xt7msb3wtd0h_37 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Harris v. United States of America - no. 34 text Harris v. United States of America - no. 34 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_172/Folder_8_9/Multipage4310.pdf 1946 1946 1946 section false xt7msb3wtd0h_37 xt7msb3wtd0h SUPREME COURT OF THE UNITED STATES
No. 34.~~—O(:'1'('mi~:u TERM, 1946.

On \Vrit of (‘ertiorzn‘i to
the, l’nited States (it‘—
enit (‘onrt of Appeals
for the Tenth Circuit.

George Harris, Petitioner,


The United States of Aineri ‘tl.

[April —, 1047.]

MR. (’iingr .lL'ri'l’It‘li \'i.\'>to_\' delivered the opinion of the

Petitioner was ('(')ll\'l(‘l,(‘tl on sixteen counts of an indict-
ment ‘ ehnrging’ the unlawful possession. eoneenlinent and
alteration of eertztin Notice of (,‘lussifientien Cards and
Registration (‘ertit‘i rates in violation of ,S 11 of the Felec—
tive 'l‘rhining and Service Act of 1940f and 0 § 48 of the

JThe inrlietnient eontnined nineteen eonnts. Petitioner was eon-
vieted on the seeontl \vhieh ('llrll'flt‘ll the frznnl'ilent eoneezilinent of 8
Notiee ot' ('lnvitientien (‘nrda lit??? Form 57, and ll Registration
(‘eriitieutea INS l’orin 2; the third whit-h ehnr'i‘ed trnndnlent posses-
sion with intent to eonw rt to his t)\‘.'ll use the :iliove—Inentioned prop—
erty; the fourth through tenth ehniju‘ingr the nnlmvtnl :iltei‘:ition of a
Notiee (it (‘1: 'till. ltnowina‘ the
same to have been so embezzled, stolen, or purloined, shall be fined
not more than $5,000, or imprisoned not more than five years, or
both; . . .” i

'1 The Fourth Amendment provides: ”The riu'ht of the people to be
secure in their persons, houses, papers, and effects, against unreason—
able starrht s .‘lllil seizures. shall not be violated, and no \l'arrants shall
issue, but upon probable cause supportt d by (lath or atlirmation, and
partieularlv describing the place to be searched, and the persons or
thing's to be seixed."

7’ insofar as pertinent. the Fifth Aanendment provides: ”N0 per~
son . . . shall be eoinpeilid in any criminal case to be a witness
against himself. . . ."

5 35 :jtat. 11230—1131, 15 L7. 5 C. §338.


HARRIS 11. U. S. 3

hanks and the Mudge Oil Company, had caused a
$1000.00 forged check to he transported in interstate
commerce. in Violation of §3 of the National Stolen
Property .-\ct.T

Fire agents of the Federal Bureau of lnrestigation. act—
ing under the authority of the two warrants. went to the
apartment of petitioner in Oklahoma City and there ar—
rested him. The apartment consisted of a living room,
hedromn. hathroom and kitchen. It‘ollowing the arrest
which took place in the living room. petitioner was hand—
cutt'ed and a search of the entire apartment was under—
taken. The agents stated that the ohject of the search
was to find two $0000.00 criteeled checks of the Nudge
Oil (‘ompany which had heen stolen from that company’s
office and which were thought to have heen used in effect—
ing the forgery. There was evidence Connecting peti—
tioner with that theft. in addition. the search was said
to he tor the purpose of locating “any means that might
he used to commit“ these two crimes. such as hurglary tools,
pens. or anything that could he used in a confidence game
ot' this type." S

tine agent was assigned to each room of the apartment
and. over petitioner‘s protest. a careful and: thorough
search proceeded for approximately five hours. As the
search neared its end. one of the agents discovered in a
hcdroom hureau drawer a sealed envelope marked “George
llarris, personal papers." The envelope was: torn open

and on the inside a smaller envelope was found containing
eight Notice of (.‘lassitication 'ard: and eleven Registration
Certificates hearing the stamp of Local Board No. 7 of

‘ie agents who lt'slitlt'tl in the proceedings in the trial court
clearly ~t:ltt-tl that the ohjt-et ot' the >t’Itl't'll wa> the means employed
in committing the crimes charged in the warrants ot' arrest. None
or the suitsetpient statements or the agents’ it" read in their context,
are in contiiet with that :1~.~ertion.


