Coolidge v. New Hampshire, 403 U.S. 443 (1971)
MR. JUSTICE STEWART delivered the opinion of the Court.*
We are called upon in this case to decide issues under the Fourth and Fourteenth Amendments arising in the context of a state criminal trial for the commission of a particularly brutal murder. As in every case, our single duty is to determine the issues presented in accord with the Constitution and the law.
Pamela Mason, a 14-year-old girl, left her home in Manchester, New Hampshire, on the evening of January 13, 1964, during a heavy snowstorm, apparently in response to a man’s telephone call for a babysitter. Eight days later, after a thaw, her body was found by the side of a major north-south highway several miles away. She had been murdered. The event created great alarm in the area, and the police immediately began a massive investigation.
On January 28, having learned from a neighbor that the petitioner, Edward Coolidge, had been away from home on the evening of the girl’s disappearance, the police went to his house to question him. They asked him, among other things, if he owned any guns, and he produced three, two shotguns and a rifle. They also asked whether he would take a lie detector test concerning his account of his activities on the night of the disappearance. He agreed to do so on the following Sunday, his day off. The police later described his attitude on the occasion of this visit as fully "cooperative." His wife was in the house throughout the interview.
On the following Sunday, a policeman called Coolidge early in the morning and asked him to come down to the police station for the trip to Concord, New Hampshire, where the lie detector test was to be administered. That evening, two plainclothes policemen arrived at the Coolidge house, where Mrs. Coolidge was waiting with her mother-in-law for her husband’s return. These two policemen were not the two who had visited the house earlier in the week, and they apparently did not know that Coolidge had displayed three guns for inspection during the earlier visit. The plainclothesmen told Mrs. Coolidge that her husband was in "serious trouble," and probably would not be home that night. They asked Coolidge’s mother to leave, and proceeded to question Mrs. Coolidge. During the course of the interview, they obtained from her four guns belonging to Coolidge, and some clothes that Mrs. Coolidge thought her husband might have been wearing on the evening of Pamela Mason’s disappearance.
Coolidge was held in jail on an unrelated charge that night, but he was released the next day.{1} During the ensuing two and a half weeks, the State accumulated a quantity of evidence to support the theory that it was he who had killed Pamela Mason. On February 19, the results of the investigation were presented at a meeting between the police officers working on the case and the State Attorney General, who had personally taken charge of all police activities relating to the murder, and was later to serve as chief prosecutor at the trial. At this meeting, it was decided that there was enough evidence to justify the arrest of Coolidge on the murder charge and a search of his house and two cars. At the conclusion of the meeting, the Manchester police chief made formal application, under oath, for the arrest and search warrants. The complaint supporting the warrant for a search of Coolidge’s Pontiac automobile, the only warrant that concerns us here, stated that the affiant
has probable cause to suspect and believe, and does suspect and believe, and herewith offers satisfactory evidence, that there are certain objects and things used in the Commission of said offense, now kept, and concealed in or upon a certain vehicle, to-wit: 1951 Pontiac two-door sedan. . . .
The warrants were then signed and issued by the Attorney General himself, acting as a justice of the peace. Under New Hampshire law in force at that time, all justices of the peace were authorized to issue search warrants. N.H.Rev.Stat.Ann. § 595:1 (repealed 1969).
The police arrested Coolidge in his house on the day the warrant issued. Mrs. Coolidge asked whether she might remain in the house with her small child, but was told that she must stay elsewhere, apparently in part because the police believed that she would be harassed by reporters if she were accessible to them. When she asked whether she might take her car, she was told that both cars had been "impounded," and that the police would provide transportation for her. Some time later, the police called a towing company, and, about two and a half hours after Coolidge had been taken into custody, the cars were towed to the police station. It appears that, at the time of the arrest, the cars were parked in the Coolidge driveway, and that, although dark had fallen, they were plainly visible both from the street and from inside the house where Coolidge was actually arrested. The 1951 Pontiac was searched and vacuumed on February 21, two days after it was seized, again a year later, in January, 1965, and a third time in April, 1965.
At Coolidge’s subsequent jury trial on the charge of murder, vacuum sweepings, including particles of gun powder, taken from the Pontiac were introduced in evidence against him, as part of an attempt by the State to show by microscopic analysis that it was highly probable that Pamela Mason had been in Coolidge’s car.{2} Also introduced in evidence was one of the guns taken by the police on their Sunday evening visit to the Coolidge house -- a .22-caliber Mossberg rifle, which the prosecution claimed was the murder weapon. Conflicting ballistics testimony was offered on the question whether the bullets found in Pamela Mason’s body had been fired from this rifle. Finally, the prosecution introduced vacuum sweepings of the clothes taken from the Coolidge house that same Sunday evening, and attempted to show through microscopic analysis that there was a high probability that the clothes had been in contact with Pamela Mason’s body. Pretrial motions to suppress all this evidence were referred by the trial judge to the New Hampshire Supreme Court, which ruled the evidence admissible. 106 N.H. 186, 208 A.2d 322. The jury found Coolidge guilty, and he was sentenced to life imprisonment. The New Hampshire Supreme Court affirmed the judgment of conviction, 109 N.H. 403, 260 A.2d 547, and we granted certiorari to consider the constitutional questions raised by the admission of this evidence against Coolidge at his trial. 399 U.S. 926.
I
The petitioner’s first claim is that the warrant authorizing the seizure and subsequent search of his 1951 Pontiac automobile was invalid because not issued by a "neutral and detached magistrate." Since we agree with the petitioner that the warrant was invalid for this reason, we need not consider his further argument that the allegations under oath supporting the issuance of the warrant were so conclusory as to violate relevant constitutional standards. Cf. Giordenello v. United States, 357 U.S. 480; Aguilar v. Texas, 378 U.S. 108. The classic statement of the policy underlying the warrant requirement of the Fourth Amendment is that of Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 13-14:
The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity, and leave the people’s homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.
Cf. United States v. Lefkowitz, 285 U.S. 452, 464; Giordenello v. United States, supra, at 486. Wong Sun v.United States, 371 U.S. 471, 481-482; Katz v. United States, 389 U.S. 347, 356-357.
In this case, the determination of probable cause was made by the chief "government enforcement agent" of the State the Attorney General -- who was actively in charge of the investigation and later was to be chief prosecutor at the trial. To be sure, the determination was formalized here by a writing bearing the title "Search Warrant," whereas, in Johnson, there was no piece of paper involved, but the State has not attempted to uphold the warrant on any such artificial basis. Rather, the State argues that the Attorney General, who was unquestionably authorized as a justice of the peace to issue warrants under then-existing state law, did, in fact, act as a "neutral and detached magistrate." Further, the State claims that any magistrate, confronted with the showing of probable cause made by the Manchester chief of police, would have issued the warrant in question. To the first proposition, it is enough to answer that there could hardly be a more appropriate setting than this for a per se rule of disqualification, rather than a case-by-case evaluation of all the circumstances. Without disrespect to the state law enforcement agent here involved, the whole point of the basic rule so well expressed by Mr. Justice Jackson is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations -- the "competitive enterprise" that must rightly engage their single-minded attention.{3} Cf. Mancusi v. DeForte, 392 U.S. 364, 371. As for the proposition that the existence of probable cause renders noncompliance with the warrant procedure an irrelevance, it is enough to cite Agnello v. United States, 269 U.S. 20, 33, decided in 1925:
Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.
See also Jones v. United States, 357 U.S. 493, 497-498; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392. ("[T]he rights . . . against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way.")
But the New Hampshire Supreme Court, in upholding the conviction, relied upon the theory that, even if the warrant procedure here in issue would clearly violate the standards imposed on the Federal Government by the Fourth Amendment, it is not forbidden the States under the Fourteenth. This position was premised on a passage from the opinion of this Court in Ker v. California, 374 U.S. 23, 31:
Preliminary to our examination of the search and seizures involved here, it might be helpful for us to indicate what was not decided in
Mapp [v. Ohio, 367 U.S. 643]. First, it must be recognized that the
principles governing the admissibility of evidence in federal criminal trials have not been restricted . . . to those derived solely from the Constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts . . . , this Court has . . . formulated rules of evidence to be applied in federal criminal prosecutions.
