FRANKFURTER, J., dissenting. 339 U.S. have established a right to seize visible evidences of crime and to search the person arrested and even objects he physically controls, but neither case so much as hints that there is a right to search the entire place of arrest for "things connected with the crime." In Marron v. United States, 275 U. S. 192, these carelessly phrased dicta were for the first time reflected in the result. The statement in the opinion that officers "had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise," 275 U. S. at 199, was drastically qualified by Go-Bart Co. v. United States, 282 U. S. 344, and United States v. Lefkowitz, 285 U. S. 452. The teaching of those cases is that the warrant of arrest carries with it authority to seize all that is on the person, or in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person. The Lefkowitz decision emphasized that the things seized in Marron "being in plain view were picked up by the officers as an incident of the arrest. No search for them was made." 285 U. S. at 465. Thus explained, Marron stands merely for the historically justified right to seize visible instruments of crime at the scene of the arrest. In reliance on the prior dicta and on the Marron decision, it was asserted in Harris v. United States, 331 U. S. 145, 150, that "Search and seizure incident to lawful arrest is a practice of ancient origin." Literally, this is true: the right to search the person arrested and to seize visible instruments of crime has a good legal title. But judicial history cannot be avouched if this statement is meant to cover the right to search the place of arrest. Such a claim can only be made by sliding from a search of the person to a search for things in his "possession" or "in his immediate control," without regard to the treacherous ambiguity of these terms, and then using 56 FRANKFURTER, J., dissenting. these phrases, taken out of their original context, so as to include the entire premises. The short of it is that the right to search the place of arrest is an innovation based on confusion, without historic foundation, and made in the teeth of a historic protection against it. 9. If the exception of search without a warrant incidental to a legal arrest is extended beyond the person and his physical extension, search throughout the house necessarily follows. I am aware that most differences in the law depend on differences of degree. But differences though of degree must not be capricious; the differences. must permit rational classification. If upon arrest you may search beyond the immediate person and the very restricted area that may fairly be deemed part of the person, what rational line can be drawn short of searching as many rooms as arresting officers may deem appropriate for finding "the fruits of the crime"? Is search to be restricted to the room in which the person is arrested but not to another open room into which it leads? Or, take a house or an apartment consisting largely of one big room serving as dining room, living room and bedroom. May search be made in a small room but not in such a large room? If you may search the bedroom part of a large room, why not a bedroom separated from the dining room by a partition? These are not silly hard cases. They put the principle to a test. The right to search an arrested person and to take the stuff on top of the desk at which he sits has a justification of necessity which does not eat away the great principle of the Fourth Amendment. But to assume that this exception of a search incidental to arrest permits a freehanded search without warrant is to subvert the purpose of the Fourth Amendment by making the exception displace the principle. History and the policy which it represents alike admonish against it. 874433 0-50-10 FRANKFURTER, J., dissenting. 339 U.S. 10. To tear "unreasonable" from the context and history and purpose of the Fourth Amendment in applying the narrow exception of search as an incident to an arrest is to disregard the reason to which reference must be made when a question arises under the Fourth Amendment. It is to make the arrest an incident to an unwarranted search instead of a warrantless search an incident to an arrest. The test by which searches and seizures must be judged is whether conduct is consonant with the main aim of the Fourth Amendment. The main aim of the Fourth Amendment is against invasion of the right of privacy as to one's effects and papers without regard to the result of such invasion. The purpose of the Fourth Amendment was to assure that the existence of probable cause as the legal basis for making a search was to be determined by a judicial officer before arrest and not after, subject only to what is necessarily to be excepted from such requirement. The exceptions cannot be enthroned into the rule. The justification for intrusion into a man's privacy was to be determined by a magistrate uninfluenced by what may turn out to be a successful search for papers, the desire to search for which might be the very reason for the Fourth Amendment's prohibition. The framers did not regard judicial authorization as a formal requirement for a piece of paper. They deemed a man's belongings part of his personality and his life. In dealing with the question, this Court in United States v. Lefkowitz, 285 U. S. 452, 464, approvingly cited what was said by Judge Learned Hand in United States v. Kirschenblatt, 16 F. 2d 202, 203: "Whatever the casuistry of border cases, it is broadly a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him, once you have gained lawful entry, either 56 FRANKFURTER, J., dissenting. by means of a search warrant or by his consent. The second is a practice which English-speaking peoples have thought intolerable for over a century and a half. It was against general warrants of search, whose origin was, or was thought to be, derived from Star Chamber, and which had been a powerful weapon for suppressing political agitation, that the decisions were directed, of which Entick v. Carrington, 19 How. St. Trials, 1029, is most often cited. These cases were decided just after the colonists had been hotly aroused by the attempt to enforce customs duties by writs of assistance, and when within 30 years they framed the Fourth Amendment it was general warrants that they especially had in mind. Boyd v. U. S., 116 U. S. 616 . . . . "After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one's papers are safe only so long as one is not at home. Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. They withstand the winds of logic by the depth and toughness of their roots in the past. Nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face, if used by a government determined to suppress political opposition under the guise of sedition." FRANKFURTER. J., dissenting. 339 U. S. 11. By the Bill of Rights the founders of this country subordinated police action to legal restraints, not in order to convenience the guilty but to protect the innocent. Nor did they provide that only the innocent may appeal to these safeguards. They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent. The knock at the door under the guise of a warrant of arrest for a venial or spurious offense was not unknown to them. Compare the statement in Weeks v. United States, 232 U. S. 383, 390, that searches and seizures had been made under general warrants in England "in support of charges, real or imaginary." We have had grim reminders in our day of their experience. Arrest under a warrant for a minor or a trumped-up charge has been familiar practice in the past, is a commonplace in the police state of today, and too wellknown in this country. See Lanzetta v. New Jersey, 306 U. S. 451. The progress is too easy from police action unscrutinized by judicial authorization to the police state. The founders wrote into the Constitution their conviction that law enforcement does not require the easy but dangerous way of letting the police determine when search is called for without prior authorization by a magistrate. They have been vindicated in that conviction. It may safely be asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon police action are most scrupulously observed. The highly experienced Commission on Law Observance and Enforcement appointed by President Hoover spoke of "the high standards of conduct exacted by Englishmen of the police." Vol. IV Reports of the National Commission on Law Observance and Enforcement ("Lawlessness in Law Enforcement") p. 259. It is suggested that we cannot afford the luxury of such |