Wolf v. People of the State of Colorado, Nos. 17 and 18

CourtUnited States Supreme Court
Writing for the CourtFRANKFURTER
Citation93 L.Ed. 1782,69 S.Ct. 1359,338 U.S. 25
Docket NumberNos. 17 and 18
Decision Date27 June 1949
PartiesWOLF v. PEOPLE OF THE STATE OF COLORADO (two cases)

338 U.S. 25
69 S.Ct. 1359
93 L.Ed. 1782
WOLF

v.

PEOPLE OF THE STATE OF COLORADO (two cases).

Nos. 17 and 18.
Argued Oct. 19, 1948.
Decided June 27, 1949.

Mr. Philip Hornbein, Denver, Colo., for petitioner.

Mr. James S. Henderson, Denver, Colo., for respondent.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

The precise question for consideration is this: Does a conviction by a State court for a State offense deny the 'due process of law' required by the Fourteenth Amendment, solely because evidence that was admitted

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at the trial was obtained under circumstances which would have rendered it admissible in a prosecution for violation of a federal law in a court of the United States because there deemed to be an infraction of the Fourth Amendment as applied in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, L.R.A.1915B, 834, Ann.Cas.1915C, 1177? The Supreme Court of Colorado has sustained convictions in which such evidence was admitted, 117 Colo. 279, 187 P.2d 926; 117 Colo. 321, 187 P.2d 928, and we brought the cases here. 333 U.S. 879, 68 S.Ct. 910, 92 L.Ed. 1155.

Unlike the specific requirements and restrictions placed by the Bill of Rights, Amendments I to VIII, upon the administration of criminal justice by federal authority, the Fourteenth Amendment did not subject criminal justice in the States to specific limitations. The notion that the 'due process of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution and thereby incorporates them has been rejected by this Court again and again, after mpressive consideration. See, e.g., Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97; Brown v. Mississippi, 297 U.S. 287, 56 S.Ct. 461, 80 L.Ed. 682; Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. Only the other day the Court reaffirmed this rejection after thorough reexamination of the scope and function of the Due Process Clause of the Fourteenth Amendment. Adamson v. California, 332 U.S. 46, 47 S.Ct. 1672, 91 L.Ed. 1903, 171 A.L.R. 1223. The issue is closed.

For purposes of ascertaining the restrictions which the Due Process Clause imposed upon the States in the enforcement of their criminal law, we adhere to the views expressed in Palko v. Connecticut, supra, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288. That decision speaks to us L.Ed. 288. That decision speaks to us particularly in matters of civil liberty, of a court that included Mr. Chief Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone and Mr. Justice Cardozo, to speak only of the dead. In rejecting the suggestion that the Due Process Clause incorporated the original Bill of Rights, Mr. Justice Cardozo reaffimred on behalf of that

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Court at affirmed but deeper and more pervasive conception of the Due Process Clause. This Clause exacts from the States for the lowliest and the most outcast all that is 'implicit in the concept of ordered liberty.' 302 U.S. at page 325, 58 S.Ct. at page 152.

Due process of law thus conveys neither formal nor fixed nor narrow requirements. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society. as of any one time, even though, as a as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.

To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movements of a free society. It belittles the scale of the conception of due process. The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the Court to draw it by the gradual and empiric process of 'inclusion and exclusion.' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. This was the Court's insight when first called upon to consider the problem; to this insight the Court has on the whole been faithful as case after case has come before it since Davidson v. New Orleans was decided.

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 againt the States through the Due Process

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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 as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.

Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing such a basic right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution.

In Weeks v. United States, supra, this Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. This ruling was made for the first time in 1914. It was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution. The decision was a matter of judicial implication. Since then it has been frequently applied and we stoutly adhere to it. But the immediate question is whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logically relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. As a matter of inherent reason, one would suppose this to be an issue to which men with complete devotion to the protection of the right

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of privacy might give different answers. When we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right. The contrariety of views of the States is particularly impressive in view of the careful reconsideration which they have given the problem in the light of the Weeks decision.

I. Before the Weeks decision 27 States had passed on the admissibility of evidence obtained by unlawful search and seizure.

(a) Of these, 26 States opposed the Weeks doctrine. (See Appendix, Table A.)

(b) Of these, 1 State anticipated the Weeks doctrine. (Table B.)

II. Since the Weeks decision 47 States all told have passed on the Weeks doctrine. (Table C.)

(a) Of these, 20 passed on it for the first time.

(1) Of the foregoing States, 6 followed the Weeks doctrine. (Table D.)

(2) Of the foregoing States, 14 rejected the Weeks doctrine. (Table E.)

(b) Of these, 26 States reviewed prior decisions contrary to the Weeks doctrine.

(1) Of these, 10 States have followed Weeks, overruling or distinguishing their prior decisions. (Table F.)

(2) Of these, 16 States adhered to their prior decisions against Weeks. (Table G)

(c) Of these, 1 State adhered to its prior formulation of the Weeks doctrine. (Table H.)

III. As of today 30 States reject the Weeks doctrine, 17 States are in agreement with it. (Table I.)

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IV. Of 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which have passed on the question, none has held evidence obtained by illegal search and seizure inadmissible. (Table J.)

The jurisdictions which have rejected the Weeks doctrine have not left the right to privacy without other means of protection.1 Indeed, the exclusion of evidence

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is a remedy which directly serves only to protect those upon whose person or premises something incriminating has been found. We cannot, therefore, regard it as a departure from basic standards to remand such persons, together with those who emerge scatheless from a search, to the remedies of private action and such protection as the internal discipline of the police, under the eyes of an alert public opinion, may afford. Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective. Weighty testimony against such an insistence on our own view is the opinion of Mr. Justice (then Judge) Cardozo in People v. Defore, 242 N.Y. 13, 150 N.E. 585.2 We cannot brush aside the experience of State which deem the incidence of such

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condust by the police too slight to call for a deterrent remedy not by way of disciplinary measures but by overriding the relevant rules of evidence. There are, moreover, reasons for excluding evidence unreasonable obtained by the federal police which are less compelling in the case of police...

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    ...remedies. Cf. Douglas v. Jeannette, 319 U.S. 157 [(1943)]; Stefanelli v. Minard, 342 U.S. 117 [(1951)]; Wolf Page 32v. Colorado, 338 U.S. 25 ([1949)]. A defendant by committing a procedural default may be debarred from challenging his conviction in the state courts even on federal constitut......
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