Opinion — Coolidge v. New Hampshire

NOTE: Where it is deemed desirable, a syllabus (headnote) will

be released, as is aay Some in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been ie my by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Lumber

Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

COOLIDGE v. NEW HAMPSHIRE

CERTIORARI TO THE SUPREME COURT OF NEW HAMPSHIRE

No. 323. Argued January 12, 1971—Decided June 21, 1971

Police went to petitioner’s home on January 28, 1964, to question

him about a murder. In the course of their inquiry he showed

them three guns; and he agreed to take a lie-detector test on

February 2. The test was inconclusive on the murder but during

its course petitioner admitted a theft. In petitioner’s absence,

two other policemen came to the house and questioned petitioner’s

wife to check petitioner’s story and corroborate his admission

of the theft. Unaware of the visit of the other officers who had

been shown the guns and knowing little about the murder

weapon, the police asked about any guns there might be in the

house and were shown four by petitioner’s wife which she offered

to let them take. After one policeman first declined the offer,

they took the guns, along with various articles of petitioner’s

clothing his wife made available to them. On February 19,

petitioner was arrested in his house for the murder and on that

date a warrant to search petitioner’s automobile was applied for

by the police chief and issued by the Attorney General (who had

assumed charge of the investigation and was later the chief prose-

cutor at the trial), acting as a justice of the peace. The car,

which at the time of the arrest was parked in petitioner’s drive-

way, was subsequently towed to the police station, where on

February 21 and on two occasions the next year it was searched.

Vacuum sweepings from the car as well as from the clothing

were used as evidence at the trial, along with one of the guns

made available by petitioner’s wife. Following the overruling

of pretrial motions to suppress that evidence, petitioner was

convicted, and the State Supreme Court affirmed. Held:

1. The warrant for the search and seizure of petitioner’s auto-

mobile did not satisfy the requirements of the Fourth Amendment

as made applicable to the States by the Fourteenth because it

I

Il

COOLIDGE v. NEW HAMPSHIRE

Syllabus

was not issued by a “neutral and detached magistrate.” John-

son v. United States, 333 U. S. 10, 14. Pp. 49.

2. The basic constitutional rule is that “searches conducted

outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amend-

ment—subject only to a few specifically established and well-

defined exceptions,” and on the facts of this case, a warrantless

search and seizure of the car cannot be justified under those

exceptions. Pp. 9-38.

(a) The seizure of the car in the driveway cannot be justified

as incidental to the arrest which took place inside the house.

Even assuming, arguendo, that the police could properly have

made a warrantless search of the car in the driveway when they

arrested petitioner, they could not have done so at their leisure

after its removal. Pp. 11-13.

(b) Under the circumstances present. here—where the police

for some time had known of the probable role of the car in the

crime, petitioner had had ample opportunity to destroy incriminat-

ing evidence, the house was guarded at the time of arrest and

petitioner had no access to the car—there were no exigent circum-

stances justifying the warrantless search even had it been made

before the car was taken to the police station, and the special

exceptions for automobile searches in Carroll v. United States, 267

U. S. 132, and Chambers v. Maroney, 399 U. S. 42, are clearly

inapplicable. Cf. Dyke v. Taylor Implement Mfg. Co., 391 U.S.

216. Pp. 13-19.

(c) Under certain circumstances the police may without a

warrant seize evidence in “plain view,” though not for that reason

alone and only when the discovery of the evidence is inadvertent.

That exception is inapplicable to the facts of the instant case,

where the police had ample opportunity to obtain a valid warrant,

knew in advance the car’s description and location, intended to

seize it when they entered on petitioner’s property, and no contra-

band or dangerous objects were involved. Pp. 20-29.

3. No search and seizure were implicated in the February 2

visit when the police obtained the guns and clothing from peti-

tioner’s wife, and hence they needed no warrant. The police, who

exerted no effort to coerce or dominate her, were not obligated to

refuse her offer to take the guns, and in making these and the

other items available to the police, she was not acting as the instru-

ment or agent of the police. Pp. 41-44.

109 N. H. 403, 260 A. 2d 547, reversed and remanded.

COOLIDGE v. NEW HAMPSHIRE III

Syllabus

SrewartT, J., delivered the opinion of the Court, in which Burcer,

C. J. (as to Part III), and Hartan (as to Parts I, II D, and III),

Dovcias, BRENNAN, and MarsHatt, JJ., joined. Harwan, J., filed

a concurring opinion. Burcer, C. J., filed a concurring and dissent-

ing opinion. Buack, J., filed a concurring and dissenting opinion,

in a portion of Part I and in Parts II and III of which Burcer, C. J.,

and Buack™wUN, J., joined. Wuire, J., filed a concurring and dis-

senting opinion, in which Burcgr, C. J., joined.

—

aye ayn This opinion is subject to formal revision before publication

in reliminary print of the United States Reports. Readers are re-

quested to e Reporter of pene. Supreme Court of the

3 th

Filey sae Weer, ne eth eee tas Gree

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 323.—Ocroser Term, 1970

Edward H. Coolidge, Jr.,

Petitioner,

v.

New Hampshire.

On Writ of Certiorari to the

Supreme Court of New

Hampshire.

[June 21, 1971]

Mr. Justice Stewart delivered the opinion of the

Court.*

We are called upon in this case to decide issues under

the Fourth and Fourteenth Amendments arising in the

context of a state criminal trial for the commission of a

particularly brutal murder. As in every case, our single

duty is to determine the issues presented in accord with

the Constitution and the law.

Pamela Mason, a 14-year-old girl, left her home

in Manchester, New Hampshire on the evening of Jan-

uary 13, 1964, during a heavy snowstorm, apparently in

response to a man’s telephone call for a babysitter. Eight

days later, after a thaw, her body was found by the side

of a major north-south highway several miles away.

She had been murdered. The event created great alarm

in the area, and the police immediately began a massive

investigation.

On January 28, having learned from a neighbor that

the petitioner, Edward Coolidge, had been away from

home on the evening of the girl’s disappearance, the

police went to his house to question him. They asked

*Parts II A, II B, and II C of this opinion are joined only by

Mr. Justice Dovetas, Mr. Justice BRENNAN, and Mr. Justice

MarsHALL.

a

2 COOLIDGE v. NEW HAMPSHIRE

him, among other things, if he owned any guns, and he

produced three, two shotguns and a rifle. They also

asked whether he would take a lie detector test concern-

ing his account of his activities on the night of the dis-

appearance. He agreed to do so on the following Sunday,

his day off. The police later described his attitude on

the occasion of this visit as fully “cooperative.” His wife

was in the house throughout the interview.

On the following Sunday, a policeman called Coolidge

early in the morning and asked him to come down to the

police station for the trip to Concord, New Hampshire,

where the lie detector test was to be administered. That

evening, two plain clothes policemen arrived at the Coo-

lidge house, where Mrs. Coolidge was waiting with her

mother-in-law for her husband’s return. These two

policemen were not the two who had visited the house

earlier in the week, and they apparently did not know

that Coolidge had displayed three guns for inspection

during the earlier visit. The plainclothesmen told Mrs.

Coolidge that her husband was in “serious trouble” and

probably would not be home that night. They asked

Coolidge’s mother to leave, and proceeded to question

Mrs. Coolidge. During the course of the interview they

obtained from her four guns belonging to Coolidge, and

some clothes that Mrs. Coolidge thought her husband

might have been wearing on the evening of Pamela

Mason’s disappearance.

Coolidge was held in jail on an unrelated charge that

night, but he was released the next day.’ During the

ensuing two and a half weeks, the State accumulated a

quantity of evidence to support the theory that it was

he who had killed Pamela Mason. On February 19, the

results of the investigation were presented at a meeting

between the police officers working on the case and the

* During the lie detector test, Coolidge had confessed to a theft of

money from his employer. See III A of text, infra.

—

COOLIDGE v. NEW HAMPSHIRE 3

State Attorney General, who had personally taken charge

of all police activites relating to the murder, and was

later to serve as chief prosecutor at the trial. At this

meeting, it was decided that there was enough evidence

to justify the arrest of Coolidge on the murder charge and

a search of his house and two cars. At the conclusion

of the meeting, the Manchester police chief made formal

application, under oath, for the arrest and search war-

rants. The complaint supporting the warrant for a

search of Coolidge’s Pontiac automobile, the only war-

rant which concerns us here, stated that the affiant “has

probable cause to suspect and believe, and does suspect

and believe, and herewith offers satisfactory evidence,

that there are certain objects and things used in the Com-

mission of said offense, now kept, and concealed in or upon

a certain vehicle, to wit: 1951 Pontiac two-door sedan. .. .”