McNabb v. United States, 318 U.S. 332, 341. . . .
Mapp, however, established no assumption by this Court of supervisory authority over state courts . . . , and, consequently, it implied no total obliteration of state laws relating to arrests and searches in favor of federal law.
Mapp sounded no death knell for our federalism; rather, it echoed the sentiment of
Elkins v. United States, supra, at 221, that "a healthy federalism depends upon the avoidance of needless conflict between state and federal courts" by itself urging that
[f]ederal-state cooperation in the solution of crime under constitutional standards will be promoted, if only by recognition of their now mutual obligation to respect the same fundamental criteria in their approaches.
367 U.S. at 658.
(Emphasis in Ker.) It is urged that the New Hampshire statutes which, at the time of the searches here involved, permitted a law enforcement officer himself to issue a warrant was one of those
workable rules governing arrests, searches and seizures to meet "the practical demands of effective criminal investigation and law enforcement" in the States,
id. at 34, authorized by Ker.
That such a procedure was indeed workable from the point of view of the police is evident from testimony at the trial in this case:
The Court: You mean that another police officer issues these [search warrants]?
The Witness: Yes. Captain Courture and Captain Shea and Captain Loveren are J.P.’s.
The Court: Well, let me ask you, Chief, your answer is to the effect that you never go out of the department for the Justice of the Peace?
The Witness: It hasn’t been our -- policy to go out of the department.
Q. Right. Your policy and experience is to have a fellow police officer take the warrant in the capacity of Justice of the Peace?
A. That has been our practice.
But it is too plain for extensive discussion that this now abandoned New Hampshire method of issuing "search warrants" violated a fundamental premise of both the Fourth and Fourteenth Amendments -- a premise fully developed and articulated long before this Court’s decisions in Ker v. California, supra, and Mapp v. Ohio, 367 U.S. 643. As Mr. Justice Frankfurter put it in Wolf v. Colorado, 338 U.S. 25, 27-28:
The security of one’s privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is basic to a free society. It is therefore implicit in "the concept of ordered liberty," and, as such, enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned. . . .
We find no escape from the conclusion that the seizure and search of the Pontiac automobile cannot constitutionally rest upon the warrant issued by the state official who was the chief investigator and prosecutor in this case. Since he was not the neutral and detached magistrate required by the Constitution, the search stands on no firmer ground than if there had been no warrant at all. If the seizure and search are to be justified, they must, therefore, be justified on some other theory.
II
The State proposes three distinct theories to bring the facts of this case within one or another of the exceptions to the warrant requirement. In considering them, we must not lose sight of the Fourth Amendment’s fundamental guarantee. Mr. Justice Bradley’s admonition in his opinion for the Court almost a century ago in Boydv. United States, 116 U.S. 616, 635, is worth repeating here:
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.{4}
Thus, the most basic constitutional rule in this area is that
searches conducted outside the judicial process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions.{5}
The exceptions are "jealously and carefully drawn,"{6} and there must be "a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative."{7} "[T]he burden is on those seeking the exemption to show the need for it."{8} In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or "extravagant" to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won -- by legal and constitutional means in England,{9} and by revolution on this continent -- a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.{10}
A
The State’s first theory is that the seizure on February 19 and subsequent search of Coolidge’s Pontiac were "incident" to a valid arrest. We assume that the arrest of Coolidge inside his house was valid, so that the first condition of a warrantless "search incident" is met. Whiteley v. Warden, 401 U.S. 560, 567 n. 11. And since the events in issue took place in 1964, we assess the State’s argument in terms of the law as it existed before Chimel v. California, 395 U.S. 752, which substantially restricted the "search incident" exception to the warrant requirement, but did so only prospectively. Williams v. United States, 401 U.S. 646. But even under preChimel law, the State’s position is untenable.
The leading case in the area before Chimel was United States v. Rabinowitz, 339 U.S. 56, which was taken to stand
for the proposition,
inter alia, that a warrantless search "incident to a lawful arrest" may generally extend to the area that is considered to be in the "possession" or under the "control" of the person arrested.
Chimel, supra, at 760. In this case, Coolidge was arrested inside his house; his car was outside in the driveway. The care was not touched until Coolidge had been removed from the scene. It was then seized and taken to the station, but it was not actually searched until two days later.
First, it is doubtful whether the police could have carried out a contemporaneous search of the car under Rabinowitz standards. For this Court has repeatedly held that, even under Rabinowitz,
[a] search may be incident to an arrest "`only if it is substantially contemporaneous with the arrest and is confined to the
immediate vicinity of the arrest. . . .’"
Vale v. Louisiana, 399 U.S. 30, 33, quoting from Shipley v. California, 395 U.S. 818, 819, quoting from Stoner v. California, 376 U.S. 483, 486. (Emphasis in Shipley.) Cf. Agnello v. United States, 269 U.S. at 30-31; James v. Louisiana, 382 U.S. 36. These cases make it clear beyond any question that a lawful pre-Chimel arrest of a suspect outside his house could never, by itself, justify a warrantless search inside the house. There is nothing in search-incident doctrine (as opposed to the special rules for automobiles and evidence in "plain view," to be considered below) that suggests a different result where the arrest is made inside the house and the search outside and at some distance away.{11}
Even assuming, arguendo, that the police might have searched the Pontiac in the driveway when they arrested Coolidge in the house, Preston v. United States, 376 U.S. 364, makes plain that they could not legally seize the car, remove it, and search it at their leisure without a warrant. In circumstances virtually identical to those here, MR. JUSTICE BLACK’s opinion for a unanimous Court held that,
[o]nce an accused is under arrest and in custody, then a search [of his car] made at another place, without a warrant, is simply not incident to the arrest.
Id. at 367. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216. Cf. Chambers v. Maroney, 399 U.S. 42, 47. Search-incident doctrine, in short, has no applicability to this case.{12}
B
The second theory put forward by the State to justify a warrantless seizure and search of the Pontiac car is that, under Carroll v. United States, 267 U.S. 132, the police may make a warrantless search of an automobile whenever they have probable cause to do so, and, under our decision last Term in Chambers v. Maroney, 399 U.S. 42, whenever the police may make a legal contemporaneous search under Carroll, they may also seize the car, take it to the police station, and search it there. But even granting that the police had probable cause to search the car, the application of the Carroll case to these facts would extend it far beyond its original rationale.
Carroll did indeed hold that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant,"{13} provided that
the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.{14}
Such searches had been explicitly authorized by Congress, and, as we have pointed out elsewhere,{15} in the conditions of the time,
[a]n automobile . . . was an almost indispensable instrumentality in large-scale violation of the National Prohibition Act, and the car itself therefore was treated somewhat as an offender, and became contraband.
In two later cases,{16} each involving an occupied automobile stopped on the open highway and searched for contraband liquor, the Court followed and reaffirmed Carroll.{17} And last Term, in Chambers, supra, we did so again.
The underlying rationale of Carroll and of all the cases that have followed it is that there is
a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable
to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
267 U.S. at 153. (Emphasis supplied.) As we said in Chambers, supra, at 51, "exigent circumstances" justify the warrantless search of "an automobile stopped on the highway," where there is probable cause, because the car is "movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained." "[T]he opportunity to search is fleeting. . . ." (Emphasis supplied.)
In this case, the police had known for some time of the probable role of the Pontiac car in the crime. Coolidge was aware that he was a suspect in the Mason murder, but he had been extremely cooperative throughout the investigation, and there was no indication that he meant to flee. He had already had ample opportunity to destroy any evidence he thought incriminating. There is no suggestion that, on the night in question, the car was being used for any illegal purpose, and it was regularly parked in the driveway of his house. The opportunity for search was thus hardly "fleeting." The objects that the police are assumed to have had probable cause to search for in the car were neither stolen nor contraband nor dangerous.