41- HARRTS 1.1. U. S.

Oklahoma County. It was this evidence upon which the
eonvietion in the District Court was 11ased and against
which the motion to suppress was directed. 1t is conceded
that the evidence is in no way related to the crimes for
which petitioner was initiallj arrested and that the search
which led to its discovery was not conducted under the
1‘1uthorit'vofa search warrant."

In denying the motion to suppess the District (‘ourt
wrote no opinion. '1‘he( ircuit ( ourt of \p 1pea1s affirmed
the conviction. finding; that the seaich was carried on in
good faith 113' the federal agents for the purposes expressed,
that it was not 11 general exploratory search for merely
evidentiarv materials. and that the search and seizure were
{1 reasonable incident to petition 1r ._ sairest. ‘”

If it is true as petitioner contends that the draft cards
11 ete sei. ed in \1111 1t1on of petiti 111ei s rights under the
Fourth 1\1111-n11111ent. the eon\i1tionli>1d upon evidence
so ohtained cannot be sustained. bog/(1v. ('tti'ler/ States,
111; 1'. S. (1113 t’ 8811'); 1111/29 v. ('111'1’111/5‘1111111, ‘23‘.’ 1' S.

‘ (1014'): .11/1111111 \. 1 1111111] States, 2101. S. ‘20 (102 3);
Set/112111111 V. 1.1111111] Stu/('8. 2713 1'. S. 1( 11,1 (:10 -7). This
(‘ourt has consistently 11>>erted that the rights of privacy
and personal security protected by the Fourth Amend—
ment ". . . are to he regarded as of the very essence of
constitutional liberty; and that the guaranty of them is as

"11 appears t1 1:11 the 1111111<< wetc never found. 11>‘1ontlt nt eon—
eee>d 111.1 it in addition to the dral't 11:11‘11>,>11ven pen> 111111 11 quantity
()1 ti>>ue taper 1111111111111 oi' 1111int1' emploved 11> in> >trtnnent> 111' forgery
were >11i;1:ed.1\1>'o taken \v11r1 twentv—>e \e 11 pin-11> 111'11111111111111 which
at I111 11111 \\'tl'(‘ 1111111111> 11'11111 to he 1111'111111 pirki n11: 11111111 ltwas
1'1 <1 1111111 111 > 1111 orv that p1 tit 1111111 had 11' atin'ed the 1111111111 1111111115

11v t1111t1'1on1the 1111111> ot the 1\111111_1'e()11t‘onttan} and that entry
into the 1111it't1>‘ 11.1111 111'11111:11111111\'ed in that manner. Petitioner 1111112111
in his motion 111>1111111t1>> that v.11riousoth11r item> were taken incl ud-

inu‘ >1111et>t of 11111111 paper e.\1 1en>c hills and rc1111pts , ptx>on 11 1111111
I"'1111- 11'111111111 o1 t11eC‘it'1.uit Coutt o1\1p1111>1> re'1potttd at 1.31

.1“. 311155.31.


HARRIS ’L‘. U S. 5

important :111d :15 imperative :18 :1re the guarantees ol' the
other fundninentnl rights of the individu:1l eitixen "'
Golda/M(’11/(«dHr1/ex.2331'.$215,304I 19131:).

This (‘ourt has also pointed out that it is only unreason—
ahle Seurehes 21nd seizures which come Within the consti-
tutional interdiet. The test. of reasonal>leness cannot be
stated in rigid 11nd zihsolute terms. “Foch ease is to be
deeided on its own fLU‘TS' 11nd ('iI'ei1n1st2111ees.” (Io—Burt
Importing Company \'. (PH/[rd 5/111“, 282 l'. 5. CH4, 3.37
( lilill ).