The warrants were then signed and issued by the Attorney

General himself, acting as a justice of the peace. Under

New Hampshire law in force at that time, all justices of

the peace were authorized to issue search warrants.

N. H. Rev. Stat. Ann. § 595:1 (repealed 1969).

The police arrested Coolidge in his house on the day

the warrant issued. Mrs. Coolidge asked whether she

might remain in the house with her small child, but was

told that she must stay elsewhere, apparently in part

because the police believed that she would be harassed

by reporters if she were accessible to them. When she

asked whether she might take her car, she was told that

both cars had been “impounded,” and that the police

would provide transportation for her. Some time later,

the police called a towing company, and about two and

a half hours after Coolidge had been taken into custody

the cars were towed to the police station. It appears

that at the time of the arrest the cars were parked in the

Coolidge driveway, and that although dark had fallen

they were plainly visible both from the street and from

4 COOLIDGE v. NEW HAMPSHIRE

inside the house where Coolidge was actually arrested.

The 1951 Pontiac was seached and vacuumed on Feb-

ruary 21, two days after it was seized, again a year later,

in January 1965, and a third time in April, 1965.

At Coolidge’s subsequent jury trial on the charge of

murder, vacuum sweepings, including particles of gun

powder, taken from the Pontiac were introduced in evi-

dence against him, as part of an attempt by the State

to show by microscopic analysis that it was highly prob-

able that Pamela Mason had been in Coolidge’s car,

Also introduced in evidence was one of the guns taken by

the police on their Sunday evening visit to the Coolidge

house—a .22 calibre Mossberg rifle, which the prosecution

claimed was the murder weapon. Conflicting ballistics

testimony was offered on the question whether the bullets

found in Pamela Mason’s body had been fired from this

rifle. Finally, the prosecution introduced vacuum sweep-

ings of the clothes taken from the Coolidge house that

same Sunday evening, and attempted to show through

microscopic analysis that there was a high probability

that the clothes had been in contact with Pamela Mason's

body. Pretrial motions to suppress all this evidence were

referred by the trial judge to the New Hampshire Su-

preme Court, which ruled the evidence admissible. 106

N. H. 186, 208 A. 2d 322. The jury found Coolidge guilty

and he was sentenced to life imprisonment. The New

Hampshire Supreme Court affirmed the judgment of con-

viction, 109 N. H. 403, 260 A. 2d 547, and we granted

certiorari to consider the constitutional questions raised

by the admission of this evidence against Coolidge at his

trial. 399 U. S. 926.

I

The petitioner’s first claim is that the warrant author-

izing the seizure and subsequent search of his 1951 Pontiac

? For a very strong argument that this evidence should have been

excluded because altogether lacking in probative value, see Tribe,

Trial by Mathematics, 84 Harv. L. Rev. 1329, 1342 n. 40.

—

COOLIDGE v. NEW HAMPSHIRE 5

automobile was invalid because not issued by a “neutral

and detached magistrate.” Since we agree with the pe-

titioner that the warrant was invalid for this reason, we

need not consider his further argument that the allega-

tions under oath supporting the issuance of the warrant

were so conclusory as to violate relevant constitutional

standards. Cf. Giordenello v. United States, 357 U. S.

480; Aguilar v. Texas, 378 U. S. 108.

The classic statement of the policy underlying the war-

rant requirement of the Fourth Amendment is that of

Mr. Justice Jackson writing for the Court in Johnson

vy. United States, 333 U. 8. 10, 13-14:

“The point of the Fourth Amendment, which

often is not grasped by zealous officers, is not that it

denies law enforcement the support of the usual

inferences which reasonable men draw from evidence.

Its protection consists in requiring that those in-

ferences be drawn by a neutral and detached magi-

strate instead of being judged by the officer engaged

in the often competitive enterprise of ferreting out

crime. Any assumption that evidence sufficient to

support a magistrate’s disinterested determination to

issue a search warrant will justify the officers in

making a search without a warrant would reduce

the Amendment to a nullity and leave the people’s

homes secure only in the discretion of police offi-

cers. ... When the right of privacy must reason-

ably yield to the right of search is, as a rule, to be

decided by a judicial officer, not by a policeman or

government enforcement agent.”

Cf. United States v. Lefkowitz, 285 U.S. 452, 464; Gior-

denello v. United States, supra, at 486. Wong Sun v.

United States, 371 U. S. 471, 481-482; Katz v. United

States, 389 U. S. 347, 356-357.

In this case, the determination of probable cause was

made by the chief “government enforcement agent” of

the State—the Attorney General—who was actively in

6 COOLIDGE v. NEW HAMPSHIRE

charge of the investigation and later was to be chief

prosecutor at the trial. To be sure, the determination

was formalized here by a writing bearing the title “Search

Warrant,” whereas in Johnson there was no piece of paper

involved, but the State has not attempted to uphold the

warrant on any such artificial basis. Rather, the State

argues that the Attorney General, who was unquestion-

ably authorized as a justice of the peace to issue warrants

under then existing state law, did in fact act as a “neutral

and detached magistrate.” Further, the State claims that

any magistrate, confronted with the showing of probable

cause made by the Manchester chief of police, would

have issued the warrant in question. To the first proposi-

tion it is enough to answer that there could hardly be a

more appropriate setting than this for a per se rule of

disqualification rather than a case-by-case evaluation of

all the circumstances. Without disrespect to the state

law enforcement agent here involved, the whole point of

the basic rule so well expressed by Mr. Justice Jackson

is that prosecutors and policemen simply cannot be asked

to maintain the requisite neutrality with regard to their

own investigations—the “competitive enterprises” which

must rightly engage their single minded attention.’ - Cf.

Mancusi v. DeForte, 392 U. S. 364, 371. As for the

proposition that the existence of probable cause renders

noncompliance with the warrant procedure an irrelevance,

it is enough to cite Agnello v. United States, 269 U. S. 20,

33, decided in 1925:

“Belief, however well founded, that an article sought

is concealed in a dwelling house furnishes no justi-

fication for a search of that place without a warrant.

’ After hearing the Attorney General’s testimony on the issuance

of the warrants, the trial judge said:

“T found that an impartial Magistrate would have done the same

as you did. I don’t think, in all sincerity, that I would expect

that you could wear two pairs of shoes.”

COOLIDGE v. NEW HAMPSHIRE 7

And such searches are held unlawful notwithstanding

facts unquestionably showing probable cause.”

See also Jones v. United States, 357 U. S. 493, 497-498;

Silverthorne Lumber Co. v. United States, 251 U. S. 385,

392. (“[T]he rights . . . against unlawful search and

seizure are to be protected even if the same result might

have been achieved in a lawful way.”)

But the New Hampshire Supreme Court, in upholding

the conviction, relied upon the theory that even if the

warrant procedure here in issue would clearly violate the

standards imposed on the Federal Government by the

Fourth Amendment, it is not forbidden the States under

the Fourteenth. This position was premised on a pas-

sage from the opinion of this Court in Ker v. California,

374 U. S. 23, 31:

“Preliminary to our examination of the search and

seizure involved here, it might be helpful for us to

indicate what was not decided in Mapp [v. Ohio, 367

U. S. 643]. First, it must be recognized that the

‘principles governing the admissibility of evidence in

federal criminal trials have not been restricted .. .

to those derived solely from the Constitution. In

the exercise of its supervisory authority over the ad-

ministration of criminal justice in the federal

courts . . . this Court has . . . formulated rules of

evidence to be applied in federal criminal prosecu-

tions.’ McNabb v. United States, 318 U. S. 332,

341 . . . Mapp, however, established no assump-

tion by this Court of supervisory authority over state

courts, . . . and, consequently, it implied no total

obliteration of state laws relating to arrests and

searches in favor of federal law. Mapp sounded no

death knell for our federalism; rather, it echoed the

sentiment of Elkins v. United States, supra, at 221,

that ‘a healthy federalism depends upon the avoid-

ance of needless conflict between state and federal

ee 4

8 COOLIDGE v. NEW HAMPSHIRE

courts’ by itself urging that ‘[f]ederal-state coopera-

tion in the solution of crime under constitutional

standards will be promoted, if only by recognition of

their now mutual obligation to respect the same

fundamental criteria in their approaches.’ 367 U.S.,

at 658.” (Emphasis in Ker.)