When the police arrived at the Coolidge house to arrest him, two officers were sent to guard the back door while the main party approached from the front. Coolidge was arrested inside the house, without resistance of any kind on his part, after he had voluntarily admitted the officers at both front and back doors. There was no way in which he could conceivably have gained access to the automobile after the police arrived on his property. When Coolidge had been taken away, the police informed Mrs. Coolidge, the only other adult occupant of the house, that she and her baby had to spend the night elsewhere, and that she could not use either of the Coolidge cars. Two police officers then drove her in police car to the house of a relative in another town, and they stayed with her there until around midnight, long after the police had had the Pontiac towed to the station house. The Coolidge premises were guarded throughout the night by two policemen.{18}
The word "automobile" is not a talisman in whose presence the Fourth Amendment fade away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States -- no alerted criminal be on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where "it is not practicable to secure a warrant," Carroll, supra, at 153, and the "automobile exception," despite its label, is simply irrelevant.{19}
Since Carroll would not have justified a warrantless search of the Pontiac at the time Coolidge was arrested, the later search at the station house was plainly illegal, at least so far as the automobile exception is concerned. Chambers, supra, is of no help to the State, since that case held only that, where the police may stop and search an automobile under Carroll, they may also seize it and search it later at the police station.{20} Rather, this case is controlled by Dyke v. Taylor Implement Mfg. Co., supra. There, the police lacked probable cause to seize or search the defendant’s automobile at the time of his arrest, and this was enough, by itself, to condemn the subsequent search at the station house. Here there was probable cause, but no exigent circumstances justified the police in proceeding without a warrant. As in Dyke, the later search at the station house was therefore illegal.{21}
C
The State’s third theory in support of the warrantless seizure and search of the Pontiac car is that the car itself was an "instrumentality of the crime," and, as such, might be seized by the police on Coolidge’s property because it was in plain view. Supposing the seizure to be thus lawful, the case of Cooper v. California, 386 U.S. 58, is said to support a subsequent warrantless search at the station house, with or without probable cause. Of course, the distinction between an "instrumentality of crime" and "mere evidence" was done away with by Warden v. Hayden, 387 U.S. 294, and we may assume that the police had probable cause to seize the automobile.{22} But, for the reasons that follow, we hold that the "plain view" exception to the warrant requirement is inapplicable to this case. Since the seizure was therefore illegal, it is unnecessary to consider the applicability Of Cooper, supra, to the subsequent search.{23}
It is well established that, under certain circumstances, the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the "plain view" doctrine has been to identify the circumstances in which plain view has legal significance, rather than being simply the normal concomitant of any search, legal or illegal.
An example of the applicability of the "plain view" doctrine is the situation in which the police have a warrant to search a given area for specified objects, and, in the course of the search, come across some other article of incriminating character. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 358; United States v. Lefkowitz, 285 U.S. 452, 465; Steele v. United States, 267 U.S. 498; Stanley v. Georgia, 394 U.S. 557, 571 (STEWART, J., concurring in result). Where the initial intrusion that brings the police within plain view of such an article is supported not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus, the police may inadvertently come across evidence while in "hot pursuit" of a fleeing suspect. Warden v. Hayden, supra; cf. Hester v. United States, 265 U.S. 57. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant.{24} Chimel v. California, 395 U.S. at 762-763. Finally, the "plain view" doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U.S. 234; Frazier v. Cupp, 394 U.S. 731; Ker v. California, 374 U.S. at 43. Cf. Lewis v. United States, 385 U.S. 206.
What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification -- whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused -- and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.Cf. Stanley v. Georgia, supra, at 571-572 (STEWART, J., concurring in result).
The rationale for the "plain view" exception is evident if we keep in mind the two distinct constitutional protections served by the warrant requirement. First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity. See, e.g., McDonald v. United States, 335 U.S. 451; Warden v. Hayden, 387 U.S. 294; Katz v. United States, 389 U.S. 347; Chimel v. California, 395 U.S. at 761-762. The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the "general warrant" abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. See, e.g., Boyd v. United States, 116 U.S. at 624-630; Marron v. United States, 275 U.S. 192, 195-196; Stanford v. Texas, 379 U.S. 476. The warrant accomplishes this second objective by requiring a "particular description" of the things to be seized.
The "plain view" doctrine is not in conflict with the first objective, because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as "hot pursuit" or search incident to a lawful arrest, or by an extraneous valid reason for the officer’s presence. And, given the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous -- to the evidence or to the police themselves -- to require them to ignore it until they have obtained a warrant particularly describing it.
The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view, alone, is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances." Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure. Taylor v. United States, 286 U.S. 1; Johnson v. United States, 333 U.S. 10; McDonald v. United States, 335 U.S. 451; Jones v. United States, 357 U.S. 493, 497-498; Chapman v. United States, 365 U.S. 610; Trupiano v. United States, 334 U.S. 699.{25}
The second limitation is that the discovery of evidence in plain view must be inadvertent.{26} The rationale of the exception to the warrant requirement, as just stated, is that a plain view seizure will not turn an initially valid (and therefore limited) search into a "general" one, while the inconvenience of procuring a warrant to cover an inadvertent discovery is great. But where the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize it, the situation is altogether different. The requirement of a warrant to seize imposes no inconvenience whatever, or at least none which is constitutionally cognizable in a legal system that regards warrantless searches as "per se unreasonable" in the absence of "exigent circumstances." If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of "Warrants . . . particularly describing . . . [the] things to be seized." The initial intrusion may, of course, be legitimated not by a warrant, but by one of the exceptions to the warrant requirement, such as hot pursuit or search incident to lawful arrest. But to extend the scope of such an intrusion to the seizure of objects -- not contraband nor stolen nor dangerous in themselves -- which the police know in advance they will find in plain view and intend to seize would fly in the face of the basic rule that no amount of probable cause can justify a warrantless seizure.{27}
In the light of what has been said, it is apparent that the "plain view" exception cannot justify the police seizure of the Pontiac car in this case. The police had ample opportunity to obtain a valid warrant; they knew the automobile’s exact description and location well in advance; they intended to seize it when they came upon Coolidge’s property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves.{28}
The seizure was therefore unconstitutional, and so was the subsequent search at the station house. Since evidence obtained in the course of the search was admitted at Coolidge’s trial, the judgment must be reversed, and the case remanded to the New Hampshire Supreme Court. Mapp v. Ohio, 367 U.S. 643.
D
In his dissenting opinion today, MR. JUSTICE WHITE marshals the arguments that can be made against our interpretation of the "automobile" and "plain view" exceptions to the warrant requirement. Beyond the unstartling proposition that, when a line is drawn, there is often not a great deal of difference between the situations closest to it on either side, there is a single theme that runs through what he has to say about the two exceptions. Since that theme is a recurring one in controversies over the proper meaning and scope of the Fourth Amendment, it seems appropriate to treat his views in this separate section, rather than piecemeal.
Much the most important part of the conflict that has been so notable in this Court’s attempts over a hundred years to develop a coherent body of Fourth Amendment law has been caused by disagreement over the importance of requiring law enforcement officers to secure warrants. Some have argued that a determination by a magistrate of probable cause as a precondition of any search or seizure is so essential that the Fourth Amendment is violated whenever the police might reasonably have obtained a warrant but failed to do so. Others have argued with equal force that a test of reasonableness, applied after the fact of search or seizure when the police attempt to introduce the fruits in evidence, affords ample safeguard for the rights in question, so that "[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable."{29}
Both sides to the controversy appear to recognize a distinction between searches and seizures that take place on a man’s property -- his home or office -- and those carried out elsewhere. It is accepted, at least as a matter of principle, that a search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of "exigent circumstances."{30} As to other kinds of intrusions, however, there has been disagreement about the basic rules to be applied, as our cases concerning automobile searches, electronic surveillance, street searches and administrative searches make clear.{31}
With respect to searches and seizures carried out on a suspect’s premises, the conflict has been over the question of what qualifies as an "exigent circumstance." It might appear that the difficult inquiry would be when it is that the police can enter upon a person’s property to seize his "person . . . papers, and effects," without prior judicial approval. The question of the scope of search and seizure once the police are on the premises would appear to be subsidiary to the basic issue of when intrusion is permissible. But the law has not developed in this fashion.
