# Boyd v. United States

> Supreme Court of the United States · February 1, 1886 · 116 U.S. 616

URL: https://www.frixlaw.com/law-library/cases/9417419

## Case

- **Full name:** Boyd v. United States
- **Court:** Supreme Court of the United States
- **Decided:** February 1, 1886
- **Citations:** 116 U.S. 616; 3 A.F.T.R. (P-H) 2488; 6 S. Ct. 524; 29 L. Ed. 746; 1886 U.S. LEXIS 1806
- **Precedential status:** Published
- **Opinion:** Concurrence by Miller
- **Judges:** Bradley, Miller
- **Cited by:** 2,993 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Reported overruled on other grounds by Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 (1967) — not on the Supreme Court's list.
- Negative treatments: 5
- Distinguished by: 5
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9417419

## How later opinions describe it (automated extraction)

- 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…
- 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 the…
- 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 t…
- 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 proceed…
- holding that because of its quasi-criminal nature, forfeiture proceeding was subject to the fifth amendment’s prohibition against self-incrimina tion

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9417419. Public record. Not legal advice.