It is urged that the New Hampshire statutes which at

the time of the searches here involved permitted a law

enforcement officer himself to issue a warrant was one of

those “workable rules governing arrests, searches and

seizures to meet ‘the practical demands of effective crim-

inal investigation and law enforcement’ in the States,”

id., at 34, authorized by Ker.

That such a procedure was indeed workable from the

point of view of the police is evident from testimony at

the trial in this case:

“The Court: You mean that another police officer

issues these [search warrants]?

“The Witness: Yes. Capcain Couture and Cap-

tain Shea and Captain Loveren are J. P.’s.

“The Court: Well, let me ask you, Chief, your

answer is to the effect that you never go out of the

department for the Justice of the Peace?

“The Witness: It hasn’t been our—policy to go out

of the department.

“Q. Right. Your policy and experience, is to

have a fellow police officer take the warrant in the

capacity of Justice of the Peace?

“A. That has been our practice.”

But it is too plain for extensive discussion that this now

abandoned New Hampshire method of issuing “search

warrants” violated a fundamental premise of both the

Fourth and Fourteenth Amendments—a premise fully

developed and articulated long before this Court’s de-

cisions in Ker v. California, supra, and Mapp v. Ohio,

COOLIDGE v. NEW HAMPSHIRE 9

367 U. S. 643. As Mr. Justice Frankfurter put it in Wolf

y. Colorado, 338 U. S. 25, 27-28:

“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 against the States through

the Due Process 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 ... .”

We find no escape from the conclusion that the seizure

and search of the Pontiac automobile cannot constitu-

tionally rest upon the warrant issued by the state official

who was the chief investigator and prosecutor in this case.

Since he was not the neutral and detached magistrate re-

quired by the Constitution, the search stands on no firmer

ground than if there had been no warrant at all. If the

seizure and search are to be justified, they must, there-

fore, be justified on some other theory.

II

The State proposes three distinct theories to bring the

facts of this case within one or another of the exceptions

to the warrant requirement. In considering them, we

must not lose sight of the Fourth Amendment’s funda-

mental guarantee. Mr. Justice Bradley’s admonition in

his opinion for the Court almost a century ago in Boyd

v. United States, 116 U. S. 616, 635, is worth repeating

here:

“It may be that it is the obnoxious thing in its

mildest and least repulsive form; but illegitimate

and unconstitutional practices get their first footing

in that way, namely, by silent approaches and slight

10 COOLIDGE v. NEW HAMPSHIRE

deviations from legal modes of procedure. This can

only be obviated by adhering to the rule that con-

stitutional provisions for the security of person and

property should be liberally contrued. A close and

literal construction deprives them of half their effi-

cacy, ana leads to gradual depreciation of the right,

as if it consisted more in sound than in substance.

It is the duty of the courts to be watchful for the

constitutional rights of the citizen, and against any

stealthy encroachments thereon.” *

Thus the most basic constitutional rule in this area is

that “searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated

exceptions.” ° The exceptions are “jealously and care-

fully drawn,” * and there must be “a showing by those

*See also Gouled v. United States, 255 U.S. 298, 303-304 (1921):

“It would not be possible to add to the emphasis with which

the framers of our Constitution and this court . . . have declared

the importance to political liberty and to the welfare of our country

of the due observance of the rights guaranteed under the Constitu-

tion by these two Amendments [the Fourth and Fifth]. The effect

of the decisions cited is: that such rights are declared to be

indispensable to the ‘full enjoyment of personal security, personal

liberty and private property’; that they are to be regarded as of

the very essence of constitutional liberty; and that the guaranty

of them is as important and as imperative as are the guaranties

of the other fundamental rights of the individual citizen—the right,

to trial by jury, to the writ of habeas corpus and to due process

of law. It has been repeatedly decided that these Amendments

should receive a liberal construction, so as to prevent stealthy

encroachment upon or ‘gradual depreciation’ of the rights secured

by them, by imperceptible practice of courts or by well-intentioned

but mistakenly over-zealous executive officers.”

See also Go-Bart Importing Co. v. United States, 282 U. S. 344, 357.

5 Katz v. United States, 389 U.S. 347, 357.

& Jones v. United States, 357 U.S. 493, 499.

COOLIDGE v. NEW HAMPSHIRE 11

who seek exemption . . . that the exigencies of the situ-

ation made that course imperative.” ’ “(T]he burden is

on those seeking the exemption to show the need for it.” *

In times of unrest, whether caused by crime or racial

conflict or fear of internal subversion, this basic law and

the values that it represents may appear unrealistic or

“extravagant” to some. But the values were those of

the authors of our fundamental constitutional concepts.

In times not altogether unlike our own they won—by

legal and constitutional means in England,’ and by

revolution on this continent—a right of personal security

against arbitrary intrusions by official power. If times

have changed, reducing every man’s scope to do as he

pleases in an urban and industrial world, the changes

have made the values served by the Fourth Amendment

more, not less, important.’

A

The State’s first theory is that the seizure and subse-

quent search of Coolidge’s Pontiac on February 19 were

“incident” to a valid arrest. We assume that the arrest of

Coolidge inside his house was valid, so that the first condi-

tion of a warrantless “search incident” is met. Whiteley

v. Wyoming Penitentiary Warden, —- U. 8. —, —.

And since the events in issue took place in 1964, we

assess the State’s argument in terms of the law as it

existed before Chimel v. California, 395 U.S. 752, which

substantially restricted the “search incident” exception

to the warrant requirement, but did so only prospectively.

Williams v. United States, —- U. S. ——. But even

under pre-Chimel law, the State’s position is untenable.

7 McDonald v. United States, 335 U.S. 451, 456.

® United States v. Jeffers, 342 U.S. 48, 51.

*See Entick v. Carrington, 19 How. St. Tr. 1029 (1765), and

Wilkes v. Wood, 19 How. St. Tr. 1153 (1763).

© See Elkins v. United States, 364 U.S. 206.

12 COOLIDGE v. NEW HAMPSHIRE

The leading case in the area before Chimel was United

States v. Rabinowitz, 339 U. S. 56, which was taken to

stand “for the propositon, inter alia, that a warrantless

search ‘incident to a lawful arrest’ may generally extend

to the area that is considered to be in the ‘possession’ or

under the ‘control’ of the person arrested.” Chimel,

supra, at 760. In this case, Coolidge was arrested inside

his house; his car was outside in the driveway. The car

was not touched until Coolidge had been removed from

the scene. It was then seized and taken to the station,

but it was not actually searched until the next day.

First, it is doubtful whether the police could have

carried out a contemporaneous search of the car under

Rabinowitz standards. For this Court has repeatedly

held that, even under Rabinowitz, “[a] search may be in-

cident to an arrest ‘only if it is substantially contempora-

neous with the arrest and is confined to the immediate

vicinity of the arrest. .. .’” Vale v. Louisiana, 399 U.S.

30, 33, quoting from Shipley v. California, 395 U. S. 818,

819, quoting from Stoner v. California, 376 U.S. 483, 486.

(Emphasis in original.) Cf. Agnello v. United States,

269 U. S. 20, 30-31; James v. Louisiana, 382 U. S. 36.

These cases make it clear beyond any question that a

lawful pre-Chimel arrest of a suspect outside his house

could never by itself justify a warrantless search inside the

house. There is nothing in search-incident doctrine (as

opposed to the special rules for automobiles and evidence

in “plain view,” to be considered below) that suggests

a different result where the arrest is made inside the

house and the search outside and at some distance away.”

11 The suggestion in Part III A of the dissenting opinion of Mr.

Justice Buack that this represents the formulation of “a per se

rule reaching far beyond” Chimel v. California, 395 U.S. 752, post, at

——, is mistaken. The question discussed here is whether under pre-

Chimel law the police could, contemporaneously with the arrest of

COOLIDGE v. NEW HAMPSHIRE 13

Even assuming, arguendo, that the police might have

searched the Pontiac in the driveway when they arrested

Coolidge in the house, Preston v. United States, 376 U. S.

364, makes plain that they could not legally seize the car,

remove it, and search it at their leisure without a war-

rant. In circumstances virtually identical to those here,

Mr. Justice Buack’s opinion for a unanimous Court held

that “[o]nce an accused is under arrest and in custody,

then a search [of his car] made at another place, without

a warrant, is simply not incident to the arrest.” Id., at

367. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216.

