Property Subject to Seizure

Property Subject to Seizure.—There has never been any doubt that search warrants could be issued for the seizure of contraband and the fruits and instrumentalities of crime.132 But in Gouled v. United States,133 a unanimous Court limited the classes of property subject to seizures to these three and refused to permit a seizure of "mere evidence," in this instance defendant's papers which were to be used as evidence against him at trial. The Court recognized that there was "no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure,"134 but their character as evidence rendered them immune. This immunity "was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals."135 More evaded than followed, the "mere evidence" rule was overturned in 1967.136 It is now settled that such evidentiary items as fingerprints,137 blood,138 urine samples,139 fingernail and skin scrapings,140 voice and handwriting exemplars,141 conversations,142 and other demonstrative evidence may be obtained through the warrant process or without a warrant if "special needs" of government are shown.143

131 Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See id. at 566 (containing suggestion mentioned in text), and id. at 566 (Justice Powell concurring) (more expressly adopting that position). In the Privacy Protection Act, Pub. L. No. 96-440, 94 Stat. 1879 (1980), 42 U.S.C. § 2000aa, Congress provided extensive protection against searches and seizures not only of the news media and news people but also of others engaged in disseminating communications to the public, unless there is probable cause to believe the person protecting the materials has committed or is committing the crime to which the materials relate.

132 United States v. Lefkowitz, 285 U.S. 452, 465-66 (1932). Of course, evidence seizable under warrant is subject to seizure without a warrant in circumstances in which warrantless searches are justified.

133 255 U.S. 298 (1921). United States v. Lefkowitz, 285 U.S. 452 (1932), applied the rule in a warrantless search of premises. The rule apparently never applied in case of a search of the person. Cf. Schmerber v. California, 384 U.S. 757 (1966).

134 Gouled v. United States, 255 U.S. 298, 306 (1921).

135 Warden v. Hayden, 387 U.S. 294, 303 (1967). See Gouled v. United States, 255 U.S. 298, 309 (1921). The holding was derived from dicta in Boyd v. United States, 116 U.S. 616, 624-29 (1886).

136 Warden v. Hayden, 387 U.S. 294 (1967). Justice Douglas dissented, wishing to retain the rule, id. at 312, and Justice Fortas with Chief Justice Warren concurred in the result while apparently wishing to retain the rule in warrant cases. Id. at 310, 312.

137 Davis v. Mississippi, 394 U.S. 721 (1969).

138 Schmerber v. California, 384 U.S. 757 (1966). Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (warrantless blood testing for drug use by railroad employee involved in accident).

139 Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) (warrantless drug testing of railroad employee involved in accident).

140 Cupp v. Murphy, 412 U.S. 291 (1973) (sustaining warrantless taking of scrapings from defendant's fingernails at the stationhouse, on the basis that it was a very limited intrusion and necessary to preserve evanescent evidence).

141 United States v. Dionisio, 410 U.S. 1 (1973); United States v. Mara, 410 U.S. 19 (1973) (both sustaining grand jury subpoenas to produce voice and handwriting exemplars; no reasonable expectation of privacy with respect to those items).

142 Berger v. New York, 388 U.S. 41, 44 n.2 (1967). See also id. at 97 n.4, 107-08 (Justices Harlan and White concurring), 67 (Justice Douglas concurring).

143 Another important result of Warden v. Hayden is that third parties not suspected of culpability in crime are subject to the issuance and execution of warrants for searches and seizures of evidence. Zurcher v. Stanford Daily, 436 U.S. 547, 553-60 (1978). Justice Stevens argued for a stiffer standard for issuance of warrants to nonsuspects, requiring in order to invade their privacy a showing that they would not comply with a less intrusive method, such as a subpoena. Id. at 577 (dissenting).

