recognizing Entick as “the true and ultimate expression of constitutional law” that “it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures
How later courts described this case
- recognizing Entick as “the true and ultimate expression of constitutional law” that “it may be confidently asserted that its propositions were in the minds of those who framed the fourth amendment to the constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures
- explaining that search and seizure of “goods liable to duties and concealed to avoid the payment thereof[] are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him”
- finding that “a compulsory production of the private books and papers” of a person constitutes compelling him “to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution” and also is an unreasonable search and seizure within the meaning of the Fourth Amendment
- holding that a notice to produce personal papers was “unconstitutional and void, and that the inspection by the district attorney of said invoice, when produced in obedience to said notice, and its admission in evidence by the court, were erroneous and unconstitutional proceedings”
Written by the judges who cited it.
Later courts went against this
Reported overruled on other grounds by Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967) — not on the Supreme Court's list
116 U.S. 616, 624-25 , 6 S. Ct. 524 , 29 L. Ed. 746 (1886), overruled by Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 , 87 S. Ct. 1642 , 18 L. Ed. 2d 782
Supreme Court of the United StatesMay 29, 196729 citing opinionsother groundsunconfirmed confidenceRead itReported abrogated on other grounds by Bellis v. United States, 417 U.S. 85 (1974) — not on the Supreme Court's list
Boyd, 116 U.S. at 618, 6 S.Ct. at 526, 29 L.Ed. at 747, abrogated on other grounds by Bellis v. United States, 417 U.S. 85, 94-95, 94 S.Ct. 2179, 2186, 40 L.Ed.2d 678, 687-88 (1974).
Supreme Court of the United StatesMay 28, 19743 citing opinionsother groundsunconfirmed confidenceRead itQuestioned — as noted by a later court
The continued vitality of that prohibition is more essential than ever because of the dilution to the point of extinction of the holding of Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), that all government attempts to procure a person’s private papers were unconstitutional under both the reasonableness clause of the fourth amendment and the self-incrimination clause of the fifth.
medium confidenceDeclined to follow by a later decision, 371 F.2d 697 (1967)
" We decline to extend the Boyd doctrine to bar an administrative summons for financial records relevant to a civil proceedings for collection of income tax where that summons is authorized by a congressional enactment, and where the constitutionality of the statute has to date been repeatedly upheld.
Declined to follow by G. M. Leasing Corp. v. United States, 429 U.S. 338 (1977)
Insofar as language in Boyd might be read so to state, we decline to follow those dicta into rejection of the basic governing principle that has shaped Fourth Amendment law.
Distinguished
Distinguished by Brunner v. Comm'r, 88 T.C.M. 136 (2004)
Boyd v. United States,116 U.S. 616, 29 L. Ed. 746, 6 S. Ct. 524 (1886), relied on by petitioner, is inapplicable in that the case dealt exclusively with a criminal, rather than a civil, matter.
Distinguished by United States v. Main, 312 F. Supp. 736 (1970)
Boyd is clearly distinguishable from the present case on several grounds.
Distinguished by One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965)
The Commonwealth, however, argues that Boyd is factually distinguishable as it involved a subpoena sought by the Government for the production of evidence whereas the issue here is the admissibility of illegally seized evidence already in the Government’s possession.
Distinguished by State v. Smith, 37 N.J. 481 (1962)
Boyd, we think, is distinguishable.
The opinion
Mr. Justice Miller,
with whom was the Chief Justice, concurring:
I concur in the judgment of the court, reversing that of the Circuit Court, and in so much of the opinion of this court as *639 holds the 5th section of the. act of 1874 void as applicable to the present case.
I am of opinion that this is a criminal case within tbe meaning of that clause of the Fifth Amendment to the Constitution of the United States which declares that no person “shall be compelled in any criminal case to be a witness against himself.”