The most common situation in which Fourth Amendment issues have arisen has been that in which the police enter the suspect’s premises, arrest him, and then carry out a warrantless search and seizure of evidence. Where there is a warrant for the suspect’s arrest, the evidence seized may later be challenged, either on the ground that the warrant was improperly issued because there was not probable cause,{32} or on the ground that the police search and seizure went beyond that which they could carry out as an incident to the execution of the arrest warrant.{33} Where the police act without an arrest warrant, the suspect may argue that an arrest warrant was necessary, that there was no probable cause to arrest,{34} or that, even if the arrest was valid, the search and seizure went beyond permissible limits.{35} Perhaps because each of these lines of attack offers a plethora of litigable issues, the more fundamental question of when the police may arrest a man in his house without a warrant has been little considered in the federal courts. This Court has chosen on a number of occasions to assume the validity of an arrest and decide the case before it on the issue of the scope of permissible warrantless search. E.g., Chimel v. California, supra. The more common inquiry has therefore been:
Assuming a valid police entry for purposes of arrest, what searches and seizures may the police carry out without prior authorization by a magistrate?
Two very broad, and sharply contrasting answers to this question have been assayed by this Court in the past. The answer of Trupiano v. United States, supra, was that no searches and seizures could be legitimated by the mere fact of valid entry for purposes of arrest so long as there was no showing of special difficulties in obtaining a warrant for search and seizure. The contrasting answer in Harris v. United States, 331 U.S. 145, and United States v. Rabinowitz, supra, was that a valid entry for purposes of arrest served to legitimate warrantless searches and seizures throughout the premises where the arrest occurred, however spacious those premises might be.
The approach taken in Harris and Rabinowitz was open to the criticism that it made it so easy for the police to arrange to search a man’s premises without a warrant that the Constitution’s protection of a man’s "effects" became a dead letter. The approach taken in Trupiano, on the other hand, was open to the criticism that it was absurd to permit the police to make an entry in the dead of night for purposes of seizing the "person" by main force, and then refuse them permission to seize objects lying around in plain sight. It is arguable that, if the very substantial intrusion implied in the entry and arrest are "reasonable" in Fourth Amendment terms, then the less intrusive search incident to arrest must also be reasonable.
This argument against the Trupiano approach is of little force so long as it is assumed that the police must, in the absence of one of a number of defined exceptions based on "exigent circumstances," obtain an arrest warrant before entering a man’s house to seize his person. If the Fourth Amendment requires a warrant to enter and seize the person, then it makes sense as well to require a warrant to seize other items that may be on the premises. The situation is different, however, if the police are under no circumstances required to obtain an arrest warrant before entering to arrest a person they have probable cause to believe has committed a felony. If no warrant is ever required to legitimate the extremely serious intrusion of a midnight entry to seize the person, then it can be argued plausibly that a warrant should never be required to legitimate a very sweeping search incident to such an entry and arrest. If the arrest without a warrant is per se reasonable under the Fourth Amendment, then it is difficult to perceive why a search incident in the style of Harris and Rabinowitz is not per se reasonable as well.
It is clear, then, that the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without warrant are per se unreasonable in the absence of some one of a number of well defined "exigent circumstances." This conflict came to the fore in Chimel v. California, supra. The Court there applied the basic rule that the "search incident to arrest" is an exception to the warrant requirement, and that its scope must therefore be strictly defined in terms of the justifying "exigent circumstances." The exigency in question arises from the dangers of harm to the arresting officer and of destruction of evidence within the reach of the arrestee. Neither exigency can conceivably justify the far-ranging searches authorized under Harris and Rabinowitz. The answer of the dissenting opinion of MR. JUSTICE WHITE in Chimel, supported by no decision of this Court, was that a warrantless entry for the purpose of arrest on probable cause is legitimate and reasonable no matter what the circumstances. 395 U.S. at 776-780. From this it was said to follow that the full-scale search incident to arrest was also reasonable, since it was a lesser intrusion. 395 U.S. at 772-775.
The same conflict arises in this case. Since the police knew of the presence of the automobile, and planned all along to seize it, there was no "exigent circumstance" to justify their failure to obtain a warrant. The application of the basic rule of Fourth Amendment law therefore requires that the fruits of the warrantless seizure be suppressed. MR. JUSTICE WHITE’s dissenting opinion, however, argues once again that, so long as the police could reasonably make a warrantless nighttime entry onto Coolidge’s property in order to arrest him, with no showing at all of an emergency, then it is absurd to prevent them from seizing his automobile as evidence of the crime.
MR. JUSTICE WHITE takes a basically similar approach to the question whether the search of the automobile in this case can be justified under Carroll v. United States, supra, and Chambers v. Maroney, supra.Carroll, on its face, appears to be a classic example of the doctrine that warrantless searches are per se unreasonable in the absence of exigent circumstances. Every word in the opinion indicates the Court’s adherence to the underlying rule and its care in delineating a limited exception. Read thus, the case quite evidently does not extend to the situation at bar. Yet, if we take the viewpoint of a judge called on only to decide in the abstract, after the fact, whether the police have behaved "reasonably" under all the circumstances -- in short, if we simply ignore the warrant requirement -- Carroll comes to stand for something more. The stopping of a vehicle on the open highway and a subsequent search amount to a major interference in the lives of the occupants. Carroll held such an interference to be reasonable without a warrant, given probable cause. It may be thought to follow a fortiori that the seizure and search here -- where there was no stopping and the vehicle was unoccupied -- were also reasonable, since the intrusion was less substantial, although there were no exigent circumstances whatever. Using reasoning of this sort, it is but a short step to the position that it is never necessary for the police to obtain a warrant before searching and seizing an automobile, provided that they have probable cause. And MR. JUSTICE WHITE appears to adopt exactly this view when he proposes that the Court should "treat searches of automobiles as we do the arrest of a person."
If we were to accept MR. JUSTICE WHITE’s view that warrantless entry for purposes of arrest and warrantless seizure and search of automobiles are per se reasonable so long as the police have probable cause, it would be difficult to see the basis for distinguishing searches of houses and seizures of effects. If it is reasonable for the police to make a warrantless nighttime entry for the purpose of arresting a person in his bed, then surely it must be reasonable as well to make a warrantless entry to search for and seize vital evidence of a serious crime. If the police may, without a warrant, seize and search an unoccupied vehicle parked on the owner’s private property, not being used for any illegal purpose, then it is hard to see why they need a warrant to seize and search a suitcase, a trunk, a shopping bag, or any other portable container in a house, garage, or backyard.
The fundamental objection, then, to the line of argument adopted by MR. JUSTICE WHITE in his dissent in this case and in Chimel v. California, supra, is that it proves too much. If we were to agree with MR. JUSTICE WHITE that the police may, whenever they have probable cause, make a warrantless entry for the purpose of making an arrest, and that seizures and searches of automobiles are likewise per se reasonable, given probable cause, then by the same logic any search or seizure could be carried out without a warrant, and we would simply have read the Fourth Amendment out of the Constitution. Indeed, if MR. JUSTICE WHITE is correct that it has generally been assumed that the Fourth Amendment is not violated by the warrantless entry of a man’s house for purposes of arrest, it might be wise to reexamine the assumption. Such a reexamination
would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been sought, is consistent with the Fourth Amendment.
Jones v. United States, 357 U.S. at 499-500.