Cf. Chambers v. Maroney, 399 U. 8. 42,47. Search inci-

dent doctrine, in short, has no applicability to this case.’*

‘uB

The second theory put forward by the State to justify

a warrantless seizure and search of the Pontiac car is

that under Carroll v. United States, 267 U. S. 132, the

police may make a warrantless search of an automobile

whenever they have probable cause to do so, and, under

our decision last Term in Chambers v. Maroney, 399

U. S. 42, whenever the police may make a legal con-

temporaneous search under Carroll, they may also seize

Coolidge inside his house, make a search of his car for evidence—i. e.,

the particles later introduced at his trial. There can be no question

that after Chimel, such a search could not be justified as “incident”

to the arrest, since Chimel held that a search so justified can extend

only to the “arrestee’s person and the area ‘within his immediate

control’—construing that phrase to mean the area from within which

he might gain possession of a weapon or destructible evidence.”

395 U. S., at 763. The quite distinct question whether the police

were entitled to seize the automobile as evidence in plain view is dis-

cussed in Part II C below. Cf. n. 24 infra.

2 Cooper v. California, 386 U. S. 58, is not in point, since there

the State did not rely on the theory of a search incident to arrest,

but sought to justify the search on other grounds. /d., at 60. Mr.

Justice Buack’s opinion for the Court in Cooper reaffirmed Preston

v. United States, 376 U. S. 364.

14 COOLIDGE v. NEW HAMPSHIRE

the car, take it to the police station, and search it there.

But even granting that the police had probable cause

to search the car, the application of the Carroll case

to these facts would extend it far beyond ita original

rationale.

Carroll did indeed hold that “contraband goods con-

cealed and illegally transported in an automobile or

other vehicle may be searched for without a warrant,” ®

provided that “the seizing officer shall have reasonable

or probable cause for believing that the automobile

which he stops and seizes has contraband liquor therein

which is being illegally transported.” ** Such searches

had been explicitly authorized by Congress, and, as we

have pointed out elsewhere,” in the conditions of the time

“Tajn automobile . . . was an almost indispensable in-

strumentality in large-scale violation of the National

Prohibition Act, and the car itself therefore was treated

somewhat as an offender and became contraband.” In

two later cases,** each involving an occupied automobile

stopped on the open highway and searched for contra-

band liquor, the Court followed and reaffirmed Carroll."

And last Term in Chambers, supra, we did so again.

18 267 U.S., at 153.

14 Jd., at 156.

15 United States v. Di Re, 332 U.S. 581, 586.

16 Husty v. United States, 282 U. S. 694; Brinegar v. United

States, 338 U.S. 160.

17 A third case that has sometimes been cited as an application

of Carroll v. United States, 267 U.S. 132, is Scher v. United States,

305 U.S. 251. There, the police were following an automobile which

they had probable cause to believe contained a large quantity of

contraband liquor. The facts were as follows:

The driver

“turned into a garage a few feet back of his residence and within

the curtilage. One of the pursuing officers left their car and fol-

lowed. As petitioner was getting out of his car this officer ap-

proached, announced his official character, and stated he was

informed that the car was hauling bootleg liquor. Petitioner re-

COOLIDGE v. NEW HAMPSHIRE 15

The underlying rationale of Carroll and of all the cases

which have followed it is that there is

“a necessary difference between a search of a store,

dweiiing house or other structure in respect of which

a proper Official warrant readily may be obtained,

and a search of a ship, motor boat, wagon or auto-

mobile, for contraband goods, where it is not prac-

ticable to secure a warrant because the vehicle can

be quickly moved out of the locality or jurisdiction

in which the warrant must be sought.” 267 U. S.,

at 153. (Emphasis supplied.)

As we said in Chambers, supra, at 51, “exigent circum-

stances” justify the warrantless search of “an automobile

stopped on the highway,” where there is probable cause,

because the car is “movable, the occupants are alerted,

and the car’s contents may never be found again if a

warrant must be obtained.” “[T]he opportunity to

search is fleeting ....” (Emphasis supplied.)

plied, ‘just a little for a party.’ Asked whether the liquor was tax

paid, he replied that it was Canadian whiskey; also, he said it was

in the trunk at the rear of the car. The officer opened the trunk

andfound....” 305 0U.S., at 253.

The Court held:

“Considering the doctrine of Carroll v. United States, 267 U. S.

132 . . . and the application of this to the facts there disclosed, it

seems plain enough that just before he entered the garage the

following officers properly could have stopped petitioner’s car, made

search, and put him under arrest. So much was not seriously con-

troverted at the argument.

“Passage of the car into the open garage closely followed by the

observing officer did not destroy this right. No search was made

of the garage. Examination of the automobile accompanied an

arrest, without objection and upon admission of probable guilt.

The officers did nothing either unreasonable or oppressive. Agnello

v. United States, 269 U. S. 20, 30; Wisniewski v. United States,

47 F. 2d 825, 826 [CCA6 1931].” 305 U.S., at 254-255.

Both Agnello, at the page cited, and Wisniewski dealt with the

admissibility of evidence seized during a search incident to a lawful

arrest.

16 COOLIDGE v. NEW HAMPSHIRE

In this case, the police had known for some time of

the probable role of the Pontiac car in the crime.

Coolidge was aware that he was a suspect in the Mason

murder, but he had been extremely cooperative through-

out the investigation, and there was no indication that

he meant to flee. He had already had ample oppor-

tunity to destroy any evidence he thought incriminating.

There is no suggestion that, on the night in question,

the car was being used for any illegal purpose, and it

was regularly parked in the driveway of his house. The

opportunity for search was thus hardly “fleeting.” The

objects which the police are assumed to have had prob-

able cause to search for in the car were neither stolen

nor contraband nor dangerous.

When the police arrived at the Coolidge house to arrest

him, two officers were sent to guard the back door while

the main party approached from the front. Coolidge

was arrested inside the house, without resistance of any

kind on his part, after he had voluntarily admitted the

officers at both front and back doors. There was no way

in which he could conceivably have gained access to the

eutomobile after the police arrived on his property.

When Coolidge had been taken away, the police informed

Mrs. Coolidge, the only other adult occupant of the

house, that she and her baby must spend the night else-

where and that she could not use either of the Coolidge

cars. Two police officers then drove her in a police car

to the house of a relative in another town, and they

stayed with her there until around midnight, long after

the police had had the Pontiac towed to the station

house. The Coolidge premises were guarded throughout

the night by two policemen.”

18Tt is frequently said that occupied automobiles stopped on the

open highway may be searched without a warrant because they

are “mobile,” or “movable.” No other basis appears for Mr. Justice

Warrs’s suggestion in his dissenting opinion that we should “treat

COOLIDGE v. NEW HAMPSHIRE 17

The word “automobile” is not a talisman in whose

presence the Fourth Amendment fades away and dis-

appears. And surely there is nothing in this case to

invoke the meaning and purpose of the rule of Carroll v.

United States—no alerted criminal bent on flight, no

fleeting opportunity on an open highway after a hazard-

ous chase, no contraband or stolen goods or weapons,

no confederates waiting to move the evidence, not even

the inconvenience of a special police detail to guard the

immobilized automobile. In short, by no possible stretch

of the legal imagination can this be made into a case

where “it is not practicable to secure a warrant,”

searches of automobiles as we do the arrest of a person.” Post, at

—. In this case, it is of course true that even though Coolidge

was in jail, his wife was miles away in the company of two plain-

clothesmen, and the Coolidge property was under the guard of two

other officers, the automobile was in a literal sense “mobile.” A per-

son who had the keys and could slip by the guard could drive it

away. We attach no constitutional significance to this sort of

mobility.

First, a good number of the containers which the police might

discover on a person’s property and want to search are equally

movable, e. g., trunks, suitcases, boxes, briefcases, and bags. How

are such objects to be distinguished from an unoccupied automo-

bile—not then being used for any illegal purpose—sitting on the

owner's property? It is true that the automobile has wheels and

its own locomotive power. But given the virtually universal avail-

ability of automobiles in our society there is little difference be-

tween driving the container itself away and driving it away in a

vehicle brought to the scene for that purpose. Of course if there

is a criminal suspect close enough to the automobile so that he

might get a weapon from it or destroy evidence within it, the police

may make a search of appropriately limited scope. Chimel v.