The Fourth Amendment has never‘l‘ieen held to require
that every vulid search 21nd seizure he etl‘eeled under the
authority of :1 search warrant. Seareh :111d seizure inei—
d int- 1o lawful arrest is :1 pruetiee of uneient origin ” and
has long l)('("ll :1n integral part of the law—enfm‘eement
proeedures ol’ the United States” 11nd of the individual

[he opinions of this Court have clearly reeognized that
the senreh incident to arrest may. under appropriate eir—
emnstunees. extend heyond the 1)(‘,!‘FOH oi" the one arrested
to inelude the premises under his innnediute control.
Thus in .lg/nullo v. Cnilcd Stake, supra, at 30, it was said:

142’ ,\'i lit 71*} (1033); Trial of Henry and Jo/in Shores, 27 How.
St. 'l‘r.‘_’.'1.'>‘21‘_’l (179:1),

'1 rim- opinion <1l(‘:11'1lozo..l., in People v. (Vt/Huh “317 N. Y. l03,

13 lfx:nnple< ol' the prnrlim‘ are to he found in numerous e:1.‘,33‘.) (1937)? il[(II‘/‘()2L


IV/il/m.’ Sir/1’15. xii/urn; (II/«'lw/ Alt/[Ix \L [Juli/{11112177. ZN.) l7. 5, J33
lllliljl; I’m-fix v, / /1/[m’.\'1‘://.1.<_ 71'. 17.311 THU (HUM: llndr 1/ NIH/(ax- \'.
i‘ /,i/ U NW N (I'm/J. [ii l'. 211 ]l_ 1 Mb) I Al/HU/‘It H'N \'. ('HI'I'HI. 13.”) l‘. :(l

“ili"11'ri"’/r"'/-~‘ \,1\'1’Hlv. 3} i\ri:/:. 3'0. 213 He, 2:72 lll‘fiill: (Vino/mn-
H‘ui/z‘h \‘. /’u~’1‘/,w, ‘_".'l liv, HT, 3 S. “h ‘_’d “NT ll'.|2\l: [fun/(x \‘.
I’M/'H‘M/h ‘_’l l’it-l-vx I.\l:1\~.1 1.7!} ll.\i§‘.lli .\nd we ":1‘1'5 r'ited in IL’

.\. 1,. [:1 11117: 7.1 .\4 1., .1134.


6 HARRIS e. U. S.

“The right without a search warrant eonteniporaneously
to search persons lawfully arrested while eonnnitting crime
and to search the place where the arrest is made in order to
lind and seize thing‘s connected with the crime as its fruits
or as the means by which it wasconnnitted. as well as
weapons and other things to et't'ect an escape front custody,
is not to be doubted.” ” It is equally clear that a search
incident to arrest. which is otherwise reasonable is not
automatically rendered invalid by the fact that a dwelling
place. as contrasted to a business premises, is subjected to

Nor “an support be found for the suggestion that the
seaich could not validly extend beyond the room in which
petitioner was arrestedf“ Petitioner was in exclusive pos—V
session of a tour rooin apartinent. lis control extended
quit) as-niuch to the bedroom in which the draft cards
were lound as to the living room in which he was arrested.
The canceled cheeks and other instruinent'alitieS of the
crimes charged in the warrants could easily lifl‘fC. been
concealed in any of the four rooms of the apartment.
()ther situations may arise in which the nature and size
01' the object sought or the laek of effective control over
the prenri;~es on the part of the persons arrested may re—
quire that, the searches be less extensive. But the area

" Similar expressiens niai' l-e found in the cases cited in notes 13

and lit. 'l'l'erc is nothing in the ({o—liru'i’ and lief/to/I‘s'i‘z eases, sup/'11,
which ea~t< doubt on 1111» [ti'opor-‘itlttli.

‘7' ritrtctcr rcrpiireinenss ot' rt :isrinablt ness nia_\' apply where a dwell—
ing" is being searched, [Mr/x \'_ l'ntlul States. 5325 l'. S. 3‘\‘_’ (lit-Hi);

_l///i‘i,"wtt‘.~* \', {'itl'i‘t t/_ SHIN/VI. at 337.

