# Irvine v. California/Dissent Black

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* 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 BLACK, with whom Mr. Justice DOUGLAS concurs, dissenting.
I would reverse this conviction because the petitioner Irvine was found guilty of a crime and sentenced to prison on evidence extorted from him by the Federal Government in violation of the Fifth Amendment.
Federal law makes it a crime punishable by fine, imprisonment, or both, for a person to run a gambling business without making a report to the Government and buying a federal wagering tax stamp, both of which reveal his gambling operations. Petitioner made the necessary report of his gambling activities in California and bought the required tax stamp. The information he gave and the stamp he bought were used in this case to convict and sentence him to prison for violating California's antigambling law. For reasons given in my dissent in United States v. Kahriger, 345 U.S. 22, 36, 73 S.Ct. 510, 517, 97 L.Ed. 754, I believe the federal law that extracted the disclosures and required the tax stamp violates the Fifth Amendment's command that a person shall not be compelled to be a witness against himself. But even though the law is valid, as the Court held, use of such forced confessions to convict the confessors still amounts to compelling a person to testify against himself in violation of the Fifth Amendment.
I cannot agree that the Amendment's guarantee against self-incrimination testimony can be spirited away by the ingenious contrivance of using federally extorted confessions to convict of state crimes and vice versa. Licensing such easy evasion of the Amendment has proven a heavy drain on its vitality although no such debilitating interpretation was given the Amendment by this Court until it decided United States v. Murdock in 1931, one hundred and forty years after the Bill of Rights was adopted. That construction was rested on the premise that a state and the United States are so separate and foreign to one another that neither of them need protect witnesses against being forced to admit offenses against the laws of the other. This treatment of the states and the Federal Government as though they were entirely foreign to each other is wholly conceptualistic and cannot justify such a narrow interpretation of the Fifth Amendment's language and the resulting frustration of its purpose.
I think the Fifth Amendment of itself forbids all federal agents, legislative, executive and judicial, to force a person to confess a crime; forbids the use of such a federally coerced confession in any court, state or federal; and forbids all federal courts to use a confession which a person has been compelled to make against his will.
The Fifth Amendment forbids the Federal Government and the agents through which it acts-courts, grand juries, prosecutors, marshals or other officers-to use physical torture, psychological pressure, threats of fines, imprisonment or prosecution, or other governmental pressure to force a person to testify against himself. And if the Federal Government does extract incriminating testimony, as the Court has held it may in compelling gamblers to confess, the immunity provided by the Amendment should at the very least prevent the use of such testimony in any court, federal or state. The use of such testimony is barred, even though the Fifth Amendment may not of itself prohibit the states or their agents from extorting incriminating testimony. The Amendment does plainly prohibit all federal agencies from using their power to force self-incriminatory statements. Consequently, since the Amendment is the supreme law of the land and is binding on all American judges, the use of federally coerced testimony to convict a person of crime in any court, state or federal, is forbidden.
The Fifth Amendment not only forbids agents of the Federal Government to compel a person to be a witness against himself; it forbids federal courts to convict persons on their own forced testimony, whatever 'sovereign'-federal or state-may have compelled it. Otherwise, the constitutional mandate against self-incrimination is an illusory safeguard that collapses whenever a confession is extorted by anyone other than the Federal Government.
Though not essential to disposition of this case, it seems appropriate to add that I think the Fourteenth Amendment makes the Fifth Amendment applicable to states and that state courts like federal courts are therefore barred from convicting a person for crime on testimony which either state or federal officers have compelled him to give against himself. The construction I give to the Fifth and Fourteenth Amendments makes it possible for me to adhere to what we said in Ashcraft v. State of Tennessee, 322 U.S. 143, 155, 64 S.Ct. 921, 927, 88 L.Ed. 1192, that 'The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession.'
So far as this case is concerned it is enough for me that Irvine was convicted in a state court on a confession coerced by the Federal Government. I believe this frustrates a basic purpose of the Fifth Amendment-to free Americans from fear that federal power could be used to compel them to confess conduct or beliefs in order to take away their life, liberty or property. For this reason I would reverse Irvine's conviction.
It has been suggested that the Court should call on the Attorney General to investigate this record in order to start criminal prosecutions against certain California officers. I would strongly object to any such action by this Court. It is inconsistent with my own view of the judicial function in our government. Prosecution, or anything approaching it, should, I think, be left to government officers whose duty that is.
Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dissenting.
Mere failure to have an appropriate warrant for arrest or search, without aggravating circumstances of misconduct in obtaining evidence, invalidates a federal conviction helped by such an unreasonable search and seizure. Such was the construction placed upon the Fourth Amendment by Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. But Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, held that the rule of the Weeks case was not to be deemed part of the Due Process Clause of the Fourteenth Amendment and hence was not binding upon the States. Still more recently, however, in Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, the Court held that 'stomach pumping' to obtain morphine capsules, later used as evidence in a trial, was offensive to prevailing notions of fairness in the conduct of a prosecution and therefore invalidated a resulting conviction as contrary to the Due Process Clause.