California, 395 U. S. 752. See II A of the text, supra. But if

Carroll v. United States, 267 U.S. 132, permits a warrantless search

of an unoccupied vehicle, on private property and beyond the scope

of a valid search incident to an arrest, then it would permit as well

a warrantless search of a suitcase or a box. We have found no case

that suggests such an extension of Carroll. See nn. 16, 17, supra.

j

j

|

18 COOLIDGE v. NEW HAMPSHIRE

Carroll, supra, at 153, and the “automobile exception,”

despite its label, is simply irrelevant.’

Since Carroll would not have justified a warrantless

search of the Pontiac at the time Coolidge was arrested,

the later search at the station house was plainly illegal,

at least so far as the automobile exception is concerned.

Chambers, supra, is of no help to the State, since that

case held only that, where the police may stop and

search an automobile under Carroll, they may also seize

it and search it later at the police station.” Rather, this

19 Cf. United States v. Payne, 429 F. 2d 169 (CA9 1970). In that

case, two couples were camping in an individually allotted campsite

in Yosemite National Park. During the evening, an off-duty police-

man camping with his family in an adjoining site observed the two

couples smoking a substance he believed to be marihuana and also

observed them making what he thought “furtive” movements to re-

move objects he thought to be drugs from the glove compartment

of a car parked nearby. He summoned a park ranger, and the two

entered the campsite. They found that one of the couples was pre-

paring to bed down for the night, while the couple to whom the car

belonged were visiting in another campsite. The officers searched the

unoccupied parked automobile, found 12 Seconal tablets, and arrested

the couple who had stayed behind. The Govenment attempted to

uphold the search under Carroll, supra, and Brinegar, supra. The

Court of Appeals answered:

“While it is true that the Supreme Court has enunciated slightly

different rules concerning search of an automobile without a war-

rant, the rationale is apparently based upon the fact that a ‘vehicle

can be quickly moved out of the locality or jurisdiction in which

the warrant must be sought.’ Chimel v. California, 395 U. S. 752,

764 .... In the instant case the search of the Volkswagen cannot

be justified upon this reasoning. There is no indication in the rec-

ord that the appellant or any of his party were preparing to leave,

and quite to the contrary it is clear that appellant was bedding down

for the evening and that there was ample time to secure the necessary

warrant for the search of the car had [the Park Ranger] believed

there was probable cause to seek one.” 429 F. 2d, at 171-172.

2° Part III B of the dissenting opinion of Mr. Justice Back

argues with vehemence that this case must somehow be controlled by

Chambers v. Maroney, 399 U. S. 42, yet the precise applicability of

COOLIDGE v. NEW HAMPSHIRE 19

case is controlled by Dyke v. Taylor Implement Mfg. Co.,

supra. There the police lacked probable cause to seize

or search the defendant’s automobile at the time of his

arrest, and this was enough by itself to condemn the

subsequent search at the station house. Here there was

probable cause, but no exigent circumstances justified the

police in proceeding without a warrant. As in Dyke, the

later search at the station house was therefore illegal.”

Chambers is never made clear. On its face, Chambers purports to

deal only with situations in which the police may legitimately make

a warrantless search under Carroll v. United States, 267 U. 8. 132.

Since the Carroll rule does not apply in the circumstances of this

case, the police could not have searched the car without a warrant

when they arrested Coolidge. Thus the argument of the dissent

must be that Chambers somehow operated sub silentio to extend the

basic doctrine of Carroll. It is true that the actual search of the

automobile in Chambers was made at the police station many hours

after the car had been stopped on the highway, when the car was

no longer movable, any “exigent circumstances” had passed, and,

for all the record shows, there was a magistrate easily available.

Nonetheless, the analogy to this case is misleading. The rationale of

Chambers is that given a justified initial intrusion, there is little

difference between a search on the open highway and a later search

at the station. Here, we deal with the prior question of whether the

initial intrusion is justified. For this purpose, it seems abundantly

clear that there is a significant constitutional difference between

stopping, seizing, and searching a car on the open highway, and

entering private property to seize and search an unoccupied, parked

vehicle not then being used for any illegal purpose. That the police

may have been legally on the property in order to arrest Coolidge

is of course immaterial, since, as shown in II A of the text, supra,

that purpose could not authorize search of the car even under United

States v. Rabinowitz, 339 U. S. 56.

"Cooper v. California, 386 U. S. 58, is no more in point here

than in the context of a search incident to a lawful arrest. See

n. 12, supra. In Cooper, the seizure of the petitioner’s car was

mandated by California statute, and its legality was not questioned.

The case stands for the proposition that, given an unquestionably

legal seizure, there are special circumstances which may validate

a subsequent warrantless search. Cf. Chambers, supra. The case

20 COOLIDGE v. NEW HAMPSHIRE

C

The State’s third theory in support of the warrantless

seizure and search of the Pontiac car is that the car

itself was an “instrumentality of the crime,” and as such

might be seized by the police on Coolidge’s property be-

cause it was in plain view. Supposing the seizure to

be thus lawful, the case of Cooper v. California, 386 U. 8.

58, is said to support a subsequent warrantless search

at the station house, with or without probable cause.

Of course, the distinction between an “instrumentality

of crime” and “mere evidence” was done away with by

Warden v. Hayden, 387 U. S. 294, and we may assume

that the police had probable cause to seize the automo-

bile. But, for the reasons that follow, we hold that

the “plain view” exception to the warrant requirement is

inapplicable to this case. Since the seizure was therefore

illegal, it is unnecessary to consider the applicability of

Cooper, supra, to the subsequent search.**

It is well established that under certain circumstances

the police may seize evidence in plain view without a

warrant. But it is important to keep in mind that, in

the vast majority of cases, any evidence seized by the

police will be in plain view, at least at the moment of

seizure. The problem with the “plain view” doctrine has

been to identify the circumstances in which plain view

has legal significance rather than being simply the normal

concomitant of any search, legal or illegal.

An example of the applicability of the “plain view”

certainly should not be read as holding that the police can do

without a warrant at the police station what they are forbidden

to do without a warrant at the place of seizure.

22 Coolidge had admitted that on the night of Pamela Mason's

disappearance he had stopped his Pontiac on the side of the highway

opposite the place where the body was found. He claimed the car

was stuck in the snow. Two witnesses, who had stopped and asked

him if he needed help, testified that his car was not stuck.

23 See nn. 12 and 21, supra.

COOLIDGE v. NEW HAMPSHIRE 21

doctrine is the situation in which the police have a war-

rant to search a given area for specified objects, and in

the course of the search come across some other article

of incriminating character. Cf. Go-Bart Importing Co.

y. United States, 282 U. S. 344, 358; United States v.

Lefkowitz, 285 U. S. 452, 465; Steele v. United States,

267 U. S. 498; Stanley v. Georgia, 394 U. S. 557, 571

(Stewart, J., concurring). Where the initial intrusion

which brings the police within plain view of such an

article is supported not by a warrant, but by one of the

recognized exceptions to the warrant requirement, the

seizure is also legitimate. Thus the police may inad-

vertently come across evidence while in “hot pursuit” of

a fleeing suspect. Warden v. Hayden, supra. Cf. Hester

v. United States, 265 U. S. 57. And an object which

comes into view during a search incident to arrest that is

appropriately limited in scope under existing law may be

seized without a warrant.* Chimel v. California, 395

U. S. 752, 762-763. Finally, the “plain view” doctrine

* The “plain view” exception to the warrant requirement is not

in conflict with the law of search incident to a valid arrest expressed

in Chimel v. California, 395 U. S. 752. The Court there held that

“(t]here is ample justification . . . for a search of the arrestee’s

person and the area ‘within his immediate control’—construing that

phrase to mean the area from within which he might gain posses-

sion of a weapon or destructible evidence.” Jd., at 763. The “plain

view” doctrine would normally justify as well the seizure of other

evidence that came to light during such an appropriately limited

search. The Court in Chimel went on to hold that “[t]here is no

comparable justification, however, for routinely searching any room

other than that in which an arrest occurs—or, for that matter, for

searching through all the desk drawers or other closed or concealed

areas in that room itself. Such searches, in the absence of well-

recognized exceptions, may be made only under the authority of a

search warrant.” Jbid. Where, however, the arresting officer inad-

vertently comes within plain view of a piece of evidence, not con-

cealed, although outside of the area under the immediate control of

the arrestee, the officer may seize it, so long as the plain view was

obtained in the course of an appropriately limited search of the

arrestee.