However, some medically assisted bodily intrusions have been held impermissible, e.g., forcible administration of an emetic to induce vomiting,144 and surgery under general anesthetic to remove a bullet lodged in a suspect's chest.145 Factors to be weighed in determining which medical tests and procedures are reasonable include the extent to which the procedure threatens the individual's safety or health, "the extent of the intrusion upon the individual's dignitary interests in personal privacy and bodily integrity," and the importance of the evidence to the prosecution's case.146

In Warden v. Hayden,147 Justice Brennan for the Court cautioned that the items there seized were not "'testimonial' or 'communicative' in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment… This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure." This merging of Fourth and Fifth Amendment considerations derived from Boyd v. United States,148 the first case in which the Supreme Court considered at length the meaning of the Fourth Amendment. Boyd was a quasi-criminal proceeding for the forfeiture of goods alleged to have been imported in violation of law, and concerned a statute which authorized court orders to require defendants to produce any document which might "tend to prove any allegation made by the United States."149 That there was a self-incrimination problem the entire Court was in agreement, but Justice Bradley for a majority of the Justices also utilized the Fourth Amendment.

144 Rochin v. California, 342 U.S. 165 (1952).

145 Winston v. Lee, 470 U.S. 753 (1985).

146 Winston v. Lee, 470 U.S. 753, 761-63 (1985). Chief Justice Burger concurred on the basis of his reading of the Court's opinion "as not preventing detention of an individual if there are reasonable grounds to believe that natural bodily functions will disclose the presence of contraband materials secreted internally." Id. at 767. Cf. United States v. Montoya de Hernandez, 473 U.S. 531 (1985).

147 387 U.S. 294, 302-03 (1967). Seizure of a diary was at issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not been raised in the state courts and was deemed waived.

148 116 U.S. 616 (1886).

149 Act of June 22, 1874, § 5, 18 Stat. 187.

While the statute did not authorize a search but instead compulsory production, the Justice concluded that the law was well within the restrictions of the search and seizure clause.150 With this point established, the Justice relied on Lord Camden's opinion in Entick v. Carrington151 for the proposition that seizure of items to be used as evidence only was impermissible. Justice Bradley announced that the "essence of the offence" committed by the Government against Boyd "is not the breaking of his doors, and the rummaging of his drawers . . . but it is the invasion of his indefeasible right of personal security, personal liberty and private property… Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other."152

While it may be doubtful that the equation of search warrants with subpoenas and other compulsory process ever really amounted to much of a limitation,153 the present analysis of the Court dispenses with any theory of "convergence" of the two Amendments.154 Thus, in Andresen v. Maryland,155 police executed a warrant to search defendant's offices for specified documents pertaining to a fraudulent sale of land, and the Court sustained the admission of the papers discovered as evidence at his trial. The Fifth Amendment was inapplicable, the Court held, because there had been no compulsion of defendant to produce or to authenticate the documents.156 As for the Fourth Amendment, inasmuch as the "business records" seized were evidence of criminal acts, they were properly seizable under the rule of Warden v. Hayden; the fact that they were "testimonial" in nature, records in the defendant's handwriting, was irrelevant.157 Acknowledging that "there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers," the Court's response was to observe that while some "innocuous documents" would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic "seizures" of conversations, "must take care to assure that they are conducted in a manner that minimizes unwar-ranted intrusions upon privacy."158

150 Boyd v. United States, 116 U.S. 616, 622 (1886).

151 Howell's State Trials 1029, 95 Eng. Rep. 807 (1765).

152 Boyd v. United States, 116 U.S. 616, 630 (1886).

153 E.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209-09 (1946).

154 Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United States, 425 U.S. 391, 405-14 (1976). Fisher states that "the precise claim sustained in Boyd would now be rejected for reasons not there considered." Id. at 408.

155 427 U.S. 463 (1976).

156 Id. at 470-77.

157 Id. at 478-84.

158 Id. at 482 n.11. Minimization, as required under federal law, has not proved to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976).

Although Andresen was concerned with business records, its discussion seemed equally applicable to "personal" papers, such as diaries and letters, as to which a much greater interest in privacy most certainly exists. The question of the propriety of seizure of such papers continues to be the subject of reservation in opinions,159 but it is far from clear that the Court would accept any such exception should the issue be presented.160

159 E.g., United States v. Miller, 425 U.S. 435, 440, 444 (1976); Fisher v. United States, 425 U.S. 391, 401 (1976); California Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79 (1974) (Justice Powell concurring).

160 See, Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments 90 HARV. L. REV. 945 (1977).

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Last modified: June 9, 2014