Ker v. California, 374 U.S. 23 (1963)

Author: Justice Harlan

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Ker v. California, 374 U.S. 23 (1963)

MR. JUSTICE HARLAN, concurring in the result.

Heretofore, there has been a well established line of demarcation between the constitutional principles governing the standards for state searches and seizures and those controlling federal activity of this kind. Federal searches and seizures have been subject to the requirement of "reasonableness" contained in the Fourth Amendment, as that requirement has been elaborated over the years in federal litigation. State searches and seizures, on the other hand, have been judged, and in my view properly so, by the more flexible concept of "fundamental" fairness, of rights "basic to a free society," embraced in the Due Process Clause of the Fourteenth Amendment.See Wolf v. Colorado, 338 U.S. 25,27;* cf. Rochin v. California, 342 U.S. 165; Palko v. Connecticut, 302 U.S. 319. Today, this distinction in constitutional principle is abandoned. Henceforth, state searches and seizures are to be judged by the same constitutional standards as apply in the federal system.

In my opinion, this further extension of federal power over state criminal cases, cf. Fay v. Noia, 372 U.S. 391; Douglas v. California, 372 U.S. 353; Draper v. Washington, 372 U.S. 487 -- all decided only a few weeks ago, is quite uncalled for and unwise. It is uncalled for because the States generally, and more particularly California, are increasingly evidencing concern about improving their own criminal procedures, as this Court itself has recently observed on more than one occasion (see Gideon v. Wainwright, 372 U.S. 335, 345; ante, p. 31), and because the Fourteenth Amendment’s requirements of fundamental fairness stand as a bulwark against serious local shortcomings in this field. The rule is unwise because the States, with their differing law enforcement problems, should not be put in a constitutional straitjacket, and also because the States, more likely than not, will be placed in an atmosphere of uncertainty since this Court’s decisions in the realm of search and seizure are hardly notable for their predictability. Cf. Harris v. United States, 331 U.S. 145, 175-181 (Appendix to dissenting opinion of MR. JUSTICE Frankfurter). (The latter point is indeed forcefully illustrated by the fact that in the first application of its new constitutional rule the majority finds itself equally divided.) And if the Court is prepared to relax Fourth Amendment standards in order to avoid unduly fettering the States, this would be in derogation of law enforcement standards in the federal system -- unless the Fourth Amendment is to mean one thing for the States and something else for the Federal Government.

I can see no good coming from this constitutional adventure. In judging state searches and seizures I would continue to adhere to established Fourteenth Amendment concepts of fundamental fairness. So judging this case, I concur in the result.

* Mapp v. Ohio, 367 U.S. 643, did not purport to change the standards by which state searches and seizures were to be judged; rather it held only that the "exclusionary" rule of Weeks v. United States, 232 U.S. 383, was applicable to the States.

1. This contention was initially raised prior to the trial. Section 995, California Penal Code, provides for a motion to set aside the information on the ground that the defendant has been committed without probable cause. Evidence on that issue was presented out of the presence of the jury, and, following the court’s denial of the motion, the petitioners were tried and convicted by the jury.

2. During the hearing on the § 995 motion, seenote 1, supra, Black testified for the defense, admitting that he knew the petitioners but denying that he gave Officer Berman information about George Ker. Black first denied, but then admitted, that he had met with Officer Berman and another officer in whose presence Berman said the information about Ker was given.

3. Arresting Officers Berman and Warthen had been attached to the narcotics detail of the Los Angeles County Sheriff’s office for three and four years, respectively. Each had participated in hundreds of arrests involving marijuana. Warthen testified that, on "many, many occasions" in his experience with narcotics arrests,

persons have flushed narcotics down toilets, pushed them down drains and sinks and many other methods of getting rid of them prior to my entrance. . . .

4. For the reasons discussed in § V of this opinion, we find that the validity of the search of the automobile is not before us and we therefore do not pass on it.


The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

6. "No person . . . shall be compelled in any criminal case to be a witness against himself. . . ."