22 COOLIDGE v. NEW HAMPSHIRE

has been applied where a police officer is not searching

for evidence against the accused, but nonetheless inad-

vertently comes across an incriminating object. Harris

v. United States, 390 U. S. 234; Frazier v. Cupp, 394 U.S.

731; Ker v. California, 374 U. S. 23, 43. Cf. Lewis

v. United States, 385 U. S. 206.

What the “plain view” cases have in common is that

the police officer in each of them had a prior justification

for an intrusion in the course of which he came inad-

vertently across a piece of evidence incriminating the

accused. The doctrine serves to supplement the prior

justification—whether it be a warrant for another object,

hot pursuit, search incident to lawful arrest, or some

other legitimate reason for being present unconnected

with a search directed against the accused—and permits

the warrantless seizure. Of course, the extension of the

original justification is legitimate only where it is imme-

diately apparent to the police that they have evidence

before them; the “plain view” doctrine may not be used

to extend a general exploratory search from one object

to another until something incriminating at last emerges.

Cf. Stanley v. Georgia, supra, 571-572 (Srewart, J.,

concurring).

The rationale for the “plain view” exception is evident

if we keep in mind the two distinct constitutional protec-

tions served by the warrant requirement. First, the

magistrate’s scrutiny is intended to eliminate altogether

searches not based on probable cause. The premise here

is that any intrusion in the way of search or seizure is

an evil, so that no intrusion at all is justified without a

careful prior determination of necessity. See, e. ¢.,

McDonald v. United States, 335 U. S. 451; Warden v.

Hayden, 387 U. S. 294; Katz v. United States, 389 U.S.

347; Chimel v. California, 395 U.S. 752, 761-762. The

second, distinct objective is that those searches deemed

necessary should be as limited as possible. Here, the

specific evil is the “general warrant” abhorred by the

COOLIDGE v. NEW HAMPSHIRE 23

colonists, and the problem is not that of intrusion per se,

but of a general, exploratory rummaging in a person’s

belongings. See, e. g., Boyd v. United States, 116 U. S.

616, 624-630; Marron v. United States, 275 U. S. 192,

195-196; Stanford v. Texas, 379 U.S. 476. The warrant

accomplishes this second objective by requiring a “par-

ticular description” of the things to be seized.

The “plain view” doctrine is not in conflict with the

first objective because plain view does not occur until

a search is in progress. In each case, this initial intru-

sion is justified by a warrant or by an exception such

as “hot pursuit” or search incident to a lawful arrest,

or by an extraneous valid reason for the officer’s pres-

ence. And given the initial intrusion, the seizure of an

object in plain view is consistent with the second objec-

tive, since it does not convert the search into a general

or exploratory one. As against the minor peril to Fourth

Amendment protections, there is a major gain in effective

law enforcement. Where, once an otherwise lawful

search is in progress, the police inadvertently come upon

a piece of evidence, it would often be a needless incon-

venience, and sometimes dangerous—to the evidence or

to the police themselves—to require them to ignore it

until they have obtained a warrant particularly de-

scribing it.

The limits on the doctrine are implicit in the statement

of its rationale. The first of these is that plain view

alone is never enough to justify the warrantless seizure

of evidence. This is simply a corollary of the familiar

principle discussed above, that no amount of probable

cause can justify a warrantless search or seizure absent

“exigent circumstances.” Incontrovertible testimony of

the senses that an incriminating object is on premises

belonging to a criminal suspect may establish the fullest

possible measure of probable cause. But even where the

object is contraband, this Court has repeatedly stated

and enforced the basic rule that the police may not enter

24 COOLIDGE v. NEW HAMPSHIRE

and make a warrantless seizure. Taylor v. United States,

286 U. S. 1; Johnson v. United States, 333 U. S. 10;

McDonald v. United States, 335 U. S. 451; Jones y.

United States, 357 U. S. 493, 497-498; Chapman y.

United States, 365 U. S. 610; Trupiano v. United States,

334 U. S. 699."

25 Trupiano v. United States, 334 U. S. 699, applied the principle

in circumstances somewhat similar to those here. Federal law en-

forcement officers had infiltrated an agent into a group engaged in

manufacturing illegal liquor. The agent had given them the fullest

possible description of the layout and equipment of the illegal

distillery. Although they had ample opportunity to do so, the

investigators failed to procure search or arrest warrants. Instead,

they staged a warrantless nighttime raid on the premises. After

entering the property, one of the officers looked through the doorway

of a shed, and saw one of the criminals standing beside an illegal

distillery. The officer entered, made a legal arrest, and seized the

still. This Court held it inadmissible at trial, rejecting the Govern-

ment’s argument based on “the long line of cases recognizing that

an arresting officer may look around at the time of the arrest and

seize those fruits and evidences of crime or those contraband articles

which are in plain sight and in his immediate and discernible pres-

ence.” 334 U. S., at 704. The Court reasoned that there was no

excuse whatever for the failure of the agents to obtain a warrant

before entering the property, and that the mere fact that a suspect

was arrested in the proximity of the still provided no “exigent

circumstance” to validate a warrantless seizure. The scope of the

intrusion permitted to make the valid arrest did not include a

warrantless search for and seizure of a still whose exact location

and illegal use were known well in advance. The fact that at the

time of the arrest the still was in plain view and nearby was there-

fore irrelevant. The agents were in exactly the same position as

the policemen in Taylor v. United States, 286 U. S. 1, who had

unmistakable evidence of sight and smell that contraband liquor

was stored in a garage, but nonetheles violated the Fourth Amend-

ment when they entered and seized it without a warrant.

Trupiano, to be sure, did not long remain undisturbed. The

extremely restrictive view taken there of the allowable extent of

a search and seizure incident to lawful arrest was rejected in United

States v. Rabinowitz, 339 U. S. 56. See Chimel v. California, 395

U. S. 752. The case demonstrates, however, the operation of the

general principle that “plain view” alone can never justify a war-

rantless seizure. Cf. n. 24 supra.

COOLIDGE v. NEW HAMPSHIRE 25

The second limitation is that the discovery of evidence

in plain view must be inadvertent.** The rationale of

the exception to the warrant requirement, as just stated,

26 None of the cases cited in Part III C of the dissenting opinion

of Mr. Justice Biack casts any doubt upon this conclusion. In

Steele v. United States, 267 U. S. 498, agents observed cases marked

“Whiskey” being taken into a building from a truck. On this basis,

they obtained a warrant to search the premises for contraband liquor.

In the course of the search, they came upon a great deal of whisky

and gin—not that they had seen unloaded—and various botiling

equipment, and seized all they found.

In Warden v. Hayden, 387 U. S. 294, the police entered and

searched a house in hot pursuit of a fleeing armed robber. The

Court pointed out that “[s]peed here was essential, and only a

thorough search of the house for persons and weapons could have

insured that Hayden was the only man present and that the police

had control of all weapons which could be used against them or to

effect an escape.” 387 U.S., at 299. The Court then established

with painstaking car- that the various articles of clothing seized were

discovered during a search directed at the robber and his weapons.

id., at 299-300.

In United States v. Lee, 274 U. S. 559, a Coast Guard patrol

approached a boat on the high seas at night. A search light was

turned on the boat and revealed cases of contraband. The liquor

subsequently seized was never introduced in evidence, but the seizing

officers were allowed to testify to what they had seen. As the Court

put it: “A later trespass by the officers, if any, did not render inad-

missible in evidence knowledge legally obtained.” 274 U.S., at 563.

In Marron v. United States, 275 U. S. 192, officers raided a

speakeasy with a warrant to search for and seize contraband liquor.

They arrested the bartender and seized a number of bills and other

papers in plain view on the bar. While searching a closet for liquor

they came across a ledger kept in the operation of the illegal business,

which they also seized. There is no showing whatever that these

seizures outside the warrant were planned in advance. The Marron

Court upheld them as “incident” to the arrest. The “plain view”

aspect of the case was later emphasized in order to avoid the implica-

tion that arresting officers are entitled to make an exploratory search

of the premises where the arrest occurs. See Go-Bart Importing Co.

v. United States, 282 U. 8S. 344, 358; United States v. Lefkowitz,

285 U. S. 452, 465; United States v. Rabinowitz, 339 U. S. 56, 78

(Frankfurt’r, J., dissenting). Thus Marron, like Steele, supra,

26 COOLIDGE v. NEW HAMPSHIRE

is that a plain view seizure will not turn an initially

valid (and therefore limited) search into a “general”

one, while the inconvenience of procuring a warrant to

cover an inadvertent discovery is great. But where the

discovery is anticipated, where the police know in ad-

vance the location of the evidence and intend to seize it,

the situation is altogether different. The requirement of

a warrant to seize imposes no inconvenience whetever, or

at least none which is constitutionally cognizable in a

legal system that regards warrantless searches as “per se

unreasonable” in the absence of “exigent circumstances.”