1" Searches going beyond the room ot‘ arrest were upheld in the

Amie/la and thin-on eases. N/t’lll'll. The searches found to be in\'alid
in the (i t—t’h/rt aud Let/(writ: cases were so held tor reasons other
than the areas cmei'ed by the searches. it has not been the under-
standing ol' the lower tedt‘t'dl courts that the >(‘Itl't’ll in every case must
be ~o confined. See, tor example: (71itc1/5Uticx\'. [rim/enfc/I/V. HZ F.
2d \3‘.‘ (IN! 1t: .l/«It't/u t/,'->‘ \‘. (Virtue sop/"u; (fit/ltd blrites V. 7141
UNI/rm (fob/l. oily/U.


HARRIS r. F. S. 7

\Vltit‘ll reasonahly may he snlrieetetl l0 seareh is not to he
(leterininetl lry the t‘nrtnitnns t‘ll't‘tlltlritttllt‘t‘ that the ar-
rest tool: plate in the living room as (‘t)llt1'i1.\'t(‘(l to 501110
other room 111' the apartment.

Similare<>11si1lerati011sare applieal'ile in e1.‘al112'1tinf;‘ peti—
tioner's emttentitm that the seareh was. in any event. too
intensiye Here again ye must look to the partienlar
eirennistanees ()t' the partienlar ease. ;\s wa.s oliseryetl lw
the (‘irenit (Want (it .\ppeals: “lt is not likely that the
cheeks wnnlrl l)(‘ yisilul ' 21(‘(‘(“~‘Sll>l(‘. By their way nature

they wonltl haye been kept in swine seel11le where agents are seeking: a stolen
antonnilaile or an illegal still. “'0 1111 not helieye that
the searr'h in this 1': se went heyontl that which the
sitnatinn reasonably tlemantletl.

This is not a case in whieh law entrjn‘eement otheials haye
inyarlerl :1 private rlwelling‘ without anthnrity ainl seiu'etl
(witlenee 0t (*rime. i'lmns y. I'M/((7t91’(1/(1.\'.23.'> l'. > 3l3
tl‘JIlI: lit/mas \'. (“Hi/Ml Stu/(N. 3723 l', 8. ‘JH llllflfl;
.\'//r:~:l(/n 1'. Ufa/rid of ('rrlumltiu, H7) 1" ‘21l tS-thl (1040).
Here the aQ‘ents entereil tl1eapz'1rtn1ent11ntt; rill/NINTH V. {Vt/[t «/ States. .w/im. at
3:30: .l/urron y. l'nri’rr/ Aloha. sup/'11. at ltltt: tilt/ted NIH/rs y, Let/.‘oil'itz,
sup/VI. at tt‘n.'»~:1'.tt, The same distinction is drawn in numerous cases

in the lower federal courts: il/tlfl/lt‘tl'N y, ('m'rm. ail/NW. at 537}
(With «/ .S/u'tx s- \. l/Jm/r Hjt ///'. supra. at 533; [/2 /‘t (Hus/2r w. HT l“. Lid
Tin 7.31 tilt-1.3), -



HARRIS 1'. 1'. S. 9

ol' olriects properly subject to sei::ure_ (‘ertainly this is
not :L ease of search for or seizure of an intlivitlual‘s private
papers. nor (loes it involve a prosecution hasetl upon the
expression of political or religious views in such papers.”
Nor is it a significant consideration that the draft ('ill'tlS
which were SOl'Ct‘tl were not relatetl to the crintes for which

petit ione ' was arrested. lere (luring: the course ot‘ a. \'ztll(l
gents came ttpou property of the l'nitezl Sta es
in the illegl custotly ot' the petitioner. .lt \\'as property

search the a

to which the (loveininent was entitlerl to possession.”
In keeping the draft cartls in his custorly petitioner was
guilty of a St‘l'lttllritllttl(‘Ullllllltlllflttl'll(‘ll>'(‘t1f_‘.'ttlllsi the laws
of the l'nitetl States. A crime was thus heiug committed
in the very presence of the agents eontlucting the search.
Nothing in the tlecision:s of this (‘ourt gives support to the
suggestion that under such circumstances the law—en-
forcement otlinials nutst iinpotently stantl aside and refrain
front sei'xzin;r such eont’rahanrl material. lt' entry upon the
premises he authori (‘tl atnl the search which follows he
valitl. there is nothing in the Fourth ;\ll't(*ll(ll:tt‘lli which
inhihits the seizure by law—enforcenient agents of govern—
ment property the possession of which is a crime. even
though the otllt-ers are not ayvzue that such property is on
the pretziises when the. search is initiated?"