None of the cases cited by MR. JUSTICE WHITE disposes of this "grave constitutional question." The case of Warden v. Hayden, supra, where the Court elaborated a "hot pursuit" justification for the police entry into the defendant’s house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances. See also Davis v. Mississippi, 394 U.S. 721, 728; Wong Sun v. United States, 371 U.S. at 481-482. The Court of Appeals for the District of Columbia Circuit, sitting en banc, has unanimously reached the same conclusion.{36} But we find it unnecessary to decide the question in this case. The rule that
searches conducted outside the judicial process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions,{37}
is not so frail that its continuing vitality depends on the fate of a supposed doctrine of warrantless arrest. The warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow "weighed" against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the "well-intentioned but mistakenly over-zealous executive officers"{38} who are a part of any system of law enforcement. If it is to be a true guide to constitutional police action, rather than just a pious phrase, then "[t]he exceptions cannot be enthroned into the rule." United States v. Rabinowitz, supra, at 80 (Frankfurter, J., dissenting). The confinement of the exceptions to their appropriate scope was the function of Chimel v. California, supra, where we dealt with the assumption that a search "incident" to a lawful arrest may encompass all of the premises where the arrest occurs, however spacious. The "plain view" exception is intimately linked with the search-incident exception, as the cases discussed in Part C above have repeatedly shown. To permit warrantless plain view seizures without limit would be to undo much of what was decided in Chimel, as the similar arguments put forward in dissent in the two cases indicate clearly enough.
Finally, a word about Trupiano v. United States, supra. Our discussion of "plain view" in Part C, above, corresponds with that given in Trupiano. Here, as in Trupiano, the determining factors are advance police knowledge of the existence and location of the evidence, police intention to seize it, and the ample opportunity for obtaining a warrant. See 334 U.S. at 707-708 and n. 27, supra. However, we do not "reinstate" Trupiano, since we cannot adopt all its implications. To begin with, in Chimel v. California, supra, we held that a search of the person of an arrestee and of the area under his immediate control could be carried out without a warrant. We did not indicate there, and do not suggest here, that the police must obtain a warrant if they anticipate that they will find specific evidence during the course of such a search. Seen. 24, supra. And as to the automobile exception, we do not question the decisions of the Court in Cooper v. California, 386 U.S. 58, and Chambers v. Maroney, supra, although both are arguably inconsistent with Trupiano.
MR. JUSTICE WHITE s dissent characterizes the coexistence of Chimel, Cooper, Chambers, and this case as "punitive," "extravagant," "inconsistent," "without apparent reason," "unexplained," and "inexplicable." Post at 517, 519, 521. It is urged upon us that we have here a
ready opportunity, one way or another, to bring clarity and certainty to a body of law that lower courts and law enforcement officials often find confusing.
Post at 521. Presumably one of the ways in which MR. JUSTICE WHITE believes we might achieve clarity and certainty would be the adoption of his proposal that we treat entry for purposes of arrest and seizure of an automobile alike as per se reasonable on probable cause. Such an approach might dispose of this case clearly and certainly enough, but, as we have tried to show above, it would cast into limbo the whole notion of a Fourth Amendment warrant requirement. And it is difficult to take seriously MR. JUSTICE WHITE’s alternative suggestion that clarity and certainty, as well as coherence and credibility, might also be achieved by modifying Chimel and overruling Chambers and Cooper. Surely, quite apart from his strong disagreement on the merits, he would take vehement exception to any such cavalier treatment of this Court’s decisions.
Of course, it would be nonsense to pretend that our decision today reduces Fourth Amendment law to complete order and harmony. The decisions of the Court over the years point in differing directions and differ in emphasis. No trick of logic will make them all perfectly consistent. But it is no less nonsense to suggest, as does MR. JUSTICE WHITE, post at 521, 520, that we cease today "to strive for clarity and consistency of analysis," or that we have "abandoned any attempt" to find reasoned distinctions in this area. The time is long past when men believed that development of the law must always proceed by the smooth incorporation of new situations into a single coherent analytical framework. We need accept neither the "clarity and certainty" of a Fourth Amendment without a warrant requirement nor the facile consistency obtained by wholesale overruling of recently decided cases. A remark by MR. JUSTICE HARLAN concerning the Fifth Amendment is applicable as well to the Fourth:
There are those, I suppose, who would put the "liberal construction" approach of cases like
Miranda [v. Arizona, 384 U.S. 436,] and
Boyd v. United States, 116 U.S. 616 (1886), side-by-side with the balancing approach of
Schmerber [v. California, 384 U.S. 757,] and perceive nothing more subtle than a set of constructional antinomies to be utilized as convenient bootstraps to one result or another. But I perceive in these cases the essential tension that springs from the uncertain mandate which this provision of the Constitution gives to this Court.
California v. Byers, 402 U.S. 424, 449-450 (concurring in judgment). We are convinced that the result reached in this case is correct, and that the principle it reflects -- that the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest -- can be easily understood and applied by courts and law enforcement officers alike. It is a principle that should work to protect the citizen without overburdening the police, and a principle that preserves and protects the guarantees of the Fourth Amendment.
III
Because of the prospect of a new trial, the efficient administration of justice counsels consideration of the second substantial question under the Fourth and Fourteenth Amendments presented by this case. The petitioner contends that, when the police obtained a rifle and articles of his clothing from his home on the night of Sunday, February 2, 1964, while he was being interrogated at the police station, they engaged in a search and seizure violative of the Constitution. In order to understand this contention, it is necessary to review in some detail the circumstances of the February 2 episode.
A
The lie detector test administered to Coolidge in Concord on the afternoon of the 2d was inconclusive as to his activities on the night of Pamela Mason’s disappearance, but, during the course of the test, Coolidge confessed to stealing $375 from his employer. After the group returned from Concord to Manchester, the interrogation about Coolidge’s movements on the night of the disappearance continued, and Coolidge apparently made a number of statements which the police immediately checked out as best they could. The decision to send two officers to the Coolidge house to speak with Mrs. Coolidge was apparently motivated in part by a desire to check his story against whatever she might say, and in part by the need for some corroboration of his admission to the theft from his employer. The trial judge found as a fact, and the record supports him, that, at the time of the visit, the police knew very little about the weapon that had killed Pamela Mason. The bullet that had been retrieved was of small caliber, but the police were unsure whether the weapon was a rifle or a pistol. During the extensive investigation following the discovery of the body, the police had made it a practice to ask all those questioned whether they owned any guns, and to ask the owners for permission to run tests on those that met the very general description of the murder weapon. The trial judge found as a fact that, when the police visited Mrs. Coolidge on the night of the 2d, they were unaware of the previous visit during which Coolidge had shown other officers three guns, and that they were not motivated by a desire to find the murder weapon.
The two plainclothesmen asked Mrs. Coolidge whether her husband had been at home on the night of the murder victim’s disappearance, and she replied that he had not. They then asked her if her husband owned any guns. According to her testimony at the pretrial suppression hearing, she replied, "Yes, I will get them in the bedroom." One of the officers replied, "We will come with you." The three went into the bedroom, where Mrs. Coolidge took all four guns out of the closet. Her account continued:
A. I believe I asked if they wanted the guns. One gentleman said, "No;" then the other gentleman turned around and said, "We might as well take them." I said, "If you would like them, you may take them."
Q. Did you go further and say, "We have nothing to hide.?"
A. I can’t recall if I said that then or before. I don’t recall.
Q. But, at some time, you indicated to them that, as far as you were concerned, you had nothing to hide, and they might take what they wanted?
A. That was it.
* * * *
Q. Did you feel at that time that you had something to hide?
A. No.
The two policemen also asked Mrs. Coolidge what her husband had been wearing on the night of the disappearance. She then produced four pairs of trousers, and indicated that her husband had probably worn either of two of them on that evening. She also brought out a hunting jacket. The police gave her a receipt for the guns and the clothing, and, after a search of the Coolidge cars not here in issue, took the various articles to the police station.
