# Irvine v. California/Dissent Douglas

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* Opinion of the Court
* Concurring Opinion Clark
* Dissenting Opinions Black Douglas
United States Supreme Court
347 U.S. 128
Irvine v. California
Argued: Nov. 30, 1953. --- Decided: Feb 8, 1954
Mr. Justice DOUGLAS, dissenting.
The search and seizure conducted in this case smack of the police state, not the free America the Bill of Rights envisaged.
The police and their agents first made a key to the home of a suspect. Then they bored a hole in the roof of his house. Using the key they entered the house, installed a microphone, and attached it to a wire which ran through the hole in the roof to a nearby garage where officers listened in relays. Twice more they used the key to enter the house in order to adjust the microphone. First they moved it into the bedroom where the suspect and his wife slept. Next, they put the microphone into the bedroom closet. Then they used the key to enter the house to arrest the suspect. They had no search warrant; but they ransacked the house. Moreover, they examined the suspect's hands under an ultraviolet lamp to see if he had handled betting slips which they had earlier impregnated with fluorescent powder.
The evidence so obtained was used by California to send the suspect, petitioner here, to prison.
What transpired here was as revolting as the abuses arising out of the writs of assistance against which James Otis complained. Otis in his speech against the writs had this to say:
'Now one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and every thing in their way: and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient.'
In those days courts put their sanction behind the unlawful invasion of privacy by issuing the general warrant that permitted unlimited searches. There is no essential difference between that and the action we take today. Today we throw the weight of the Government on the side of the lawless search by affirming a conviction based on evidence obtained by it. Today we compound the grievance against which Otis complained. Not only is privacy invaded. The lawless invasion is officially approved as the means of sending a man to prison.
I protest against this use of unconstitutional evidence. It is no answer that the man is doubtless guilty. The Bill of Rights was designed to protect every accused against practices of the police which history showed were oppressive of liberty. The guarantee against unreasonable searches and seizures contained in the Fourth Amendment was one of those safeguards. In 1914 a unanimous Court decided that officers who obtained evidence in violation of that guarantee could not use it in prosecutions in the federal courts. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Lawless action of the federal police, it said, 'should find no sanction in the judgments of the courts * * *.' Id., 232 U.S. at page 392, 34 S.Ct. at page 344.
The departure from that principle which the Court made in 1949 in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, is part of the deterioration which civil liberties have suffered in recent years. In that case the Court held that evidence obtained in violation of the Fourth Amendment, though inadmissible in federal prosecutions, could be used in prosecutions in the state courts. Mr. Justice Murphy, dissenting, pointed out the peril of that step, Id., 338 U.S. at page 44, 69 S.Ct. at page 1370,
'The conclusion is inescapable that but one remedy exists to deter violations of the search and seizure clause. That is the rule which excludes illegally obtained evidence. Only by exclusion can we impress upon the zealous prosecutor that violation of the Constitution will do him no good. And only when that point is driven home can the prosecutor be expected to emphasize the importance of observing constitutional demands in his instructions to the police.'
Exclusion of evidence is indeed the only effective sanction. If the evidence can be used, no matter how lawless the search, the protection of the Fourth Amendment, to use the words of the Court in the Weeks case, 'might as well be stricken from the Constitution.' 232 U.S., at page 393, 34 S.Ct. at page 344.
The suggestion that the remedy for lawless conduct by the local police is through federal prosecution under the civil rights laws relegates constitutional rights under the Fourth Amendment to a lowly status. An already overburdened Department of Justice, busily engaged in law enforcement, cannot be expected to devote its energies to supervising local police activities and prosecuting police officers, except in rare and occasional instances. And the hostility which such prosecutions have received here (see Screws v. United States, 325 U.S. 91, especially pages 138 et seq., 65 S.Ct. 1031, 1053, 89 L.Ed. 1495) hardly encourages putting the federal prosecutor on the track of state officials who take unconstitutional short cuts in enforcing state laws.
If unreasonable searches and seizures that violate the privacy which the Fourth Amendment protects are to be outlawed, this is the time and the occasion to do it. If police officers know that evidence obtained by their unlawful acts cannot be used in the courts, they will clean their own houses and put an end to this kind of action. But as long as courts will receive the evidence, the police will act lawlessly and the rights of the individual will suffer. We should throw our weight on the side of the citizen and against the lawless police. We should be alert to see that no unconstitutional evidence is used to convict any person in America.
Mr. Justice Murphy, when Attorney General, was responsible for the creation of the Civil Rights Section in the Department of Justice. That was on February 3, 1939. In 1947 Mr. Justice Clark, then Attorney General, reported that the Section had in the eight years of its existence investigated nearly 850 complaints, instituted prosecutions in 178 cases, and obtained the conviction of more than 130 defendants. Clark, A Federal Prosecutor Looks at the Civil Rights Statutes, 47 Col.L.Rev. 175, 181. See also Report of the President's Committee on Civil Rights: To Secure These Rights (1947), pp. 114 et seq.
A more recent account of the work of the Civil Rights Section will be found in Putzel, Federal Civil Rights Enforcement: A Current Appraisal, 99 U. of Pa.L.Rev. 439 (1951). It is there stated that on the average 20 civil rights cases are prosecuted a year, acquittals and convictions being about equally divided. Id., p. 449, n. 43. These figures are confirmed by the Administrative Office of the United States Courts. Records available in that office show the following number of civil rights prosecutions filed in the district courts in the years since 1947:
Fiscal year.1947 1948 1949 1950 1951 1952
More detailed figures are available for the past three fiscal years. The following table shows the number of defendants who actually went to trial, the disposition of their cases, and the sentences imposed on those who were convicted:
sentence.............2.
Average sentence of imprisonment (months) 10.9 16.5 9.
Note: These figures from the Administrative Office include all prosecutions filed and conducted under all of the Sections of the Criminal Code which are usually called Civil Rights Sections, that is, 18 U.S.C. §§ 241-244, 18 U.S.C.A. §§ 241-244. Use of §§ 243 and 244, however, has been very rare, so that most of the figures quoted involve prosecutions under either § 241 or § 242. The figures set out in the second table do not take into account such appellate reversals as may have been entered, and they include only those post-judgment motions in the district court which were disposed of before the end of the fiscal year in question.
The Code provisions in question read as follows:
's 241. Conspiracy against rights of citizens
'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
'If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured-
'They shall be fined not more than $5,000 or imprisoned not more than ten years, or both.
's 242. Deprivation of rights under color of law
'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
's 243. Exclusion of jurors on account of race or color
'No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.
's 244. Discrimination against person wearing uniform of armed forces
'Whoever, being a proprietor, manager, or employee of a theater or other public place of entertainment or amusement in the District of Columbia, or in any Territory, or Possession of the United States, causes any person wearing the uniform of any of the armed forces of the United States to be discriminated against because of that uniform, shall be fined not more than $500.'

## Notes

* ↑ Tudor, Life of James Otis (1823), pp. 66-67.
* ↑ For an analysis of the civil rights suits instituted by the Department of Justice see the Appendix to this opinion.
* ↑ The current hostility towards federal actions-both criminal and civil-under the civil rights laws is further evidenced by United States v. Williams, 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758; Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253; Whittington v. Johnston, 5 Cir., 201 F.2d 810, certiorari denied, 346 U.S. 867, 74 S.Ct. 103; Francis v. Crafts, 1 Cir., 203 F.2d 809, certiorari denied, 346 U.S. 835, 74 S.Ct. 43.
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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