The dangers to fundamental personal rights and inter—
ests resultingr from excesses of la\v—enfmceintatt officials
committed (luring the course of criminal investigations are
not illusory. This Court has always been alert to pi‘otecf

" /'.'/t/ir‘/x \H ('ttx'x‘f/Ig’lu:t. lll lloW, .‘t 'llt'a lt'liltt. lltTi‘vllh—l,

WIN/ins v, ('tr'lrt/ Shah's. sup/'11 at Sttt), And see But/r/ \'. (in/[cf]
Matt s, .wpru, tljiJstSZvl; ll't'tswt \'. L'n/[u/ Slates, 2‘31 1'. b. 2501, 53-50
tlttl l l.

”Kl/[lt/m \'. (IN/1H,] Stu/rs. 3111') 17‘ (">30 (I‘ll-ll; I'll/[u/ XIII/(‘5‘ V.
()/I/ [Mutt/lion llV/rr/nmw‘. lt) l“. L’tl Tiiti (lttltit: ('ntlu/ Slums v,
Tim Smut/p (in/ts»; »l\ l“. Itl ltlT tl‘fl-‘il ): l’t/pr'r \. I'm-[rd States,
.‘til l‘l. iii l‘*l (lit/ill: lit/Ilin \. (ll/IZII/ALItth-V’. 7‘) [.211le MUCH);
Mall/aux; v. ("or/ta, supra.


10 HARRIS p.118.

against Sizvh niHlST‘. ,hif we shmuhl not pm'mit our knowl—

edgv that :1! )11:<(‘S mmntimvs mom to give sinister cohn‘ution
tn pi‘nvwhn'hs \vhith zli'v ixisimlly I‘t‘zismmhh‘. VVO 0011-
('illth‘ than in thismsv 111(‘(‘\'i(1(‘1l('(‘ \\‘hi<'h ful‘111(‘(ilil(‘1>118i$
of petitioner's convictinii was «ihiziihod without Violation
of petitioner‘s rights under the {,‘uiistiiu‘iioii.



 (7— c» - / ,

,, K ' . , ' , 4 f '7
- — i (— 4.5“.- g, Q- (A: _ ‘:. :’§:_’i€.§f§gif’t/’



31L Cut-_-__..,._.._-._..- _________ fl



m x; r";
a-.. w"
. my“:


 N0..3h, l9h6 Term
Abstract of )pi nion.



Facts a A. Arree t at apartment under warrants charging
_""‘" Mela ions of Mail Fraud St atute and National
Stolen Property Act»
FBI agents stated that object of search was the
two cancelled checks and other means of coma
mitting crimes charged in warratxtso
Discovery of draft cards a
Indicted fo r iliegal 1 of draft carde.
Metion to suppr% ~_ . convicted}:
OVA 31 fimEKio

Rights protected by Ath Amendment vital, but only unreas onm
able searches and seizures forbiddeno (pp. h-S). ‘

Search incident to arrest well recognized and of ancient
3ri.gino (p0 S}9


. L


:ion was reasonable:
sonable simply because dwelling was searched


B. apartment nob
in control of

1 exiensive (Po 6-?
n %
sought could be we

n..‘ we apaerent

Pei 31 anywhere

; too in+ensive (p¢ 7)
Reason? bleness depends upon the object of
to be distinguished from those involving
nable searchee (ppo 7,8},
into apartment he.e was validly attainedo
and Byars v. U55»
fileratofirgeJ'archT—Cf. Go—B-su‘i

sought for and those seized properly subject to

. (ppo R“9)c
Distinw ion be.,fleen mere evidentiary materials on one
nand 1nd means of crime, stolen propert v, etc. on
the oLher. .

e3} {5 sought were meana of crime and properly subject
to seizurec
Draft cards were Govlt propertv and subject to


a:t tha’ draft cards were rela ted to crime different

that charged in warrants not signifi Weant- 0p. 9).

he Govft elliibled to possession of drait cards.

