# Abel v. United States/Dissent Brennan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Brennan
United States Supreme Court
362 U.S. 217
Abel v. United States
Argued: Nov. 9, 1959. --- Decided: March 28, 1960
Mr. Justice BRENNAN, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
This is a notorious case, with a notorious defendant. Yet we must take care to enforce the Constitution without regard to the nature of the crime or the nature of the criminal. The Fourth Amendment protects 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' This right is a basic one of all the people, without exception; and this Court ruled in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, that the fruits of governmental violation of this guarantee could not be used in a criminal prosecution. The Amendment's protection is thus made effective for everyone only by upholding it when invoked by the worst of men.
The opinion of the Court makes it plain that the seizure of certain of the items of petitioner taken from his room at the Hotel Latham and used in evidence against him must depend upon the existence of a broad power, without a warrant, to search the premises of one arrested, in connection with and 'incidental' to his arrest. This power is of the sort recognized by Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and later asserted even where the arresting officers, as here, had ample time and opportunity to secure a search warrant. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, overruling Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663. The leading early cases do not recognize any such power to make a search generally through premises attendant upon an arrest. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877.
The general question has been extensively canvassed here, in the general context of an arrest for crime, in the Harris, Trupiano and Rabinowitz cases. Whether Harris and Rabinowitz should now be followed on their own facts is a question with which the Court is not now faced. Rather the question is whether the doctrine of those cases should be extended to a new and different set of facts-facts which present a search made under circumstances much less consistent with the Fourth Amendment's prohibition against unreasonable searches than any which this Court has hitherto approved. Factual differences weigh heavily in this area: 'There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.' Go-Bart Importing Co. v. United States, supra, 282 U.S. at page 357, 51 S.Ct. at page 158. In Harris and Rabinowitz, the broad search was performed as an incident to an arrest for crime under warrants lawfully issued. 331 U.S. at page 148, 67 S.Ct. at page 1100; 339 U.S. at page 58, 70 S.Ct. at page 431. The issuance of these warrants is by no means automatic-it is controlled by a constitutionally prescribed standard. It thus could be held that sufficient protection was given the individual without the execution of a second warrant for the search. Cf. Clark, J., dissenting in United States v. Rabinowitz, 2 Cir., 176 F.2d 732, 736, reversed 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. And while a search generally through premises 'incident' to an arrest for crime without a warrant has been sanctioned only inferentially here, even if such a search be deemed permissible under the Fourth Amendment, it would not go so far as the result here. Such an arrest may constitutionally be made only upon probable cause, the existence of which is subject to judicial examination, see Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 169, 4 L.Ed.2d 134, and such an arrest demands the prompt bringing of the person arrested before a judicial officer, where the existence of probable cause is to be inquired into. Fed.Rules Crim.Proc., 5(a) and (c), 18 U.S.C.A. This Court has been astute to fashion methods of ensuring the due observance of these safeguards. Henry v. United States, supra; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.
Even assuming that the power of Congress over aliens may be as great as was said in Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911, and that deportation may be styled 'civil,' Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586, it does not follow that Congress may strip aliens of the protections of the Fourth Amendment and authorize unreasonable searches of their premises, books and papers. Even if Congress could make the exclusionary sanction of the Amendment inapplicable in deportation proceedings, the fruits of the search here were used in a prosecution whose criminal character no dialectic can conceal. Clearly the consequence of the Fourth Amendment in such a trial is that the fruits of such a search may not be given in evidence, under the rule declared in Weeks v. United States, supra. We need not, in my view, inquire as to whether the sort of 'administrative' arrest made here is constitutionally valid as to permit the officers to hold petitioner's person for deportation proceedings. With the Court, this issue may be treated as not properly before us for our consideration, and the arrest may be treated for the purposes of this case as lawful in itself. But even with Harris and Rabinowitz, that does not conclude the matter as to the search. It is patent that the sort of search permitted by those cases, and necessary to sustain the seizures here, goes beyond what is reasonably related to the mechanics of the arrest itself-ensuring the safety of the arresting officers and the security of the arrest against the prisoner's escape. Since it does, I think it plain that before it can be concluded here that the search was not an unreasonable one, there must be some inquiry into the over-all protection given the individual by the totality of the processes necessary to the arrest and the seizure. Here the arrest, while had on what is called a warrant, was made totally without the intervention of an independent magistrate; it was made on the authorization of one administrative official to another. And after the petitioner was taken into custody, there was no obligation upon the administrative officials who arrested him to take him before any independent officer, sitting under the conditions of publicity that characterize our judicial institutions, and justify what had been done. Concretely, what happened instead was this: petitioner, upon his arrest, was taken to a local administrative headquarters and then flown in a special aircraft to a special detention camp over 1,000 miles away. He was incarcerated in solitary confinement there. As far as the world knew, he had vanished. He was questioned daily at the place of incarceration for over three weeks. An executive procedure as to his deportability was had, at the camp, after a few days, but there was never any independent inquiry or judicial control over the circumstances of the arrest and the seizure till over five weeks after his arrest, when, at the detention camp, he was served with a bench warrant for his arrest on criminal charges, upon an indictment.