And I am quite satisfied that the effect of the act of Congress is to compel the party on whom the order of the court is served to be a witness against himself. The order of the court under the statute is in effect a subpoena duces tecum, and, though the penalty for the witness’s failure to appear ■ in court with the criminating papers is not fine and imprispnment, it is one which may be made more severe, namely, to have charges against him of a criminal nature, taken for confessed, and made the foundation of the- judgment of the court. That this is within the protection which the Constitution intended against compelling a person to be a witness against himself, is, I think, quite clear.
But this being so, there is no reason why this court should assume that the action of the court below, in requiring a party to produce certain papers as evidence on the trial, authorizes an unreasonable search or seizure of the house, papers, or effects of that party.
There is in fact no search and no seizure authorized by the statute. No order can be made by the court under it which requires or permits anything more thán service of notice on a party to the suit. That there may be no mistake as to the effect of the statute and the power to be exercised under it, I give the section here verbatim :
“ Sec. 5. That in all suits and proceedings other than criminal arising under any Of the revenue-laws of the United States, the attorney representing the Government, whenever, in his belief, any business book, invoice, or paper, belonging to or under the control of "the defendant or claimant, will tend to prove any allegation made by the United States, may "make a. written motion, particularly describing such book, invoice, or paper, and setting" forth the allegation which he expects to prove; and thereupon the court in which suit or proceeding is *640 pending may, at its discretion, issue a'notice to the defendant or claimant to produce such book, invoice, or paper, in court, at a day and hou'r to be specified in said notice, which, together with a copy of said motion, shall be served formally oh, the defendant or claimant, by the United States marshal, by delivr ering to him a certified copy thereof, or otherwise serving the same as original notices of suit in the same court are served; and if the defendant or claimant shall fail or refuse to produce such book, invoice, or paper in obedience to such notice, the allegations stated in the said motion shall be taken as confessed, unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if produced, the said attorney shall be permitted, under the direction of the court, to make- examination (at which examination the defendant or claimant, or his agent, may be present) of such entries in said book, invoice, or paper'as relate to or tend to prove the allegation aforesaid, and may offer the same in evidence on behalf of the United States. But the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid.” 18 Stat. 187 .
Nothing in the nature of a search is here' hinted at. Nor is there any seizure, because the party is not required at any time to part with the custody of the ■ papers. They are to be produced in court, and, when produced, the United States attorney is permitted, under the direction of the court, to make examination in presence of the claimant, and may offer in evidence such entries in the books, invoices, or papers as relate to the ■issue. The act is careful to say that “ the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid.”
The,Fourth'Amendment says: “The right Of the people to be secure in their .persons, houses, papers, and effects, against unreasonable searches and seizures, Shall not be.violated, and no warrant shall issue, but upon probable cause, supported by .oath or affirmation, and particularly describing the place to be searched and the person or thing to be'seized.”
*641 The things here forbidden are two — search and seizure. And not all-searches nor all seizures are forbidden, but only those that are unreasonable. Seasonable searches, therefore, may be allowed, and if the thing sought be found, it may be seized. • .
But what search does this statute authorize? If the mere service of a.notice to produce a paper to be used as evidence, which the party can obey or not as he chooses is a search, then a change has taken place in the meaning of words, which has not come within my reading, and which I think was unknown at the time the Constitution was made. The searches meant by the Constitution were such as led to seizure when the search was successful. But the statute in this case uses language care-, ■fully framed to forbid any seizure under it, as I have already pointed out.
While the framers of the Constitution-had their attention drawn, no doubt, to the-abuses of this power of searching private houses and seizing private papers, as'practiced in England, it. is obvious that they only intended to restrain the • abuse, while they did not abolish the power. ■ Hence it is only unreasonable searches and seizures that are forbidden, and the means of securing this protection was by abolishing searches under warrants, which were called general warrants,- because they authorized searches in any place, for any thing.
This was forbidden, while searches founded on affidavits, and made under warrants which described the thing to be searched for, the person and place to be searched, are still permitted.
I cannot conceive how á statute aptly framed to require the production of evidence in a suit by mere service of notice on the party, who has that evidence in his possession, can be held to authorize an unreasonable search of seizure, when -no seizure' is authorized or-permitted by the statute.
I am requested to say that the Chief Justice concurs in this opiñion.