was the answer of the Revolutionary statesmen to the evils of searches without warrants and searches with warrants unrestricted in scope. Both were deemed "unreasonable." Words must be read with the gloss of the experience of those who framed them. Because the experience of the framers of the Bill of Rights was so vivid, they assumed that it would be carried down the stream of history and that their words would receive the significance of the experience to which they were addressed—a significance not to be found in the dictionary. When the Fourth Amendment outlawed "unreasonable searches" and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is "unreasonable" unless a warrant authorizes it, barring only exceptions justified by absolute necessity. Even a warrant cannot authorize it except when it is issued "upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized." With all respect I suggest that it makes a mockery of the Fourth Amendment to sanction search without a search warrant merely because of the

1 For a more detailed summary of the English and American history underlying the Fourth Amendment, see the dissenting opinions in Davis v. United States, 328 U. S. 582, 603-05, and Harris v. United States, 331 U. S. 145, 157-62. The impact of this history was such that every State of the Union now affords constitutional safeguards against governmental search and seizure. Its contemporary vitality is emphasized by New York's adoption of such a provision as recently as 1938. N. Y. Const. of 1938, Art. 1, § 12.

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FRANKFURTER, J., dissenting.

legality of an arrest. I have yet to hear the answer to Judge Learned Hand's reasoning below that to make the validity of a search

"depend upon the presence of the party in the premises searched at the time of the arrest . . . would make crucial a circumstance that has no rational relevance to the purposes of the privilege. The feelings which lie behind it have their basis in the resentment, inevitable in a free society, against the invasion of a man's privacy without some judicial sanction. It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the 'right of privacy.' The history of the two privileges is altogether different; the Fourth Amendment distinguishes between them; and in statutes they have always been treated as depending upon separate conditions." 176 F. 2d 732, 735.

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3. This brings me to a consideration of the right of search and seizure "incident to arrest." Undue haste in coming to that issue too readily leads to getting off the track of the Fourth Amendment. The Government argued as though the Constitution said search of premises may be at large whenever an arrest is made in them. The utterly free hand, for all practical purposes, this gives the arresting officers to rummage all over the house is, I think, inevitable unless the basis of any right to search as an incident to arrest is put in proper focus. Photographs can be so taken as to make a midget look like a giant, and vice versa. The same kind of distortion results if a legal doctrine embedded in a larger matrix of principle is taken out of the matrix and elevated to an independent position. In

FRANKFURTER, J., dissenting.

339 U.S.

plain English, the right to search incident to arrest is merely one of those very narrow exceptions to the "guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case." Robertson v. Baldwin, 165 U. S. 275, 281.

4. What, then, is the exception to the prohibition by the Fourth Amendment of search without a warrant in case of a legal arrest, whether the arrest is on a warrant or based on the historic right of arrest without a warrant if a crime is committed in the presence of the arrester? The exception may in part be a surviving incident of the historic role of "hue and cry" in early Anglo-Saxon law. See Judge Cardozo in People v. Chiagles, 237 N. Y. 193, 196, 142 N. E. 583, 584. Its basic roots, however, lie in necessity. What is the necessity? Why is search of the arrested person permitted? For two reasons: first, in order to protect the arresting officer and to deprive the prisoner of potential means of escape, Closson v. Morrison, 47 N. H. 482, and, secondly, to avoid destruction of evidence by the arrested person. See Reifsnyder v. Lee, 44 Iowa 101, 103; Holker v. Hennessey, 141 Mo. 527, 540, 42 S. W. 1090, 1093. From this it follows that officers may search and seize not only the things physically on the person arrested, but those within his immediate physical control. What a farce it makes of the whole Fourth Amendment to say that because for many legal purposes everything in a man's house is under his control therefore his house-his rooms-may be searched. Of course in this field of law, as in others, opinions sometimes use language not with fastidious precision. Apart from such instances of loose use of language, the doctrine of search incidental to arrest has, until very recently, been strictly confined to the necessities of the situation, i. e., the search

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