The Fourth Amendment imposes substantive standards for searches and seizures; but with them one of the important safeguards it establishes is a procedure; and central to this procedure is an independent control over the actions of officers effecting searches of private premises. 'Indeed, the informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests.' United State v. Lefkowitz, supra, 285 U.S. at page 464, 52 S.Ct. at page 423. 'Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.' McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 193, 93 L.Ed. 153. It is one thing to say that an adequate substitude for this sort of intervention by a magistrate can be found in the strict protections with which federal criminal procedure surrounds the making of a criminal arrest-where the action of the officers must receive an antecedent or immediately subsequent independent scrutiny. It goes much further to say that such a substitute can be found in the executive processes employed here. The question is not whether they are constitutionally adequate in their own terms-whether they are a proper means of taking into custody one not charged with crime. The question is rather whether they furnish a context in which a search generally through premises can be said to be a reasonable one under the Fourth Amendment. These arrest procedures, as exemplified here, differ as night from day from the processes of an arrest for crime. When the power to make a broad, warrantless search is added to them, we create a complete concentration of power in executive officers over the person and effects of the individual. We completely remove any independent control over the powers of executive officers to make searches. They may take any man they think to be a deportable alien into their own custody, hold him without arraignment or bond, and, having been careful to apprehend him at home, make a search generally through his premises. I cannot see how this can be said to be consistent with the Fourth Amendment's command; it was, rather, against such a concentration of executive power over the privacy of the individual that the Fourth Amendment was raised. I do not think the Harris and Rabinowitz cases have taken us to this point.
If the search here were of the sort the Fourth Amendment contemplated, there would be no need for the elaborate, if somewhat pointless, inquiry the Court makes into the 'good faith' of the arrest. Once it is established that a simple executive arrest of one as a deportable alien gives the arresting offices the power to search his premises, what precise state of mind on the part of the officers will make the arrest a 'subterfuge' for the start of criminal proceedings, and render the search unreasonable? We are not, I fear, given any workable answer, and of course the practical problems relative to the trial of such a matter hardly need elaboration; but the Court verbalizes the issue as 'whether the decision to proceed administratively toward deportation was influenced by, and was carried out for, a purpose of amassing evidence in the prosecution for crime.' But under today's ruling, every administrative arrest offers this possibility of a facile search, theoretically for things connected with unlawful presence in the country, that may turn up evidence of crime; and this possibility will be well known to arresting officers. Perhaps the question is how much basis the officers had to suspect the person of crime; but it would appear a strange test as to whether a search which turns up criminal evidence is unreasonable, that the search is the more justifiable the less there was antecedent probable cause to suspect the defendant of crime. If the search were made on a valid warrant, there would be no such issue even if it turned up matter relevant to another crime. See Gouled v. United States, 255 U.S. 298, 311-312, 41 S.Ct. 261, 265-266, 65 L.Ed. 647. External procedural control in accord with the basic demands of the Fourth Amendment removes the grounds for abuse; but the Court's attitude here must be based on a recognition of the great possibilities of abuse its decision leaves in the present situation. These possibilities have been recognized before, in a case posing less danger: '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 well-known in this country. * * * The progress is too easy from police action unscrutinized by judicial authorization to the police state.' United States v. Rabinowitz, supra, 339 U.S. at page 82, 70 S.Ct. at page 442, 94 L.Ed. 653 (dissenting opinion). Where a species of arrest is available that is subject to no judicial control, the possibilities become more and more serious. The remedy is not to invite fruitless litigation into the purity of official motives, or the specific direction of official purposes. One may always assume that the officers are zealous to perform their duty. The remedy is rather to recognize that the power to perform a search generally throughout premises upon a purely executive arrest is so unconfined by any safeguards that it cannot be countenanced as consistent with the Fourth Amendment.
