William O. Douglas

“ One would expect a hard-headed system like the common law to recognize exceptions even to the most comprehensive principle for safeguarding liberty. This is true of the prohibition of all searches and seizures as unreasonable unless authorized by a judicial warrant appropriately supported. Such is the exception, historically well recognized, of the right to seize without warrant goods and papers on ships or other moving vehicles. Another exception is the right of searching the person upon arrest. ”

“ The Fourth Amendment does not give freedom from testimonial compulsion. Subject to familiar qualifications every man is under obligation to give testimony. But that obligation can be exacted only under judicial sanctions which are deemed precious to Anglo-American civilization. ”

“ Private papers of an accused cannot be seized even through legal process because their use would violate the prohibition of the Fifth Amendment against self-crimination. So-called public papers-papers in which the public has an interest other than that which they may serve as evidence in a case-may be seized, but like all other things in an individual's possession they can be seized only upon a properly safeguarded search. The amenability of corporate papers to testimonial compulsion means that a corporation, because it is a corporation, cannot make claim to the privilege of self-crimination. ”

“ Prior to the search, the officers had no basis for stating that he was committing the crime of illegal possession of the coupons in their presence.
It is too often felt, though not always avowed, that what is called nice observance of these constitutional safeguards makes apprehension and conviction of violators too difficult. Want of alertness and enterprise on the part of the law enforcers too often is the real obstruction to law enforcement. ”

“ The Fourth Amendment does not differentiate between big and small enterprise. But, in any event, while our economy is extensively carried on through the corporate form, the latest available figures show that of the multitudinous income-reporting corporations only about five per cent have a net income above $100,000. It cannot be that the highly prized Constitutional immunity from police intrusion, as it affects activities that permeate our national life, is now to be curtailed or viewed with laxity. ”

“ The exceptional right to search on arrest does not in any event extend to a search for articles necessary to the commission of a crime other than that for which the arrest was made. The officers could not have made an arrest of Davis for illegal possession of coupons, for which he was later tried, on mere suspicion. That crime, like the others, was only a misdemeanor, and no arrest can be made for a misdemeanor without a warrant unless it be committed in the presence of officers. ”

“ If great principles sometimes appear as finicky obstructions in bringing a criminal to heel, this admonition of a wise judge gives the final answer: 'Such constitutional limitations arise from grievances, real or fancied, which their makers have suffered, and should go pari passu with the supposed evil. ”

“ In cases dealing with the search of the person [5] it is natural to speak of the right to search and seize things 'in his possession' without strict regard to the ambiguous scope of a man's 'possession.' From that, opinions slide readily to including the right to search and seize things 'within the immediate control' of the arrested person, language appropriate enough when applied to goods which the arrested person was transporting at the time. [6] Taken out of their original context, these phrases are used until they are made to include the entire premises [7] in which the arrest takes place. ”

“ Its safeguards are not to be worn away by a process of devitalizing interpretation. The approval given today to what was done by arresting officers in this case indicates that we are in danger of forgetting that the Bill of Rights reflects experience with police excesses. It is not only under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. ”

“ Merely because there may be the duty to make documents available for litigation does not mean that police officers may forcibly or fraudulently obtain them. This protection of the right to be let alone except under responsible judicial complusion of precisely wha the Fourth Amendment meant to express and to safeguard.
An even more fundamental issue lurks in the Court's opinion if a casual but explicit phrase about the locus of the search and seizure as 'a place of business, not a private residence' is intended to carry relevant legal implications. ”

“ But in our democracy such enforcement presupposes a moral atmosphere and a reliance upon intelligence whereby the effective administration of justice can be achieved with due regard for those civilized standards in the use of the criminal law which are formulated in our Bill of Rights. ”

“ This article does not prohibit all searches and seizures of a man's person, papers, and possessions; but such only as are 'unreasonable,' and the foundation of which is 'not previously supported by oath or affirmation.' The legislature were not deprived of the power to authorize search warrants for probable causes, supported by oath or affirmation, and for the punishment or suppression of any violation of law. ”

“ But the essence of the difference is that under appropriate circumstances wholly private papers are not even subject to testimonial compulsion whereas other papers, once they have been legally obtained, are available as evidence. Had the coupons in controversy been secured by a proper search they could be used againt the defendant at the trial. But their character does not eliminate the restrictions of the Fourth Amendment and subject the person in possession of such documents, against his protest, to searches and seizures otherwise unwarranted. ”

“ These are the circumstances that give rise to our problem. For some time operations of the gasoline station owned by Davis under a corporate form had been suspect by the Office of Price Administration. On the day of the questioned seizure, three O.P.A. investigators and two New York City detectives kept watch on the station for several hours. One of the O.P.A. men drove his car to the pumps for gas. After the attendant had filled his tank, he told her, when asked for coupons, that he had none. She then demanded a higher price for the gasoline which he paid with a marked five dollar bill. ”

“ The Court has not been indulgent towards inroads upon the Amendment. Only rarely have its dicta appeared to give undue scope to the right of search on arrest, and Marron v. United States, supra, is the only decision in which the dicta were reflected in the result. That case has been a source of confusion to the lower courts. Thus, the Circuit Court of Appeals for the Second Circuit felt that the Marron case required it to give a more restricted view to the prohibitions of the Fourth Amendment than that court had expounded in United States v. ”

“ We need not decide that that finding is wrong, for we can dispose of the case upon other grounds; but we must own to some doubt whether a consent obtained under such circumstances should properly be regarded as 'voluntary.' Davis must have known, under arrest as he was, that the officers were not likely to stand very long upon ceremony, but in one way or another, would enter the office.' 151 F.2d 140, 142. ”

“ Perhaps so; any community must choose between the impairment of its power to punish crime and such evils as arise from its uncontrolled prosecution. But the danger is not certain, for the officer could have applied for a warrant which-as was at least intimated in Taylor v. United States-might then have been valid. It takes time to break up a still and take the parts away ”

“ We there held that where officers stated that they were revenue officers and requested admission to the premises in order to make a search there was, as a matter of law, 'implied coercion.' Inasmuch 'as conduct under duress involves a choice,' the Fourth Amendment is hardly to be nullified by finding every submission short of overpowering force 'voluntary.' See Union Pac. ”

“ Act of July 24, 1897, 30 Stat. 151, 209 (obscene and immoral articles and literature, contraceptive and abortive materials, lottery tickets) ; Act of March 3, 1899, 30 Stat. 1253, 1326 (embezzled or stolen property; articles used to commit a felony; property to be used to commit a crime) ; Act of March 3, 1901, 31 Stat. 1189, 1337 (stolen or embezzled goods, counterfeit coins, etc. and materials used to make them, literature of obscene nature, immoral articles, gambling equipment, lottery tickets) ”