7. Our holding as to enforceability of this federal constitutional rule against the States had its source in the following declaration in Wolf v. Colorado, 338 U.S. 25, 27-28 (1949):

The security of one’s privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is . . . implicit in "the concept of ordered liberty" and as such enforceable against the States through the Due Process Clause.

8. In Draper, the arrest upon probable cause was authorized under 26 U.S.C. § 7607, authorizing narcotics agents to make an arrest without warrant if they have "reasonable grounds to believe that the person to be arrested has committed or is committing such violation." Under § 836, California Penal Code, an officer may arrest without a warrant if he has "reasonable cause to believe that the person to be arrested has committed a felony. . . ."


To make an arrest, . . . in all cases a peace officer, may break open the door or window of the house in which the person to be arrested is, or in which . . . [he has] reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.


The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

11. Nor has the Court rejected the proposition that noncompliance may be reasonable in exigent circumstances subsequent to Miller. In Wong Sun v. United States, 371 U.S. 471 (1963), the Court held that federal officers had not complied with § 3109 in executing an arrest . There, the Court noted that, in Miller, it had reserved the question of an exception in exigent circumstances and stated that,

[h]ere, as in Miller, the Government claims no extraordinary circumstances -- such as the imminent destruction of vital evidence, or the need to rescue a victim in peril -- . . . which excused the officer’s failure truthfully to state his mission before he broke in.

Id. at 483-484.

12. A search of the record with the aid of hindsight may lend some support to the conclusion that, contra the reasonable belief of the officers, petitioners may not have been prepared for an imminent visit from the police. It goes without saying that, in determining the lawfulness of entry and the existence of probable cause, we may concern ourselves only with what the officers had reason to believe at the time of their entry.Johnson v. United States, 333 U.S. 10, 17 (1948). As the Court said in United States v. Di Re, 332 U.S. 581, 595 (1948), "a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from" what is dug up subsequently. (Emphasis added.)

13. In cases in which a search could not be regarded as incident to arrest because the petitioner was not present at the time of the entry and search, the absence of compelling circumstances, such as the threat of destruction of evidence, supported the Court’s holdings that searches without warrants were unconstitutional. See Chapman v. United States, 365 U.S. 610, 615 (1961); United States v. Jeffers, 342 U.S. 48, 52 (1951); Taylor v. United States, 286 U.S. 1, 5 (1932).

14. Compare Johnson v. United States,note 12, supra, at 40. There, the Court held that a search could not be justified as incident to arrest, since the officers, prior to their entry into a hotel room, had no probable cause for the arrest of the occupant. The Court stated that

[a]n officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion.

Here, of course, probable cause for the arrest of petitioner George Ker provided that valid basis.

15. The record shows that petitioners made no objection to the admission of any of the evidence, thus failing to observe a state procedural requirement. People v. Brittain, 149 Cal.App.2d 201, 308 P.2d 38 (1957); see Mapp v. Ohio, supra, at 659, n. 9. However, the District Court of Appeal passed on the issue of the narcotics seized in the apartment, presumably on the ground that petitioners preserved that question by their motion under § 995, California Penal Code, which was directed toward the principal objection to that search -- the alleged lack of probable cause. While "[t]here can be no question as to the proper presentation of a federal claim when the highest state court passes on it," Raley v. Ohio, 360 U.S. 423, 436(1959), there is no indication in the court’s opinion that it passed on the issue of the search of the automobile, nor is there any indication in the petitioners’ briefs in that court that the issue was presented.


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Chicago: Harlan, "Harlan, J., Concurring," Ker v. California, 374 U.S. 23 (1963) in 374 U.S. 23 374 U.S. 45–374 U.S. 46. Original Sources, accessed March 25, 2019,

MLA: Harlan. "Harlan, J., Concurring." Ker v. California, 374 U.S. 23 (1963), in 374 U.S. 23, pp. 374 U.S. 45–374 U.S. 46. Original Sources. 25 Mar. 2019.

Harvard: Harlan, 'Harlan, J., Concurring' in Ker v. California, 374 U.S. 23 (1963). cited in 1963, 374 U.S. 23, pp.374 U.S. 45–374 U.S. 46. Original Sources, retrieved 25 March 2019, from