3. HarrL LS was committi.ng a continuing crime by retaining
dr'”t cards in his posseSSL on.





George Harris


N0. _fl3h . “"’*’ “““
The United States of America

13t.DraIt1/fl;: 2d Drafth/S: 5r qugt
ngu EACLLCH : Date :Acticn: Date Act

-: on nn on an no on no u. -: on on an no on C4





nn no 0' on



Douglas . 1/27/h7 Agree h/S/h?’

na In an on
a n. no on a. up no no

2/ 7/37 Dissent%*

nn an In no no no on n. on

nu on an

ra nn nn an u
an nu no h. -a .u

1/301g? Dissent

0. no on 00 on an on an no on an an n. on .n no











ca an nn n
n. n: u. an

on on


*Made some suggested changeso


 The Chief Justice:

I am submitting the following language to be inserted in the Harris opinion:

"We are here confronted with the problem of whether the search and seizure
in this case violated the provisions of the Fourth Amendment. Congress has
not seen fit to legislate with respect to the type of situation with which

we are now concerned. An Act of Congress, of course, cannot legitimatize

procedures which offend the constitutional guarantees. It follows that if it

be conceded that Congress might validly have authorized the search and
seizure in this case, th procedures in question did not Violate petitioner's

rig.ts under the Fourth Amendment."


 The Chief Justice


 N0. 68

Concurring Dissents Not fieard From
1. Black Frankfurter &m““fibug&a§


Reed Jackson )<

Ifiurpl’nr “J “ 9 ' ‘ f
3 KW“ 35 4!” helm

Burton d

HARRIS a No. 3h
Concurrigg Dissents Not Heard From
10 lack Frankfurter 1. Jackson
‘ /
2o Reed Murphy ,A
30 Douglas Rutledge

he Burton



Concurring ssents
10 Read

T» 'v‘ at

/‘z-, ,',‘



 fiuptcnw Gouri of 11p: lhritvh §faip§
32111 a511i11gfn11.73. 0:

January 31, 1947
Dear Chief:
I am very sorry that I have to hold you
up in the Harris case, but I do.

Faithfully yours,

+1 4',
/ . I:

The Chief Justice



No. 34.—OCToBER TERM, 1946.

On \Vrit of Certiorari t0
the United States Cir—
cuit. Court of Appeals
for the Tenth Circuit.

George Harris. Petitioner,

The United States of America.

[April —, 1947.]

Memorandum of Mn. Jt‘s'riCE FRANKFL'RTER.

If during our discussion of this case, l spoke with too
much vehemence, and intensity. I apologize. But I have
no desire to minimize my concern over the outcome of this
case. It only the fate of the Davises and the Harrises
were involved. I might be brutally indifferent to the ways
by which Davises and Harrises get the deserts of their
cupidity. But I cannot withhold condemnation of the
police methods in a case like this without accepting the
impli -ations of such decisions for the future. And for me
the implications are serious threats against precious as—
pects of our traditional freedom. The implications of the
novel doctrine announced in the Davis case regarding the
scope of public records as justification for search without
warrant were indicated by Judge Learned Hand and Judge
Frank when they rejected the ground that prevailed here.
It is well known that Judge Learned Hand has little toler-
ance for technical or doctrinairt legal efforts to escape the
penalty of the law. All the more significant is it that
a judge who looks with a hostile eye on the immunity
against selt—crimination “would fight to the last ditch
against search and seizures.” And with all his charming
idiosyncrasies. it must be remembered that, Judge Frank
is widely read in history and has absorbed some of its
great lessons. When two such judges rejected the ground
on which the [Mia's case here went, and conmientators
have noted its ominous implications, I am loath to believe



that the four to three opinion in the Davis case is this
(‘ourt‘s last word. I‘ say four to three. for while I know
that the late (‘hief Justice voted to affirm the case. he died
months before the full scope of the implication of the
issues in the tase had been analyzed in a dissent.

