Admissibility Of Evidence Obtained By Illegal Search And Seizure Under The United States Constitution
| Date | 01 May 1965 |
| Author | Paul Hartman |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01070.x |
| Published date | 01 May 1965 |
ADMISSIBILITY
OF
EVIDENCE OBTAINED
BY
ILLEGAL SEARCH AND SEIZURE UNDER
THE UNITED STATES CONSTITUTION
THE
decision of the United States Supreme Court in
Mupp
v.
Ohio,'
which provided the occasion for this article, is important not only
because it is a landmark in the law concerning the admissibility of
illegally obtained evidence, but also because
it
illustrates the ongoing
process of infiltration of federal law into matters previously regarded
as the exclusive concern of state law and state courts.
THE
FOURTH
AMENDMENT
The Fourth Amendment to the United States Constitution spells out
a prohibition of unreasonable search and seizure and of general
warrants of search, seizure
or
arrest.2
It
is
one
of the first ten
Amendments which were ratified in
1791,
a few years after the
Constitution itself, and are generally regarded as part and parcel
of
that Constituti~n.~
The prohibition of the Fourth Amendment was preceded by
similar provisions in the bills
of
rights in various states. They were
intended to place under constitutional
ban
practices of the authori-
ties in England and the colonies such as general warrants and writs
of assistance, which were regarded as tools of tyrants and means to
reduce the right of individuals to personal security.l While the
1
367
U.S.
643 (1961).
2
"
The right of the people
to
be secvre in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, end
no warrants shall issue but upon probable cause, supported
by
oath or affirma-
tion, and particularly describing the place to be searched, and the persons acd
things to be seized.
"
8
One
of
the objections raised against the Federal Constitution as adopted in
1787
by the Constitutional Convention in Philadelphia was the absence
of
a bill
of
rights. Supporters of the measure pointed out that inasmuch as the
Constitution was one
of
limited powers, leaving the residuum to the
13
states
there was no need to prohibit the Federal Government from imposing restrictive
measures such as censorship laws since the adoption
of
such laws, not listed in
the matters reserved to the Federal Government, would be
ultra
wires.
This
view held that it was sufficient that the individual states included bills
of
rights
in their constitutions. Nonetheless, the founding fathers, in particular James
Madison, in an effort to gain speedy ratification
of
the Constitution by the
states, made the commitment that a bill of rights would be proposed by way
of amendment to the Constitution once the latter had been ratified. Several of
the states submitted proposals for a bill
of
rights simultaneously with their
instruments of ratification. Out
of
this material, James Madison, member
of
the First Congress, prepared
a
number of proposals, from which emerged
twelve Amendments which Congress submitted to the states for ratification.
The first ten Amendments were ratified. On these developments see Rutland,
The
Birth
of
the
Bill
of
Rights
(University
of
North Carolina Press,
1955).
4
The Massachusetts Declaration
of
Rights of
1765
and that state's Constitution
of
1780
coztained language almost identical w,i!h the Fourth Amendment.
Fraenkel, Concerning Searches and Seizures
(1m)
84
H8rv.L.R.
361.
298
M*Y
1965
ILLEGALLY
OBTAINED
EVIDENCE
IN
THE
U.S.A.
299
provisions of the state constitutions
on
search and seizure were
binding on state authorities, the prohibitions of the Fourth Amend-
ment, as those of the other original Amendments, were addressed to
the federal authorities and binding only on them.5
The Fourth Amendment contains two distinct clauses. The one,
in the second part, prescribes the prerequisites of a valid warrant for
search, seizure
or
arrest.
It
rules out searches, seizures and arrests
based on general warrants. The other clause prohibits searches and
seizures carried out without a warrant unless they satisfy the criterion
of reasonableness.6 The history of the adoption of the Fourth
Amendment shows that
it
is not a
"
one-barrelled affair," directed
only to the essentials of a valid warrant, but that the prohibition of
"
unreasonable searches and seizures
"
was intended to cover
something other than the form of a ~arrant.~
THE DEVELOPMENT
OF
TEE
FEDERAL
EXCLUSIONARY RULE
AS
APPLICABLE
TO
FEDERAL
COURTS
Boyd
v.
United States
was an early case before the Supreme Court
in which the question arose whether evidence obtained by an illegal
search and seizure could be used in criminal
or
quasi-criminal
proceedings before
a
federal court.
A
federal statute authorised the
courts to require defendants
in
proceedings arising under the federal
revenue laws to produce books, invoices and papers which would
tend to prove the allegations of the United States attorney.
It
further provided that
if
the defendant failed
or
refused to produce
such papers without satisfactory explanation, the allegations of the
United States attorney should be taken as confessed. Pursuant to
an order based on that statute, defendant,
in
a suit for forfeiture of
property imported in violation of the custom revenue laws, produced
the invoice, but objected to its reception
as
evidence on the ground
that the statute was unconstitutional.
The Supreme Court's opinion delivered by
Mr.
Justice Bradley
declared the invoices inadmissible evidence because the statute
On
the history of the Fourth Amendment see Lasson,
History and Development
of
the Fourth Amendment
to
the United States Constitution
(Baltimore, The
Johns Hopkins Press,
1937).
5
Barron
v.
Baltimore,
7
Pet.
243 (1833).
8
The
most frequent instance of a search and seizure without warrant which
is deemed reasonable and therefore lawful is one made as an incident to a
lawful arrest.
United States
V.
Rabinowitz,
339
U.S.
56 (1950)
which held
that not
only
a
search of a person when arrested but also of the place where
the arrest'is made is lawful without warrant as an incident to a lawful arrest.
It overruled
Tiupiano
v.
United States,
334
U.S.
699 (1948)
which had held
that
a
warrant of search of premises (as distinguished from a search of the
arrested person) must be procured when
"
practical
"
even though the search
is incidental to the arrest. There are indications that the Supreme Court may
return to the
Trupiano
position. See
Chapman
v.
United States,
365
U.S.
610
st
pp.
618-619 (1961);
Wong Sun
v.
United States,
371
U.S.
471
at
p.
480,
note
8
(1963).
7
Lasson,
op.
cit.,
p.
103.
See
Lopez
V.
United
States,
373
U.S.
427
at p.
.454
(Mr.
Justice Brennan dissenting)
(1963).
8
116
U.S.
616 (1886).
Cf.
Broeder
(1963) 42
Nebraska L.Rev.
498.
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