The comprehending principle of these two cases is at the heart of 'due process.' The judicial enforcement of the Due Process Clause is the very antithesis of a Procrustean rule. In its first full-dress discussion of the Due Process Clause of the Fourteenth Amendment, the Court defined the nature of the problem as a 'gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. The series of cases whereby, in the light of this attitude, the scope of the Due Process Clause has been unfolded is the most striking, because the liveliest, manifestation of the wide and deep areas of law in which adjudication 'depends upon differences of degree. The whole law does so as soon as it is civilized.' Holmes, J., concurring in LeRoy Fibre Co. v. Chicago, M. & St. P.R. Co., 232 U.S. 340, 354, 34 S.Ct. 415, 418, 58 L.Ed. 631. It is especially true of the concept of due process that between the differences of degree which that inherently undefinable concept entails 'and the simple universality of the rules in the Twelve Tables, or the Leges Barbarorum, there lies the culture of two thousand years.' Ibid.
In the Wolf case, the Court rejected one absolute. In Rochin, it rejected another.
In holding that not all conduct which by federal law is an unreasonable search and seizure vitiates a conviction in connection with which it transpires, Wolf did not and could not decide that as long as relevant evidence adequately supports a conviction, it is immaterial how such evidence was acquired. For the exact holding of that case is defined by the question to which the opinion addressed itself: 'Does a conviction by a State court for a State offense deny the 'due process of law' required by the Fourteenth Amendment, solely because evidence that was admitted at the trial was obtained under circumstances which would have rendered it inadmissible in a prosecution for violation of a federal law in a court of the United States because there deemed to be an infraction of the Fourth Amendment as applied in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652?' (338 U.S. 25, 69 S.Ct. 1360.) Thus, Wolf did not change prior applications of the requirements of due process, whereby this Court considered the whole course of events by which a conviction was obtained and was not restricted to consideration of the trustworthiness of the evidence.
Rochin decided that the Due Process Clause of the Fourteenth Amendment does not leave States free in their prosecutions for crime. The Clause puts limits on the wide discretion of a State in the process of enforcing its criminal law. The holding of the case is that a State cannot resort to methods that offend civilized standards of decency and fairness. The conviction in the Rochin case was found to offend due process not because evidence had been obtained through an unauthorized search and seizure or was the fruit of compulsory self-incrimination. Neither of these concepts, relevant to federal prosecutions, was invoked by the Court in Rochin, so of course the Wolf case was not mentioned. While there is in the case before us, as there was in Rochin, an element of unreasonable search and seizure, what is decisive here, as in Rochin, is additional aggravating conduct which the Court finds repulsive.
Thus, the basis on which this case should be adjudicated is laid down in Rochin: 'Regard for the requirements of the Due Process Clause 'inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings (resulting in a conviction) in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses." 342 U.S., at page 169, 72 S.Ct. at page 208, quoting from Malinski v. People of State of New York, 324 U.S. 401, at pages 416-417, 65 S.Ct. 781, at pages 788-789, 89 L.Ed. 1029.
This brings us to the specific circumstances of this case. This is a summary of the conduct of the police:
(1) They secretly made a key to the Irvines' front door.
(2) By boring a hole in the roof of the house and using the key they had made to enter, they installed a secret microphone in the Irvine house with a listening post in a neighboring garage where officers listened in relays.
(3) Using their key, they entered the house twice again to move the microphone in order to cut out interference from a fluorescent lamp. The first time they moved in into Mr. and Mrs. Irvine's bedroom, and later into their bedroom closet.
(4) Using their key, they entered the house on the night of the arrest and in the course of the arrest made a search for which they had no warrant.
There was lacking here physical violence, even to the restricted extent employed in Rochin. We have here, however, a more powerful and offensive control over the Irvines' life than a single, limited physical trespass. Certainly the conduct of the police here went far beyond a bare search and seizure. The police devised means to hear every word that was said in the Irvine household for more than a month. Those affirming the conviction find that this conduct, in its entirety, is 'almost incredible if it were not admitted.' Surely the Court does not propose to announce a new absolute, namely, that even the most reprehensible means for securing a conviction will not taint a verdict so long as the body of the accused was not touched by State officials. Considering the progress that scientific devices are making in extracting evidence without violence or bodily harm, satisfaction of due process would depend on the astuteness and subtlety with which the police engage in offensive practices and drastically invade privacy without authority of law. In words that seem too prophetic of this case, it has been said that '(d)iscovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.' Brandeis, J., dissenting in Olmstead v. United States, 277 U.S. 438, 473, 48 S.Ct. 564, 570, 72 L.Ed. 944.
The underlying reasoning of Rochin rejected the notion that States may secure a conviction by any form of skulduggery so long as it does not involve physical violence. The cases in which coercive or physical infringements of the dignity and privacy of the individual were involved were not deemed 'sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend 'a sense of justice." 342 U.S., at page 173, 72 S.Ct. at page 210.
