331 U.S. FRANKFURTER, J., dissenting. Otis' defense of privacy was enshrined in the Massachusetts Constitution of 1780 in the following terms: "XIV. Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws." In the meantime, Virginia, in her first Constitution (1776), incorporated a provision on the subject narrower in scope: "X. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted." When Madison came to deal with safeguards against searches and seizures in the United States Constitution, he did not draw on the Virginia model but based his proposal on the Massachusetts form. This is clear proof? that Congress meant to give wide, and not limited, scope to this protection against police intrusion. S. C., 19 State Trials, 1030, and Broom, Const. Law, 558; May, Const. Hist., ch. 10; Trial of Algernon Sidney, 9 State Trials, 817." Cooley, Principles of Constitutional Law (1st ed.) 212, n. 2. 145 FRANKFURTER, J., dissenting. Historically we are dealing with a provision of the Constitution which sought to guard against an abuse that more than any one single factor gave rise to American independence. John Adams surely is a competent witness on the causes of the American Revolution. And he it was who said of Otis' argument against search by the police, not unlike the one before us, "American independence was then and there born." 10 Adams, Works 247. That which lay behind immunity from police intrusion without a search warrant was expressed by Mr. Justice Brandeis when he said that the makers of our Constitution "conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment." To be sure, that was said by him in a dissenting opinion in which he, with Mr. Justice Holmes, Mr. Justice Butler and Mr. Justice Stone applied the prohibition of the Fourth Amendment to wiretapping without statutory authority. Olmstead v. United States, 277 U. S. 438, 478. But with only an occasional deviation, a series of decisions of this Court has construed the Fourth Amendment "liberally to safeguard the right of privacy." United States v. Lefkowitz, 285 U. S. 452, 464. (See an analysis of the cases in the Appendix to this opinion.) Thus, the federal rule established in Weeks v. United States, 232 U. S. 383, as against the rule prevailing in many States, renders evidence obtained through an improper search inadmissible no matter how relevant. See People v. Defore, 242 N. Y. 13, 150 N. E. 585, and Chafee, The Progress of the Law 1919-1922, 35 Harv. L. Rev. 673, 694 et seq. And 331 U.S. FRANKFURTER, J., dissenting. long before the Weeks case, Boyd v. United States, 116 U. S. 616, gave legal effect to the broad historic policy underlying the Fourth Amendment. The Boyd opinion has been the guide to the interpretation of the Fourth Amendment to which the Court has most frequently recurred. It is significant that the constitution of every State contains a clause like that of the Fourth Amendment and often in its precise wording. Nor are these constitutional provisions historic survivals. New York was alone in not having a safeguard against unreasonable search and seizure in its constitution. In that State, the privilege of privacy was safeguarded by a statute. It tells volumes that in 1938, New York, not content with statutory protection, put the safeguard into its constitution." If * Compare the answers to certified questions given by this Court in Gouled v. United States, 255 U. S. 298, with the forecast made by a student of the subject of known partiality in favor of civil liberties. Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361, 385-87. As pointed out by Professor Zechariah Chafee, Jr., in each instance where the Gouled case differs from Mr. Fraenkel's forecast, "the Court gave increased force to the constitutional guarantee." Chafee, The Progress of the Law 1919-1922, 35 Harv. L. Rev. 673, 699. 