# Warden Maryland Penitentiary v. Hayden/Concurrence Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Black
* Dissenting Opinion Douglas
United States Supreme Court
387 U.S. 294
Warden Maryland Penitentiary v. Hayden
Argued: April 12, 1967. --- Decided: May 29, 1967
Mr. Justice BLACK concurs in the result.
Mr. Justice FORTAS, with whom THE CHIEF JUSTICE joins, concurring.
While I agree that the Fourth Amendment should not be held to require exclusion frm evidence of the clothing as well as the weapons and ammunition found by the officers during the search, I cannot join in the majority's broad-and in my judgment, totally unnecessary-repudiation of the so-called 'mere evidence' rule.
Our Constitution envisions that searches will ordinarily follow procurement by police of a valid search warrant. Such warrants are to issue only on probable cause, and must describe with particularity the persons or things to be seized. There are exceptions to this rule. Searches may be made incident to a lawful arrest, and-as today's decision indicates-in the course of 'hot pursuit.' But searches under each of these exceptions have, until today, been confined to those essential to fulfill the purpose of the exception: that is, we have refused to permit use of articles the seizure of which could not be strictly tied to and justified by the exigencies which excused the warrantless search. The use in evidence of weapons seized in a 'hot pursuit' search or search incident to arrest satisfies this criterion because of the need to protect the arresting officers from weapons to which the suspect might resort. The search for and seizure of fruits are, of course, justifiable on independent grounds: The fruits are an object of the pursuit or arrest of the suspect, and should be restored to their true owner. The seizure of contraband has been justified on the ground that the suspect has not even a bare possessory right to contraband. See, e.g., Boyd v. United States, 116 U.S. 616, 623-624, 6 S.Ct. 524, 528-529, 29 L.Ed. 746 (1886); United States v. Kirschenblatt, 16 F.2d 202, 203, 51 A.L.R. 416 (C.A.2d Cir. 1926) (L. Hand, J.).
Similarly, we have forbidden the use of articles seized in such a search unless obtained from the person of the suspect or from the immediate vicinity. Since a warrantless search is justified only as incident to an arrest or 'hot pursuit,' this Court and others have held that its scope does not include permission to search the entire building in which the arrests occurs, or to rummage through locked drawers and closets, or to search at another time or place. James v. State of Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965); Stoner v. State of California, 376 U.S. 483, 486-487, 84 S.Ct. 889, 891-892, 11 L.Ed.2d 856 (1964); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 158, 75 L.Ed. 374 (1931); Agnello v. United States, 269 U.S. 20, 30-31, 46 S.Ct. 4, 5-6, 70 L.Ed. 145 (1925); United States v. Kirschenblatt, supra.
In the present case, the articles of clothing admitted into evidence are not within any of the traditional categories which describe what materials may be seized, either with or without a warrant. The restrictiveness of these categories has been subjected to telling criticism, and although I believe that we should approach expansion of these categories with the diffidence which their imposing provenance commands, I agree that the use of identifying clothing worn in the commission of a crime and seized during 'hot pursuit' is within the spirit and intendment of the 'hot pursuit' exception to the search-warrant requirement. That is because the clothing is pertinent to identification of the person hotly pursued as being, in fact, the person whose pursuit was justified by connection with the crime. I would frankly place the ruling on that basis. I would not drive an enorou § and dangerous hole in the Fourth Amendment to accommodate a specific and, I think, reasonable exception.
As my Brother DOUGLAS notes, post, opposition to general searches is a fundamental of our heritage and of the history of Anglo-Saxon legal principles. Such searches, pursuant to 'writs of assistance,' were one of the matters over which the American Revolution was fought. The very purpose of the Fourth Amendment was to outlaw such searches, which the Court today sanctions. I fear that in gratuitously striking down the 'mere evidence' rule, which distinguished members of this Court have acknowledged as essential to enforce the Fourth Amendment's prohibition against general searches, the Court today needlessly destroys, root and branch, a basic part of liberty's heritage.
Mr. Justice DOUGLAS, dissenting.

## Notes

* ↑ It is true that this Court has not always been as vigilant as it should to enforce these traditional and extremely important restrictions upon the scope of such searches. See United States v. Rabinowitz, 339 U.S. 56, 68-86, 70 S.Ct. 430, 436-444, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting); Harris v. United States, 331 U.S. 145, 155-198, 67 S.Ct. 1098, 1103-1120, 91 L.Ed. 1399 (1947) (dissenting opinions).
* ↑ See, e.g., People v. Thayer, 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108 (Traynor, C.J.) (1965), cert. denied, 384 U.S. 908, 86 S.Ct. 1342, 16 L.Ed.2d 361 (1966); Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif.L.Rev. 474, 478 (1961).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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