William J. Brennan, Jr.

“ The same holds true, of course, for 'mere evidence'; the prevention of crime is served at least as much by allowing the Government to identify and capture the criminal, as it is by allowing the seizure of his instrumentalities. Finally, contraband is indeed property in which the Government holds a superior interest, but only because the Government decides to vest such an interest in itself. ”

“ But no such procedure need be followed today; the Government may demonstrate probable cause and lawfully search for stolen property even though the true owner is unknown or unavailable to request and authorize the Government to assert his interest. As to instrumentalities, the Court in Gouled allowed their seizure, not because the Government had some property interest in them (under the ancient, fictitious forfeiture theory) , but because they could be used to perpetrate further crime. ”

“ It is argued that, while the weapons, ammunition, and cap may have been seized in the course of a search for weapons, the officer who seized the clothing was searching neither for the suspect nor for weapons when he looked into the washing machine in which he found the clothing. But even if we assume, although we do not decide, that the exigent circumstances in this case made lawful a search without warrant only for the suspect or his weapons, it cannot be said on this record that the officer who found the clothes in the washing machine was not searching for weapons. ”

“ The survival of the Gouled distinction is attributable more to chance than considered judgment. Legislation has helped perpetuate it. Thus, Congress has never authorized the issuance of search warrants for the seizure of mere evidence of crime. See Davis v. United States, 328 U.S. 582, 606, 66 S.Ct. 1256, 1267, 90 L.Ed. 1453 (dissenting opinion of Mr. Justice Frankfurter) . Even in the Espionage Act of 1917, where Congress for the first time granted general authority for the issuance of search warants, the authority was limited to fruits of crime i nstrumentalities, and certain contraband. ”

“ They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. ”

“ United States, supra. In determining whether someone is a 'person aggrieved by an unlawful search and seizure' we have refused 'to import into the law * * * subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical.' Jones v. ”

“ Where public officials 'unlawfully seize or hold a citizen's realty or chattels, recoverable by appropriate action at law or in equity * * *,' the true owner may 'bring his possessory action to reclaim that which is wrongfully withheld.' Land v. ”

“ People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575, which held in effect that the property issues involved in search and seizure are collateral to a criminal proceeding. [10] The remedial structure finally escaped the bounds of common law property limitations in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, and Gouled v. United States, supra, when it became established that suppression might be sought during a criminal trial, and under circumstances which would not sustain an action in trespass or replevin. ”