By greatly extending past 'notions concerning access tO‘
“public records.” the Darts doctrine would correspond—-
ingly narrow the protection of the Fourth Amendment.
The proposed opinion in the Harris case goes way beyond
prior decisions in another direction—in that it would per—
ini‘t rummaging throughout a house without a search war-
rant on the ostensible ground of looking for the instru-
ments of a crime for which an arrest. but only an arrest,
has been authorized. It is because I deem the implica-
tions of such a doctrine to have serious threats to basic
liberties that I am moved to continue the discussion of
the Harris case.

At the outset. I put to one side a question raised by
Brother BI'R’I‘UN at the last Conference. We are not pass—
ing on an Act of (‘ongress authorizing the search and seiz—
ure in controvm'sy. It is quite another thing for this
Court to find the conduct of agents of the FBI or other
arresting officers violative of the Fourth Amendment. in:
the exercise of our independent judgment as to the scope‘
of the protection of privacy afforded by that Amendment.
The validity of an Act of Congress would introduce a
wholly (,lifferent issue—the issue that is always involved
when we are compelled to sit in judgment upon the judg-
ment of (‘ongress as to its powers under the (.‘onstitution.
Except for very few provisions. the Bill of Rights is not
so rigid as to preclude a limited range of diversity of judg—
ment which. when exercised by Congress. the Court should
respect. “Jury." “grand jury." and “indictment" are per—
haps the only terms of art in the Bill of Rights, carrying
inflexible restrictions and precluding differences of opinion
among those acquainted with the origins of our legal insti—




tutions. Other provisions of the Bill of Rights are not-
detailed commands technically defined. They express
precepts of fairness and reason appropriate for a free
society. The inherent flexibility of such precepts ac—
counts for the sharp divisions in this Court. usually five to
four. when passing on legislation challenged as violative of
such constitutional concepts as “estatdislnncnt of religion,”
“freedom of the press." “bill of attainder" “cruel and un—
usual punislnnent.” “twice put in jeopardy.”

Quite another problem would confront the Court were
w * asked to nullify what ("ongress has conceived to he its
right and duty under the Constitution. The whole history
of legislation d ‘aling with search and seizure shows how
warily (‘ongress has walked. precisely be :ause of the
Fourth Amendment. A search of premises for instru—
ments of crime as an incident to a warrant of arrest has
never been authorized by Congress. Nor has (‘ongress
ever authorized such search without a warrant even for
stolen or eontrabaml goods. or for public records. On the
contrary. it is precisely for the search of such goods that
specific legislative authorization was given by ('ongress,
and the warrants even for such search required great par—
ticularity and could be issued only on the basis of
substantiatml grounds indicating guilt.

If I begin with some general observations, it is not be—
cause I am unmindful of Mr. Justice Holmes caution that
“general propositions do not decide concrete cases.”
Whether they do or not often depends on the strength of
the conviction with which such “general propositions” are
held. A principle may be accepted as the diplomats say
“in principle" and yet. be too irksome to be applied to a
particular situation. 01‘. while accepted “in principle.”
a competing principle may seem more important. Both
these consideratimis have influenced views in applying
the search and seizure provisions of the Bill of Rights.
I say this after listening to discussions at Conference dur-



ing the last few years and with every respect for views
differing from mine. It is relevant for me to say this
be :ause it is my conviction. after thinking about this sul —
ject as hard as I can. that one's view regarding circum—
stances like those presented in the Harris *ase ultimately
depend upon one's outlook on the history and nature of
the protection of the Fourth Amendment against unrea—
Sonable search and seizure. lbelieve it makes all the
difference in the world whether one gives that Ainendment
a place second to none in the Bill of Rights. or considers
it on the whole as a kind of nuisance. a serious impedi—
ment. in what is dramatically called the war against
crime. '

And so. at the risk of boring my brethren. I shall say
some, things that are platitudinous but ap1,>e.ar to need
saying. I

The provenance of the Fourth Amendment. bears on its
scope. It will be re éalled that James Otis made his
epochal argument against general warrants in 1761.
()tis' defense of privacy was enshrined in the Massachu—
setts (‘onstitution of 1780 in the following terms:

“XIV. livery subject has a right to be secure from
all uln'easonable s‘arches. and seizures, of his person.
his houses. his papers, and all his