One more word. We are told that the governmental power to make a warrantless search might be greater where the object of the search is not related to crime but to some other 'civil' proceeding-such as matter bearing on the issue whether a man should forcibly be sent from the country. The distinction is rather hollow here, where the proofs that turn up are in fact given in evidence in a criminal prosecution. And the distinction, again, invites a trial of the officers' purposes. But in any event, I think it perverts the Amendment to make this distinction. The Amendment states its own purpose, the protection of the privacy of the individual and of his property against the incursions of officials: the 'right of the people to be secure in their persons, houses, papers, and effects.' See Boyd v. United States, 116 U.S. 616, 627, 6 S.Ct. 524, 530, 538, 29 L.Ed. 746. Like most of the Bill of Rights it was not designed to be a shelter for criminals, but a basic protection for everyone; to be sure, it must be upheld when asserted by criminals, in order that it may be at all effective, but it 'reaches all alike, whether accused of crime or not.' Weeks v. United States, supra, 232 U.S. at page 392, 34 S.Ct. at page 344, 58 L.Ed. 652. It is the individual's interest in privacy which the Amendment protects, and that would not appear to fluctuate with the 'intent' of the invading officers. It is true that the greatest and most effective preventive against unlawful searches that has been devised is the exclusion of their fruits from criminal evidence, see Weeks v. United States, supra; Boyd v. United States, supra; but it is strange reasoning to infer from this that the central thrust of the guarantee is to protect against a search for such evidence. The argument that it is seems no more convincing to me now than when it was made by the Court in Frank v. State of Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877. To be sure, the Court in Boyd v. United States, supra, and in subsequent cases has commented upon the intimate relationship between the privilege against unlawful searches and seizures and that against self-incrimination. This has been said to be erroneous history; if it was, it was even less than a harmless error; it was part of the process through which the Fourth Amendment, by means of the exclusionary rule, has become more than a dead letter in the federal courts. Certainly this putative relationship between the guarantees is not to be used as a basis of a stinting construction of either-it was the Boyd case itself which set what might have been hoped to be the spirit of later construction of these Amendments by declaring that the start of abuse can 'only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.' 116 U.S. at page 635, 6 S.Ct. at page 535.
Since evidence was introduced against petitioner which had been obtained in violation of his constitutional guarantees as embodied in the Fourth Amendment, I would reverse his conviction for a new trial on the evidence not subject to this objection.

## Notes

* ↑ Earlier expressions looking the other way, Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145; Marron v. United States, 275 U.S. 192, 198-199, 48 S.Ct. 74, 76 77, 72 L.Ed. 231, were put in proper perspective by their author in Go-Bart and Lefkowitz. See 282 U.S. at page 358, 51 S.Ct. at page 158; 285 U.S. at page 465, 52 S.Ct. at page 423.
* ↑ See United States v. Rabinowitz, supra, 339 U.S. at page 60, 70 S.Ct. at page 432.
* ↑ This procedure is statutorily based on § 242(a) of the Immigration and Nationality Act of 1952, 66 Stat. 208, 8 U.S.C. § 1252(a), 8 U.S.C.A. § 1252(a).
* ↑ See, e.g., Gouled v. United States, supra, 255 U.S. at page 306, 41 S.Ct. at page 263; United States v. Lefkowitz, supra, 285 U.S. at pages 466-467, 52 S.Ct. at pages 423-424, 76 L.Ed. 877. The Weeks case itself, though drawing great support from Boyd, appears to rest most heavily on the Fourth Amendment itself.
* ↑ The famous attack on the Boyd case's historical basis is, of course, to be found in 8 Wigmore, Evidence (3d ed. 1940), §§ 2184, 2264. The attack is incident to Wigmore's strictures on the exclusionary rule. Id., §§ 2183-2184.
* ↑ It is not without interest to note, too, that the Boyd case itself involved a search not in connection with a prosecution to impose fine or imprisonment, but simply with an action to forfeit 35 cases of plate glass said to have been imported into the country under a false customs declaration.
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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