B
The first branch of the petitioner’s argument is that, when Mrs. Coolidge brought out the guns and clothing and then handed them over to the police, she was acting as an "instrument" of the officials, complying with a "demand" made by them. Consequently, it is argued, Coolidge was the victim of a search and seizure within the constitutional meaning of those terms. Since we cannot accept this interpretation of the facts, we need not consider the petitioner’s further argument that Mrs. Coolidge could not or did not "waive" her husband’s constitutional protection against unreasonable searches and seizures.
Had Mrs. Coolidge, wholly on her own initiative, sought out her husband’s guns and clothing and then taken them to the police station to be used as evidence against him, there can be no doubt under existing law that the articles would later have been admissible in evidence. Cf. Burdeau v. McDowell, 256 U.S. 465. The question presented here is whether the conduct of the police officers at the Coolidge house was such as to make her actions their actions for purposes of the Fourth and Fourteenth Amendments and their attendant exclusionary rules. The test, as the petitioner’s argument suggests, is whether Mrs. Coolidge, in light of all the circumstances of the case, must be regarded as having acted as an "instrument" or agent of the state when she produced her husband’s belongings. Cf. United States v. Goldberg, 330 F.2d 30 (CA3), cert. denied, 377 U.S. 953 (1964); People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505 (1955); see Byars v. United States, 273 U.S. 28; Gambino v. United States, 275 U.S. 310.
In a situation like the one before us, there no doubt always exist forces pushing the spouse to cooperate with the police. Among these are the simple, but often powerful, convention of openness and honesty, the fear that secretive behavior will intensify suspicion, and uncertainty as to what course is most likely to be helpful to the absent spouse. But there is nothing constitutionally suspect in the existence, without more, of these incentives to full disclosure or active cooperation with the police. The exclusionary rules were fashioned "to prevent, not to repair," and their target is official misconduct. They are "to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it." Elkins v. United States, 364 U.S. 206, 217. But it is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals. If, then, the exclusionary rule is properly applicable to the evidence taken from the Coolidge house on the night of February 2, it must be upon the basis that some type of unconstitutional police conduct occurred.
Yet it cannot be said that the police should have obtained a warrant for the guns and clothing before they set out to visit Mrs. Coolidge, since they had no intention of rummaging around among Coolidge’s effects or of dispossessing him of any of his property. Nor can it be said that they should have obtained Coolidge’s permission for a seizure they did not intend to make. There was nothing to compel them to announce to the suspect that they intended to question his wife about his movements on the night of the disappearance or about the theft from his employer. Once Mrs. Coolidge had admitted them, the policemen were surely acting normally and properly when they asked her, as they had asked those questioned earlier in the investigation, including Coolidge himself, about any guns there might be in the house. The question concerning the clothes Coolidge had been wearing on the night of the disappearance was logical, and in no way coercive. Indeed, one might doubt the competence of the officers involved had they not asked exactly the questions they did ask. And surely, when Mrs. Coolidge, of her own accord, produced the guns and clothes for inspection, rather than simply describing them, it was not incumbent on the police to stop her or avert their eyes.
The crux of the petitioner’s argument must be that, when Mrs. Coolidge asked the policemen whether they wanted the guns, they should have replied that they could not take them, or have first telephoned Coolidge at the police station and asked his permission to take them, or have asked her whether she had been authorized by her husband to release them. Instead, after one policeman had declined the offer, the other turned and said, "We might as well take them," to which Mrs. Coolidge replied, "If you would like them, you may take them."
In assessing the claim that this course of conduct amounted to a search and seizure, it is well to keep in mind that Mrs. Coolidge described her own motive as that of clearing her husband, and that she believed that she had nothing to hide. She had seen her husband himself produce his guns for two other policemen earlier in the week, and there is nothing to indicate that she realized that he had offered only three of them for inspection on that occasion. The two officers who questioned her behaved, as her own testimony shows, with perfect courtesy. There is not the slightest implication of an attempt on their part to coerce or dominate her, or, for that matter, to direct her actions by the more subtle techniques of suggestion that are available to officials in circumstances like these. To hold that the conduct of the police here was a search and seizure would be to hold, in effect, that a criminal suspect has constitutional protection against the adverse consequences of a spontaneous, good faith effort by his wife to clear him of suspicion.{39}
The judgment is reversed, and the case is remanded to the Supreme Court of New Hampshire for further proceedings not inconsistent with this opinion.
It is so ordered.
* Parts II-A, II-B, and II-C of this opinion are joined only by MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL.
1. During the lie detector test, Coolidge had confessed to a theft of money from his employer. SeeIII-A of text, infra.
2. For a very strong argument that this evidence should have been excluded because altogether lacking in probative value, see Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329, 1342 n. 40 (1971).
3. After hearing the Attorney General’s testimony on the issuance of the warrants, the trial judge said:
I found that an impartial Magistrate would have done the same as you did. I don’t think, in all sincerity, that I would expect that you could wear two pairs of shoes.
4. See also Gouled v. United States, 255 U.S. 298, 303-304 (1921):
It would not be possible to add to the emphasis with which the framers of our Constitution and this court . . . have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two Amendments [the Fourth and Fifth]. The effect of the decisions cited is: that such rights are declared to be indispensable to the "full enjoyment of personal security, personal liberty and private property;" that they are to be regarded as of the very essence of constitutional liberty; and that the guaranty of them is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen, -- the right, to trial by jury, to the writ of habeas corpus and to due process of law. It has been repeatedly decided that these Amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or "gradual depreciation" of the rights secured by them, by imperceptible practice of courts or by well intentioned but mistakenly over-zealous executive officers.
See also Go-Bart Importing Co. v. United States, 282 U.S. 344, 357.
5. Katz v. United States, 389 U.S. 347, 357.
6. Jones v. United States, 357 U.S. 493, 499.
7. McDonald v. United States, 335 U.S. 451, 456.
8. United States v. Jeffers, 342 U.S. 48, 51.
9. See Entick v. Carrington, 19 How.St.Tr. 1029, 95 Eng.Rep. 807 (1765), and Wilkes v. Wood, 19 How.St.Tr. 1153, 98 Eng.Rep. 489 (1763).
10. See Elkins v. United States, 364 U.S. 206.
11. The suggestion in Part III-A of the concurring and dissenting opinion of MR. JUSTICE BLACK that this represents the formulation of "a per se rule reaching far beyond" Chimel v. California, 395 U.S. 752, post at 503, is mistaken. The question discussed here is whether, under pre-Chimel law, the police could, contemporaneously with the arrest of Coolidge inside his house, make a search of his car for evidence -- i.e., the particles later introduced at his trial. There can be no question that, after Chimel, such a search could not be justified as "incident" to the arrest, since Chimel held that a search so justified can extend only to the
arrestee’s person and the area "within his immediate control" -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
395 U.S. at 763. The quite distinct question whether the police were entitled to seize the automobile as evidence in plain view is discussed in Part II-C below. Cf.n. 24, infra.
12. Cooper v. California, 386 U.S. 58, is not in point, since there, the State did not rely on the theory of a search incident to arrest, but sought to justify the search on other grounds. Id. at 60. MR. JUSTICE BLACK’s opinion for the Court in Cooper reaffirmed Preston v. United States, 376 U.S. 364.
13. 267 U.S. at 153.
14. Id. at 156.
15. United States v. Di Re, 332 U.S. 581, 586.
16. Husty v. United States, 282 U.S. 694; Brinegar v. United States, 338 U.S. 160.
17. A third case that has sometimes been cited as an application of Carroll v. United States, 267 U.S. 132, is Scher v. United States, 305 U.S. 251. There, the police were following an automobile that they had probable cause to believe contained a large quantity of contraband liquor. The facts were as follows:
The driver
turned into a garage a few feet back of his residence and within the curtilage. One of the pursuing officers left their car and followed. As petitioner was getting out of his car, this officer approached, announced his official character, and stated he was informed that the car was hauling bootleg liquor. Petitioner replied, "just a little for a party." Asked whether the liquor was tax-paid, he replied that it was Canadian whiskey; also, he said it was in the trunk at the rear of the car. T he officer opened the trunk and found. . . .
