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of the person and those immediate physical surroundings which may fairly be deemed to be an extension of his person.

5. Another exception to the constitutional prohibition of unreasonable searches is likewise rooted in necessity. The search without a warrant of moving objects-vehicles and vessels was sanctioned in Carroll v. United States, 267 U. S. 132, on the ground that "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 267 U. S. at 153. Furthermore, the limits of the exception were carefully defined in terms of necessity, for the Court added:

"In cases where the securing of a warrant is reasonably practicable, it must be used, and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause." 267 U. S. at 156.

Even as to moving vehicles, this Court did not lay down an absolute rule dispensing with a search warrant. It limited dispensation to the demands of necessity, where want of time precluded the obtaining of a warrant. The necessity founded on the time factor which guided the Court in the Carroll case cannot justify the search here made of the respondent's premises, for there was ample time to obtain a warrant before the arrest and even on the occasion of the arrest.

6. It is in this connection that the body of congressional enactments becomes significant, particularly legislation contemporaneous with the adoption of the Bill of Rights. If explicit legislation was deemed necessary to inspect without warrant even vessels and vehicles, and if

FRANKFURTER, J., dissenting.

339 U.S.

Congress has been very niggardly in giving authority to search even with a warrant-niggardly both as to the officers who may obtain such warrants and as to strictly defined circumstances under which search is allowedthe attitude disclosed by this impressive legislation bears powerfully on the historic purposes of the Fourth Amendment and the functions that it fulfills in our democracy. It deserves to be recalled that Congress, despite repeated requests by Attorneys General, long refused to make search by warrant generally available as an aid to criminal prosecution. It did not do so until the First World War and even then it did not do so except under conditions most carefully circumscribed.2

7. With only rare deviations, such as today's decision, this Court has construed the Fourth Amendment "liberally to safeguard the right of privacy." United States v. Lefkowitz, 285 U. S. 452, 464.3 The guiding line in dealing with the Fourth Amendment was set forth in Gouled v. United States, 255 U. S. 298, 303-04:

"It would not be possible to add to the emphasis with which the framers of our Constitution and this court (in Boyd v. United States, 116 U. S. 616, in Weeks v. United States, 232 U. S. 383, and in Silverthorne Lumber Co. v. United States, 251 U. S. 385) have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments. The effect of the decisions cited is that such rights are declared to be indispensable to the 'full enjoyment of personal security,

2 See Title XI of the Act of June 15, 1917, 40 Stat. 217, 228, now Rule 41 of the Federal Rules of Criminal Procedure. For a table of congressional legislation, indicating its scope, see the Appendix to the dissenting opinion in Davis v. United States, 328 U. S. 582, 616. See also an analysis of the cases in the Appendix to the dissenting opinion in Harris v. United States, 331 U. S. 145, 175.

3

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FRANKFURTER, J., dissenting.

personal liberty and private property'; that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen,the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or 'gradual depreciation' of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers."

8. The opinion of the Court insists, however, that its major premise that an arrest creates a right to search the place of arrest-finds support in decisions beginning with Weeks v. United States, 232 U. S. 383. These decisions do not justify today's decision. They merely prove how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision. This progressive distortion is due to an uncritical confusion of (1) the right to search the person arrested and articles in his immediate physical control and (2) the right to seize visible instruments or fruits of crime at the scene of the arrest with (3) an alleged right to search the place of arrest. It is necessary in this connection to distinguish clearly between prohibited searches and improper seizures. It is unconstitutional to make an improper search even for articles that are appropriately subject to seizure when found by legal means. E. g., Amos v. United States, 255 U. S. 313; Byars v. United States, 273 U. S. 28; Taylor v. United States, 286 U. S. 1. Thus, the seizure of items properly subject to seizure because in open view at the time of arrest does not carry with it the right to search for such items.

FRANKFURTER, J., dissenting.

339 U.S.

The doctrine of the right to search the place of arrest announced today rests on the precarious foundation of this passage in the Weeks case:

"What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, § 211; Wharton, Crim. Plead. and Practice, 8th ed., § 60; Dillon v. O'Brien and Davis, 16 Cox C. C. 245. . . . Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the control of the accused." 232 U. S. 383, 392.

The statement does not even refer to a right to search the place of arrest, and the authorities cited merely support the assertion of a right to search the person arrested and to seize visible instruments or fruits of crime.*

The authority to search which flows from the right to arrest was next discussed by this Court in Carroll v. United States, 267 U. S. 132, 158:

"When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution."

A fair sample is § 60 of Wharton, Crim. Plead. and Practice, 8th ed.: "Right to Take Money from the Person of the Defendant," which discusses only the right to search the person arrested. Again, in Dillon v. O'Brien and Davis, 16 Cox C. C. 245, the issue was the right of arresting officers to seize apparent evidences of crime, not their right to rifle files in an effort to turn up the evidence.

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While broader than the Weeks statement, this is still far from claiming the right to search a place merely because of an arrest there. What was said in the earlier case about articles in the control of the arrested person not being in issue is now stated positively as a right to seize whatever is found in the control of the person arrested. This Carroll statement is based on what was said in Weeks, and on two State cases which did not enunciate a right to search the place of arrest.5

These limited statements in the Weeks and Carroll opinions were uncritically expanded in Agnello v. United States, 269 U. S. 20, 30:

"The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means. by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U. S. 132, 158; Weeks v. United States, 232 U. S. 383, 392."

If such a right was "not to be doubted" it certainly cannot be supported by the cases cited. Carroll and Weeks may

5 Getchell v. Page, 103 Me. 387, 69 A. 624, was an action for trespass for the seizure of accoutrements of liquor-making under a warrant which authorized the search and seizure of intoxicating liquor. The decision that the officer was not liable for the seizure under those circumstances does not support an independent right to search the place of arrest. In Kneeland v. Connally, 70 Ga. 424, 425, the other case cited, the court actually held that the trial court had no jurisIdiction of the case. It went on to say that "just as a warrant to arrest a man charged with murder would carry with it authority to seize the bloody knife or smoking pistol which killed," the instruments of the crime of gaming could be seized in arresting a proprietor of a gambling house. But once again no authority to search for these instruments was suggested.