5 It is not without interest to note the first appearance of provisions dealing with search and seizure in State constitutions: Alabama: I, 9 (1819); Arizona: II, 8 (1911); Arkansas: II, 9 (1836); California: I, 19 (1849); Colorado: II, 7 (1876); Connecticut: I, 8 (1818); Delaware: I, 6 (1792); Florida: I, 7 (1838); Georgia: I, 18 (1865); Idaho: I, 17 (1889); Illinois: VIII, 7 (1818); Indiana: I, 8 (1816); Iowa: I, 8 (1846); Kansas: I, 14 (1855); Kentucky: XII (1792); Louisiana: Tit. VII, Art. 108 (1864); Maine: I, 5 (1819); Maryland: Decl. of Rights, XXIII (1776); Massachusetts: Part the First, Art. XIV (1780); Michigan: I, 8 (1835); Minnesota: I, 10 (1857); Mississippi: I, 9 (1817); Missouri: XIII, 13 (1820); Montana: III, 7 (1889); Nebraska: I, 7 (1875); Nevada: I, 18 (1864); New Hampshire: I, XIX (1784); New Jersey: I, 6 (1844); New Mexico: II, 10 (1910); North Carolina: Decl. of Rights, XI (1776); 145 FRANKFURTER, J., dissenting. one thing on this subject can be said with confidence it is that the protection afforded by the Fourth Amendment against search and seizure by the police, except under the closest judicial safeguards, is not an outworn bit of Eighteenth Century romantic rationalism but an indispensable need for a democratic society. The Fourth Amendment, we have seen, derives from the similar provision in the first Massachusetts Constitution. We may therefore look to the construction which the early Massachusetts Court placed upon the progenitor of the Fourth Amendment: "With the fresh recollection of those stirring discussions [respecting writs of assistance], and of the revolution which followed them, the article in the Bill of Rights, respecting searches and seizures, was framed and adopted. This article does not prohibit all searches and seizures of a man's person, his papers, and possessions; but such only as are 'unreasonable,' and the foundation of which is 'not previously supported by oath or affirmation.' The legislature were not deprived of the power to authorize search warrants for probable causes, supported by oath or affirmation, and for the punishment or suppression of any violation of law." Commonwealth v. Dana, 2 Met. (Mass.) 329, 336. The plain import of this is that searches are "unreasonable" unless authorized by a warrant, and a warrant North Dakota: I, 18 (1889); Ohio: VIII, 5 (1802); Oklahoma: II, 30 (1907); Oregon: I, 9 (1857); Pennsylvania: Decl. of Rights, X (1776); Rhode Island: I, 6 (1842); South Carolina: I, 22 (1868); South Dakota: VI, 11 (1889); Tennessee: XI, 7 (1796); Texas: Decl. of Rights, 5 (1836), I, 7 (1845); Utah: I, 14 (1895); Vermont: c. I, XI (1777); Virginia: Bill of Rights, 10 (1776); Washington: I, 7 (1889); West Virginia: II, 3 (1861-63); Wisconsin: I, 11 (1848); Wyoming: I, 4 (1889). FRANKFURTER, J., dissenting. 331 U.S. hedged about by adequate safeguards. "Unreasonable" is not to be determined with reference to a particular search and seizure considered in isolation. The "reason" by which search and seizure is to be tested is the "reason" that was written out of historic experience into the Fourth Amendment. This means that, with minor and severely confined exceptions, inferentially a part of the Amendment, every search and seizure is unreasonable when made without a magistrate's authority expressed through a validly issued warrant. It is noteworthy that Congress has consistently and carefully respected the privacy protected by the Fourth Amendment. Because they realized that the dangers of police abuse were persisting dangers, the Fathers put the Fourth Amendment into the Constitution. Because these dangers are inherent in the temptations and the tendencies of the police, Congress has always been chary in allowing the use of search warrants. When it has authorized them it has circumscribed their use with particularity. In scores upon score of Acts, Congress authorized search by warrant only for particular situations and in extremely restricted ways. Despite repeated importunities by Attorneys General of the United States, Congress long refused to make search by warrant generally available as a resource in aid of criminal prosecution. It did not do so until the first World War, and even then it did not do so except under conditions carefully circumscribed. The whole history of legislation dealing with search and seizure shows how warily Congress has walked precisely because of the Fourth Amendment. A search of the entire premises for instruments of crime merely as an incident to a warrant of arrest has never been authorized by Congress. Nor has Congress ever authorized such search without a warrant even for stolen or contraband goods. On the contrary, it is precisely for the search of such goods |