305 U.S. at 253.
The Court held:
Considering the doctrine of
Carroll v. United States, 267 U.S. 132 . . . and the application of this to the facts there disclosed, it seems plain enough that, just before he entered the garage, the following officers properly could have stopped petitioner’s car, made search, and put him under arrest. So much was not seriously controverted at the argument.
Passage of the car into the open garage closely followed by the observing officer did not destroy this right. No search was made of the garage. Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt. The officers did nothing either unreasonable or oppressive.
Agnello v. United States, 269 U.S. 20, 30;
Wisniewski v. United States, 47 F.2d 825, 826 [CA6 1931].
305 U.S. at 254-255. Both Agnello, at the page cited, and Wisniewski dealt with the admissibility of evidence seized during a search incident to a lawful arrest.
18. It is frequently said that occupied automobiles stopped on the open highway may be searched without a warrant because they are "mobile," or "movable." No other basis appears for MR. JUSTICE WHITE’s suggestion in his dissenting opinion that we should "treat searches of automobiles as we do the arrest of a person." Post at 527. In this case, it is, of course, true that, even though Coolidge was in jail, his wife was miles away in the company of two plainclothesmen, and the Coolidge property was under the guard of two other officers, the automobile was in a literal sense "mobile." A person who had the keys and could slip by the guard could drive it away. We attach no constitutional significance to this sort of mobility.
First, a good number of the containers that the police might discover on a person’s property and want to search are equally movable, e.g., trunks, suitcases, boxes, briefcases, and bags. How are such objects to be distinguished from an unoccupied automobile -- not then being used for any illegal purpose sitting on the owner’s property? It is true that the automobile has wheels and its own locomotive power. But, given the virtually universal availability of automobiles in our society, there is little difference between driving the container itself away and driving it away in a vehicle brought to the scene for that purpose. Of course, if there is a criminal suspect close enough to the automobile so that he might get a weapon from it or destroy evidence within it, the police may make a search of appropriately limited scope. Chimel v. California, 395 U.S. 752. SeeII-A of the text, supra. But if Carroll v. United States, 267 U.S. 132, permits a warrantless search of an unoccupied vehicle, on private property and beyond the scope of a valid search incident to an arrest, then it would permit as well a warrantless search of a suitcase or a box. We have found no case that suggests such an extension of Carroll.See nn. 16, 17, supra.
19. Cf. United States v. Payne, 429 F.2d 169 (CA9 1970). In that case, two couples were camping in an individually allotted campsite in Yosemite National Park. During the evening, an off-duty policeman, camping with his family in an adjoining site, observed the two couples smoking a substance he believed to be marihuana, and also observed them making what he thought "furtive" movements to remove objects he thought to be drugs from the glove compartment of a car parked nearby. He summoned a park ranger, and the two entered the campsite. They found that one of the couples was preparing to bed down for the night, while the couple to whom the car belonged were visiting in another campsite. The officers searched the unoccupied parked automobile, found 12 Seconal capsules, and arrested the couple who had stayed behind. The Government attempted to uphold the search under Carroll, supra, and Brinegar, supra. The Court of Appeals answered:
While it is true that the Supreme Court has enunciated slightly different rules concerning a search of an automobile without a warrant, the rationale is apparently based upon the fact that a "vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."
Chimel v. California, 395 U.S. 752, 764. . . . In the instant case, the search of the Volkswagen cannot be justified upon this reasoning. There is no indication in the record that the appellant or any of his party were preparing to leave, and, quite to the contrary, it is clear that appellant was bedding down for the evening, and that there was ample time to secure the necessary warrant for the search of the car had [the Park Ranger] believed there was probable cause to seek one.
429 F.2d at 171-172.
20. Part III-B of the concurring and dissenting opinion of MR. JUSTICE BLACK argues with vehemence that this case must somehow be controlled by Chambers v. Maroney, 399 U.S. 42, yet the precise applicability of Chambers is never made clear. On its face, Chambers purports to deal only with situations in which the police may legitimately make a warrantless search under Carroll v. United States, 267 U.S. 132. Since the Carroll rule does not apply in the circumstances of this case, the police could not have searched the car without a warrant when they arrested Coolidge. Thus, MR. JUSTICE BLACK’s argument must be that Chambers somehow operated sub silentio to extend the basic doctrine of Carroll. It is true that the actual search of the automobile in Chambers was made at the police station many hours after the car had been stopped on the highway, when the car was no longer movable, any "exigent circumstances" had passed, and, for all the record shows, there was a magistrate easily available. Nonetheless, the analogy to this case is misleading. The rationale of Chambers is that, given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose. That the police may have been legally on the property in order to arrest Coolidge is, of course, immaterial, since, as shown in II-A of the text, supra, that purpose could not authorize search of the car even under United States v. Rabinowitz, 339 U.S. 56.
21. Cooper v. California, 386 U.S. 58, is no more in point here than in the context of a search incident to a lawful arrest. Seen. 12, supra. In Cooper, the seizure of the petitioner’s car was mandated by California statute, and its legality was not questioned. The case stands for the proposition that, given an unquestionably legal seizure, there are special circumstances that may validate a subsequent warrantless search. Cf. Chambers, supra. The case certainly should not be read as holding that the police can do without a warrant at the police station what they are forbidden to do without a warrant at the place of seizure.
22. Coolidge had admitted that, on the night of Pamela Mason’s disappearance, he had stopped his Pontiac on the side of the highway opposite the place where the body was found. He claimed the car was stuck in the snow. Two witnesses, who had stopped and asked him if he needed help, testified that his car was not stuck.
23. See nn. 12 and 21, supra.
24. The "plain view" exception to the warrant requirement is not in conflict with the law of search incident to a valid arrest expressed in Chimel v. California, 395 U.S. 752. The Court there held that
[t]here is ample justification . . . for a search of the arrestee’s person and the area "within his immediate control" -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
Id. at 763. The "plain view" doctrine would normally justify as well the seizure of other evidence that came to light during such an appropriately limited search. The Court in Chimel went on to hold that
[t]here is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs -- or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well recognized exceptions, may be made only under the authority of a search warrant.
Ibid. Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee.
25. Trupiano v. United States, supra, applied the principle in circumstances somewhat similar to those here. Federal law enforcement officers had infiltrated an agent into a group engaged in manufacturing illegal liquor. The agent had given them the fullest possible description of the layout and equipment of the illegal distillery. Although they had ample opportunity to do so, the investigators failed to procure search or arrest warrants. Instead, they staged a warrantless nighttime raid on the premises. After entering the property, one of the officers looked through the doorway of a shed, and saw one of the criminals standing beside an illegal distillery. The officer entered, made a legal arrest, and seized the still. This Court held it inadmissible at trial, rejecting the Government’s argument based on
the long line of cases recognizing that an arresting officer may look around at the time of the arrest and seize those fruits and evidences of crime or those contraband articles which are in plain sight and in his immediate and discernible presence.
334 U.S. at 704. The Court reasoned that there was no excuse whatever for the failure of the agents to obtain a warrant before entering the property, and that the mere fact that a suspect was arrested in the proximity of the still provided no "exigent circumstance" to validate a warrantless seizure. The scope of the intrusion permitted to make the valid arrest did not include a warrantless search for and seizure of a still whose exact location and illegal use were known well in advance. The fact that, at the time of the arrest, the still was in plain view and nearby was therefore irrelevant. The agents were in exactly the same position as the policemen in Taylor v. United States, 286 U.S. 1, who had unmistakable evidence of sight and smell that contraband liquor was stored in a garage, but nonetheless violated the Fourth Amendment when they entered and seized it without a warrant.