Since due process is not a mechanical yardstick, it does not afford mechanical answers. In applying the Due Process Clause judicial judgment is involved in an empiric process in the sense that results are not predetermined or mechanically ascertainable. But that is a very different thing from conceiving the results as ad hoc decisions in the opprobrious sense of ad hoc. Empiricism implies judgment upon variant situations by the wisdom of experience. Ad hocness in adjudication means treating a particular case by itself and not in relation to the meaning of a course of decisions and the guides they serve for the future. There is all the difference in the world between disposing of a case as though it were a discrete instance and recognizing it as part of the process of judgment, taking its place in relation to what went before and further cutting a channel for what is to come.
The effort to imprison due process within tidy categories misconceives its nature and is a futile endeavor to save the judicial function from the pains of judicial judgment. It is pertinent to recall how the Court dealt with this craving for unattainable certainty in the Rochin case:
'The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of our judicial process. See Cardozo, The Nature of the Judicial Process; The Growth of the Law; The Paradoxes of Legal Science. These are considerations deeply rooted in reason and in the compelling traditions of the legal profession. The Due Process Clause places upon this Court the duty of exercising a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions.' 342 U.S., at pages 170-171, 72 S.Ct. at page 208.
Nor can we dispose of this case by satisfying ourselves that the defendant's guilt was proven by trustworthy evidence and then finding, or devising, other means whereby the police may be discouraged from using illegal methods to acquire such evidence.
This Court has rejected the notion that because a conviction is established on incontestable proof of guilt it may stand, no matter how the proof was secured. Observance of due process has to do not with questions of guilt or innocence but the mode by which guilt is ascertained. Mere errors of law in the conduct of State trials afford no basis for relief under the Fourteenth Amendment, and a wide swath of discretion must be left to the State Courts in such matters. But when a conviction is secured by methods which offend elementary standards of justice, the victim of such methods may invoke the protection of the Fourteenth Amendment because that Amendment guarantees him a trial fundamentally fair in the sense in which that idea is incorporated in due process. If, as in Rochin, '(o)n the facts of this case the conviction of the petitioner has been obtained by methods that offend the Due Process Clause', 342 U.S., at page 174, 72 S.Ct. at page 210, it is no answer to say that the offending policemen and prosecutors who utilize outrageous methods should be punished for their misconduct.
Of course it is a loss to the community when a conviction is overturned because the indefensible means by which it was obtained cannot be squared with the commands of due process. A new trial is necessitated, and by reason of the exclusion of evidence derived from the unfair aspects of the prior prosecution a guilty defendant may escape. But the people can avoid such miscarriages of justice. A sturdy, self-respecting democratic community should not put up with lawless police and prosecutors. 'Our people may tolerate many mistakes of both intent and performance, but, with unerring instinct, they know that when any person is intentionally deprived of his constitutional rights those responsible have committed no ordinary offense. A crime of this nature, if subtly encouraged by failure to condemn and punish, certainly leads down the road to totalitarianism.'

## Notes

* ↑ 65 Stat. 529. 26 U.S.C.(Supp. V) §§ 3285, 3287, 26 U.S.C.A. §§ 3285, 3287.
* ↑ See my dissent in Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408.
* ↑ 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, and see United States v. Saline Bank of Virginia, 1 Pet. 100, 7 L.Ed. 69; Brown v. Walker, 161 U.S. 591, 606, 608, 16 S.Ct. 644, 650, 651, 40 L.Ed. 819; Ballmann v. Fagin, 200 U.S. 186, 26 S.Ct. 212, 50 L.Ed. 433; Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560; United States v. Murdock, 290 U.S. 389, 396, 54 S.Ct. 223, 226, 78 L.Ed. 381.
* ↑ Reliance for this view was placed mainly on two English cases, King of the Two Sicilies v. Willcox, 7 State Trials (N.S.) 1050, and Queen v. Boyes, 1 B. & S. 311. 284 U.S., at page 149, 52 S.Ct. at page 64. See discussion of these two cases as related to the Fifth Amendment privilege against self-incrimination in Grant, Immunity from Compulsory Self-Incrimination, 9 Temp.L.Q. 57-70 and 194-212, particularly 59-62 and 196-204.
* ↑ Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110.
* ↑ See Barron, for Use of Tiernan v. Mayor and City Council of City of Baltimore, 7 Pet. 243, 8 L.Ed. 672.
* ↑ Adamson v. People of State of California, 332 U.S. 46, 68, 67 S.Ct. 1672, 1684, 91 L.Ed. 1903 (dissenting opinion); Rochin v. People of California, 342 U.S. 165, 174, 72 S.Ct. 205, 210, 96 L.Ed. 183 (concurring opinion).
* ↑ That the prosecution in this case, with the sanction of the courts, flouted a legislatively declared philosophy against such miscreant conduct and made it a policy merely on paper, does not make the conduct any the less a disregard of due process. Cf. Rochin v. People of California, supra, 342 U.S. at page 167, 72 S.Ct. at page 207.
* ↑ Statement by Director J. Edgar Hoover of the Federal Bureau of Investigation in FBI Law Enforcement Bulletin, September 1952, p. 1.
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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