If the intial intrusion is bottomed upon a warrant

which fails to mention a particular object, though the

police know its location and intend to seize it, then there

is a violation of the express constitutional require-

ment of “warrants... particularly describing . . . [the]

things to be seized.” The initial intrusion may, of

course, be legitimated not by a warrant but by one of

the exceptions to the warrant requirement, such as hot

pursuit or search incident to lawful arrest. But to ex-

tend the scope of such an intrusion to the seizure of

objects—not contraband nor stolen nor dangerous in

themselves—which the police know in advance they will

find in plain view and intend to seize, would fly in the

face of the basic rule that no amount of probable cause

can justify a warrantless seizure.”

Warden, supra, and Lee, supra, can hardly be cited for the proposi-

tion that the police may justify a planned warrantless seizure by

maneuvering themselves within “plain view” of the object they want.

Finally, Ker v. California, 374 U. 8. 23, is fully discussed in n. 28

infra.

27 Mr. Justice Brack laments that the Court today “abolishes

seizure incident to arrest” (but see n. 24, supra), while Mr. Jus-

Tice Wuire no less forcefully asserts that the Court’s “new rule”

will “accomplish nothing.” In assessing these claims, it is well to

keep in mind that we deal here with a planned warrantless seizure.

This Court has never permitted the legitimation of a planned

warrantless seizure on plain view grounds, see n. 26, supra, and to

COOLIDGE v. NEW HAMPSHIRE 27

In the light of what has been said, it is apparent that

the “plain view” exception cannot justify the police seiz-

ure of the Pontiac car in this case. The police had ample

opportunity to obtain a valid warrant; they knew the

automobile’s exact description and location well in ad-

vance; they intended to seize it when they came upon

do so here would be flatly inconsistent with the existing body of

Fourth Amendment law. A long line of cases, of which those cited

in the text, at n. 25, supra, are only a sample, make it clear beyond

doubt that the mere fact that the police have legitimately obtained

a plain view of a piece of incriminating evidence is not enough to

justify a warrantless seizure. Although Mr. Justice Biack and

Mr. Justice Wurre appear to hold contrasting views of the import

of today’s decision, they are in agreement that this warrant require-

ment should be ignored whenever the seizing officers are able to

arrange to make an arrest within sight of the object they are after.

“The exceptions cannot be enthroned into the rule.” United States

v. Rabinowitz, 339 U. S. 56, 80 (Frankfurter, J., dissenting). We

recognized the dangers of allowing the extent of Fourth Amendment

protections to turn on the location of the arrestee in Chimel v. Cali-

fornia, 395 U. 8. 752, 767, noting that under the law of search inci-

dent to arrest as enunciated prior to C/wmel, “law enforcement officials

[had] the opportunity to engage in searches not justified by probable

cause, by the simple expedient of arranging to arrest suspects at

home rather than elsewhere.” Cf. Trupiano v. United States, supra,

n, 25, where the Court held:

“As we have seen, the existence of [the illegal still] and the de-

sirability of seizing it were known to the agents long before the

seizure and formed one of the main purposes of the raid. Likewise,

the arrest of Antoniole [the person found in the shed with the still] . . .

was a foreseeable event motivating the raid. But the precise loca-

tion of the petitioners at the time of their arrest had no relation

to the foreseeability or necessity of the seizure. The practicability

of obtaining a search warrant did not turn upon whether Antoniole

and the others were within the distillery building when arrested or

upon whether they were then engaged in operating the illicit equip-

ment... . Antonio'e might well have been outside the building

at that particular tine. If that had been the case and he had been

arrested in the farmyard, the entire argument advanced by the

Government in support of the seizure without warrant would col-

lapse. We do not believe that the applicability of the Fourth Amend-

28 COOLIDGE v. NEW HAMPSHIRE

Coolidge’s property. And this is not a case involving

contraband or stolen goods or objects dangerous in

themselves.”*

ment to the facts of this case depends upon such a fortuitous factor

as the precise location of Antoniole at the time of the raid.” 334

U. S., at 707-708. (Emphasis supplied.)

28 Ker v. California, 374 U. S. 23, is not to the contrary. In

that case, the police had probable cause to enter Ker’s apartment

and arrest him, and they made an entry for that purpose. They did

not have a search warrant, but the Court held that “time was of

the essence,” so that a warrant was unnecessary. As the police

entered the living room, Ker’s wife emerged from the adjacent

kitchen. One of the officers moved to the door of the kitchen,

looked in, and observed a brick of marihuana in plain view on

a table. The officer brought Ker and his wife into the kitchen,

questioned them, and, when they failed to explain the marihuana,

arrested them, and seized the contraband. The police then searched

the whole apartment and found various other incriminating evidence.

The Court held that the general exploratory search of the whole

apartment “was well within the limits upheld in Harris v. United

States [331 U. S. 145]” for a search incident to a lawful arrest.

The Court also rejected Ker’s claim that the seizure of the brick

of marihuana in the kitchen was illegal because the police had

“searched” for it (by going to the door of the kitchen and looking

in) before making any arrest. The Court reasoned that when Mrs.

Ker emerged from the kitchen it was reasonable for the officer to

go to the door and look in, and that when he saw the brick of

marihuana he was not engaged in any “search” at all. Once he

had arrested the Kers, the actual seizure of the brick was lawful

because “incident” to the arrest. 374 U.S8., at 42-43.

Ker is distinguishable from Coolidge on at least the following

grounds: in Ker, the Court found that “the officers entered the

apartment for the purpose of arresting George Ker,” rather than

for purposes of seizure or search, 374 U. S., at 42-43; exigent cir-

eumstances justified the failure to obtain a search warrant; the

discovery of the brick of marihuana was fortuitous; the marihuana

was contraband easily destroyed; and it was in the immediate

proximity of the Kers at the moment of their arrest so that the

seizure was unquestionably lawful under the search incident law of

the time, and might be lawful under the more restrictive standard

of Chimel v. California, 395 U.S. 752. Not one of these elements

was present in the case before us.

COOLIDGE v. NEW HAMPSHIRE 29

The seizure was therefore unconstitutional, and so was

the subsequent search at the station house. Since evi-

dence obtained in the course of the search was admitted

at Coolidge’s trial, the judgment must be reversed and

the case remanded to the New Hampshire Supreme

Court. Mapp v. Ohio, 367 U. 8. 643.

D

In his dissenting opinion today, Mr. Justice WHITE

marshals the arguments that can be made against our

interpretation of the “automobile” and “plain view”

exceptions to the warrant requirement. Beyond the

unstartling proposition that when a line is drawn there

is often not a great deal of difference between the situa-

tions closest to it on either side, there is a single theme

that runs through what he has to say about the two

exceptions. Since that theme is a recurring one in contro-

versies over the proper meaning and scope of the Fourth

Amendment, it seems appropriate to treat his views in

this separate section, rather than piecemeal.

Much the most important part of the conflict that

has been so notable in this Court’s attempts over a hun-

dred years to develop a coherent body of Fourth Amend-

meni law has been caused by disagreement over the

importance of requiring law enforcement officers to secure

warrants. Some have argued that a determination by a

magistrate of probable cause as a precondition of any

search or seizure is so essential that the Fourth Amend-

ment is violated whenever the police might reasonably

have obtained a warrant but failed to do so. Others

have argued with equal force that a test of reasonable-

ness, applied after the fact of search or seizure when the

police attempt to introduce the fruits in evidence, affords

ample safeguard for the rights in question, so that “[t]he

relevant test is not whether it is reasonable to procure

30 COOLIDGE v. NEW HAMPSHIRE

a search warrant, but whether the search was reason-

able.” *

Both sides to the controversy appear to recognize a

distinction between search and seizures that take place

on a man’s property—his home or office—and those car-

ried out elsewhere. It is accepted, at least as a matter

of principle, that a search or seizure carried out on a

suspect’s premises without a warrant is per se unreason-

able, unless the police can show that it falls within one

of a carefully defined set of exceptions based on the

presence of “exigent circumstances.” * As to other kinds

of intrusions, however, there has been disagreement about

the basic rules to be applied, as our cases concerning

automobile searches, electronic surveillance, street

searches and administrative searches make clear."