Trupiano, to be sure, did not long remain undisturbed. The extremely restrictive view taken there of the allowable extent of a search and seizure incident to lawful arrest was rejected in United States v. Rabinowitz, 339 U.S. 56. See Chimel v. California, 395 U.S. 752. The case demonstrates, however, the operation of the general principle that "plain view" alone can never justify a warrantless seizure. Cf.n. 24, supra.
26. None of the cases cited in Part III-C of the concurring and dissenting opinion of MR. JUSTICE BLACK casts any doubt upon this conclusion. In Steele v. United States, 267 U.S. 498, agents observed cases marked "Whiskey" being taken into a building from a truck. On this basis, they obtained a warrant to search the premises for contraband liquor. In the course of the search, they came upon a great deal of whiskey and gin -- not that they had seen unloaded -- and various bottling equipment, and seized all they found.
In Warden v. Hayden, 387 U.S. 294, the police entered and searched a house in hot pursuit of a fleeing armed robber. The Court pointed out that
[s]peed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.
387 U.S. at 299. The Court then established with painstaking care that the various articles of clothing seized were discovered during a search directed at the robber and his weapons. Id. at 299-300.
In United States v. Lee, 274 U.S. 559, a Coast Guard patrol approached a boat on the high seas at night. A searchlight was turned on the boat, and revealed cases of contraband. The liquor subsequently seized was never introduced in evidence, but the seizing officers were allowed to testify to what they had seen. As the Court put it: "A later trespass by the officers, if any, did not render inadmissible in evidence knowledge legally obtained." 274 U.S. at 563.
In Marron v. United States, 275 U.S. 192, officers raided a speakeasy with a warrant to search for and seize contraband liquor. They arrested the bartender and seized a number of bills and other papers in plain view on the bar. While searching a closet for liquor, they came across a ledger kept in the operation of the illegal business, which they also seized. There is no showing whatever that these seizures outside the warrant were planned in advance. The Marron Court upheld them as "incident" to the arrest. The "plain view" aspect of the case was later emphasized in order to avoid the implication that arresting officers are entitled to make an exploratory search of the premises where the arrest occurs. See Go-Bart Importing Co. v. United States, 282 U.S. at 358; United States v. Lefkowitz, 285 U.S. 452, 465; United States v. Rabinowitz, 339 U.S. at 78 (Frankfurter, J., dissenting). Thus, Marron, like Steele, supra, Warden, supra, and Lee, supra, can hardly be cited for the proposition that the police may justify a planned warrantless seizure by maneuvering themselves within "plain view" of the object they want.
Finally, Ker v. California, 374 U.S. 23, is fully discussed in n. 28, infra.
27. MR. JUSTICE BLACK laments that the Court today "abolishes seizure incident to arrest" (but seen. 24, supra), while MR. JUSTICE WHITE no less forcefully asserts that the Court’s "new rule" will "accomplish nothing." In assessing these claims, it is well to keep in mind that we deal here with a planned warrantless seizure. This Court has never permitted the legitimation of a planned warrantless seizure on plain view grounds, seen. 26, supra, and to do so here would be flatly inconsistent with the existing body of Fourth Amendment law. A long line of cases, of which those cited in the text at n. 25, supra, are only a sample, make it clear beyond doubt that the mere fact that the police have legitimately obtained a plain view of a piece of incriminating evidence is not enough to justify a warrantless seizure. Although MR. JUSTICE BLACK and MR. JUSTICE WHITE appear to hold contrasting views of the import of today’s decision, they are in agreement that this warrant requirement should be ignored whenever the seizing officers are able to arrange to make an arrest within sight of the object they are after. "The exceptions cannot be enthroned into the rule." United States v. Rabinowitz, 339 U.S. at 80 (Frankfurter, J., dissenting). We recognized the dangers of allowing the extent of Fourth Amendment protections to turn on the location of the arrestee in Chimel v. California, 395 U.S. at 767, noting that, under the law of search incident to arrest as enunciated prior to Chimel,
law enforcement officials [had] the opportunity to engage in searches not justified by probable cause, by the simple expedient of arranging to arrest suspects at home rather than elsewhere.
Cf. Trupiano v. United States, supra,n. 25, where the Court held:
As we have seen, the existence of [the illegal still] and the desirability of seizing it
were known to the agents long before the seizure, and formed one of the main purposes of the raid. Likewise, the arrest of Antoniole [the person found in the shed with the still] . . . was a foreseeable event motivating the raid. But the precise location of the petitioners at the time of their arrest had no relation to the foreseeability or necessity of the seizure. The practicability of obtaining a search warrant did not turn upon whether Antoniole and the others were within the distillery building when arrested, or upon whether they were then engaged in operating the illicit equipment. . . . Antoniole might well have been outside the building at that particular time. If that had been the case and he had been arrested in the farmyard, the entire argument advanced by the Government in support of the seizure without warrant would collapse. We do not believe that the applicability of the Fourth Amendment to the facts of this case depends upon such a fortuitous factor as the precise location of Antoniole at the time of the raid.
334 U.S. at 707-708. (Emphasis supplied.)
28. Ker v. California, 374 U.S. 23, is not to the contrary. In that case, the police had probable cause to enter Ker’s apartment and arrest him, and they made an entry for that purpose. They did not have a search warrant, but the Court held that "time . . . was of the essence," so that a warrant was unnecessary. As the police entered the living room, Ker’s wife emerged from the adjacent kitchen. One of the officers moved to the door of the kitchen, looked in, and observed a brick of marihuana in plain view on a table. The officer brought Ker and his wife into the kitchen, questioned them, and, when they failed to explain the marihuana, arrested them and seized the contraband. The police then searched the whole apartment and found various other incriminating evidence. The Court held that the general exploratory search of the whole apartment "was well within the limits upheld in Harris v. United States [331 U.S. 145]" for a search incident to a lawful arrest. The Court also rejected Ker’s claim that the seizure of the brick of marihuana in the kitchen was illegal because the police had "searched" for it (by going to the door of the kitchen and looking in) before making any arrest. The Court reasoned that, when Mrs. Ker emerged from the kitchen, it was reasonable for the officer to go to the door and look in, and that, when he saw the brick of marihuana, he was not engaged in any "search" at all. Once he had arrested the Kers, the actual seizure of the brick was lawful because "incident" to the arrest. 374 U.S. at 42-43.
Ker is distinguishable from the present case on at least the following grounds: in Ker, the Court found that "the officers entered the apartment for the purpose of arresting George Ker," rather than for purposes of seizure or search, 374 U.S. at 42-43; exigent circumstances justified the failure to obtain a search warrant; the discovery of the brick of marihuana was fortuitous; the marihuana was contraband easily destroyed; and it was in the immediate proximity of the Kers at the moment of their arrest so that the seizure was unquestionably lawful under the search-incident law of the time, and might be lawful under the more restrictive standard of Chimel v. California, 395 U.S. 752. Not one of these elements was present in the case before us.
29. United States v. Rabinowitz, supra, at 66.
30. See the cases cited in nn. 5-8, supra, and in the text at n. 25, supra.
31. See Carroll v. United States, supra, and cases discussed in Part II-B above (automobiles); Katz v. United States, supra, (electronic surveillance); Terry v. Ohio, 392 U.S. 1; Sibron v. New York, 392 U.S. 40 (street searches); Camara v. Municipal Court, 387 U.S. 523; See v. Seattle, 387 U.S. 541 (administrative searches).
32. E.g., Giordenello v. United States, 357 U.S. 480.
33. E.g., Marron v. United States, supra; United States v. Rabinowitz, supra.
34. E.g., Wong Sun v. United States, 371 U.S. 471.
35. E.g., Trupiano v. United States, supra; Warden v. Hayden, supra; Ker v. California, supra.
36. Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970).
37. Katz v. United States, supra, at 357.
38. Gouled v. United States, 255 U.S. at 304.
39. Cf. Recent Cases, 79 Harv.L.Rev. 1513, 1519 (1966); Note, Seizures by Private Parties: Exclusion in Criminal Cases, 19 Stan.L.Rev. 608 (1967).