With respect to searches and seizures carried out on a

suspect’s premises, the conflict has been over the ques-

tion of what qualifies as an “exigent circumstance.” It

might appear that the difficult inquiry would be when

it is that the police can enter upon a person’s property

to seize his “person . . . papers, and effects,” without

prior judicial approval. The question of the scope of

search and seizivre once the police are on the premises

would apear to be subsidiary to the basic issue of when

intrusion is permissible. But the law has not developed

in this fashion.

The most common situation in which Fourth Amend-

ment issues have arisen has been that in which the

police enter the suspect’s premises, arrest him, and then

2° United States v. Rabinowitz, supra, at 66

30 See the cases cited in nn. 5-8, supra, and in the text at n. 25,

supra.

81See Carroll v. United States, supra, and cases discussed in

Part II B above (automobiles); Katz v. United States, supra (elec-

tronic surveillance) ; Terry v. Ohio, 392 U.S. 1; Sibron v. New York,

392 U. S. 40 (street searches); Camara v. Municipal Ct., 387

U. 8S. 523; See v. Seattle, 387 U. S. 541 (administrative searches).

COOLIDGE v. NEW HAMPSHIRE 31

carry out a warrantless search and seizure of evidence.

Where there is a warrant for the suspect’s arrest, the

evidence seized may later be challenged either on the

ground that the warrant was improperly issued because

there was not probable cause, or on the ground that

the police search and seizure went beyond that which

they could carry out as in incident to the execution of

the arrest warrant.** Where the police act without an

arrest warrant, the suspect may argue that an arrest

warrant was necessary, that there was no probable cause

to arrest,“ or that even if the arrest was valid, the search

and seizure went beyond permissible limits.** Perhaps

because each of these lines of attack offers a plethora of

litigable issues, the more fundamental question of when

the police may arrest a man in his house without a

warrant has been little considered in the federal courts.

This Court has chosen on a number of occasions to

assume the validity of an arrest and decide the case before

it on the issue of the scope of permissible warrantless

search. E. g., Chimel v. California, supra. The more

common inquiry has therefore been: “Assuming a valid

police entry for purposes of arrest, what searches and

seizures may the police carry out without prior authori-

zation by a magistrate?”

Two very broad, and sharply contrasting answers to

this question have been assayed by this Court in the

past. The answer of Trupiano v. United States, supra,

was that no searches and seizures could be legitimated

by the mere fact of valid entry for purposes of arrest,

so long as there was no showing of special difficulties in

% F. g., Giordenello v. United States, 357 U. S. 480.

88 B. g., Marron v. United States, supra; United States v. Rabino-

witz, supra.

“FE. 9., Wong Sun v. United States, 371 U. S. 471.

BE. g., Trupiano v. United States, supra; Warden v. Hayden,

supra; Ker v. Californza, supra.

32 COOLIDGE v. NEW HAMPSHIRE

obtaining a warrant for search and seizure. The con-

trasting answer in Harris v. United States, 331 U. S. 145,

and United States v. Rabinowitz, supra, was that a valid

entry for purposes of arrest served to legitimate warrant-

less searches and seizures throughout the premises where

the arrest occurred, however spacious those premises

might be.

The approach taken in Harris and Rabinowitz was

open to the criticism that it made it so easy for the police

to arrange to search a man’s premises without a warrant

that the Constitution’s protection of a man’s “effects”

became a dead letter. The approach taken in Trupiano,

on the other hand, was open to the criticism that it was

absurd to permit the police to make an entry in the dead

of night for purposes of seizing the “person” by main

force, and then refuse them permission to seize objects

lying around in plain sight. It is arguable that if the

very substantial intrusion implied in the entry and arrest

are “reasonable” in Fourth Amendment terms, then the

less intrusive search incident to arrest must also be

reasonable.

This argument against the 7’rupiano approach is of

little force so long as it is assumed that the police must,

in the absence of one of a number of defined exceptions

based on “exigent circumstances,” obtain an arrest war-

rant before entering a man’s house to seize his person.

If the Fourth Amendment requires a warrant to enter

and seize the person, then it makes sense as well to

require a warrant to seize other items that may be on

the premises. The situation is different, however, if the

police are under no circumstances required to obtain an

arrest warrant before entering to arrest a person they

have probable cause to believe has committed a felony.

If no warrant is ever required to legitimate the extremely

serious intrusion of a midnight entry to seize the person,

then it can be argued plausibly that a warrant should

COOLIDGE v. NEW HAMPSHIRE 33

never be required to legitimate a very sweeping search

incident to such an entry and arrest. If the arrest with-

out a warrant is per se reasonable under the Fourth

Amendment, then it is difficult to perceive why a search

incident in the style of Harris and Rabinowitz is not

per se reasonable as well.

It is clear, then, that the notion that the warrantless

entry of a man’s house in order to arrest him on probable

cause is per se legitimate is in fundamental conflict with

the basic principle of Fourth Amendment law that

searches and seizures inside a man’s house without war-

rant are per se unreasonable in the absence of some one of

a number of well defined “exigent circumstances.” This

conflict came to the fore in Chimel y. California, supra.

The Court there applied the basic rule that the “search

incident to arrest” is an exception to the warrant require-

ment and that its scope must therefore be strictly defined

in terms of the justifying “exigent circumstances.” The

exigency in question arises from the dangers of harm to

the arresting officer and of destruction of evidence within

the reach of the arrestee. Neither exigency can con-

ceivably justify the far-ranging searches authorized under

Harris and Rabinowitz. The answer of the dissenting

opinion of Mr. Justice WHITE in Chimel, supported by

no decision of this Court, was that a warrantless entry

for the purpose of arrest on probable cause is legitimate

and reasonable no matter what the circumstances. 395

U. S., at 776-780. From this it was said to follow that

the full-scale search incident to arrest was also reason-

able since it was a lesser intrusion. 395 U. S., at 772-

775.

The same conflict arises in this case. Since the police

knew of the presence of the automobile and planned all

along to seize it, there was no “exigent circumstance” to

justify their failure to obtain a warrant. The applica-

tion of the basic rule of Fourth Amendment law there-

34 COOLIDGE v. NEW HAMPSHIRE

fore requires that the fruits of the warrantless seizure be

suppressed. Mr. Justice WuitTe’s dissenting opinion,

however, argues once again that so long as the police

could reasonably make a warrantless nighttime entry

onto Coolidge’s property in order to arrest him, with no

showing at all of an emergency, then it is absurd to pre-

vent them from seizing his automobile as evidence of

the crime.

Mr. Justice Wuire takes a basically similar approach

to the question whether the search of the automobile in

this case can be justified under Carroll v. United States,

supra, and Chambers v. Maroney, supra. Carroll, on its

face, appears to be a classic example of the doctrine that

warrantless searches are per se unreasonable in the

absence of exigent circumstances. Every word in the

opinion indicates the Court’s adherence to the under-

lying rule and its care in delineating a limited exception.

Read thus, the case quite evidently does not extend to

the situation at bar. Yet if we take the viewpoint of a

judge called on only to decide in the abstract, after the

fact, whether the police have behaved “reasonably”

under all the circumstances—in short if we simply ignore

the warrant requirement—Carroll comes to stand for

something more. The stopping of a vehicle on the open

highway and a subsequent search amount to a major

interference in the lives of the occupants. Carroll held

such an interference to be reasonable without a warrant,

given probable cause. It may be thought to follow a

fortiori that the seizure and search here—where there

was no stopping and the vehicle was unoccupied—were

also reasonable, since the intrusion was less substantial,

although there were no exigent circumstances whatever.

Using reasoning of this sort, it is but a short step to the

position that it is never necessary for the police to obtain

a warrant before searching and seizing an automobile,

provided that they have probable cause. And Mr. Jus-

COOLIDGE v. NEW HAMPSHIRE 35

vice WHITE appears to adopt exactly this view when he

proposes that the Court should “treat searches of auto-

mobiles as we do the arrest of a person.”

If we were to accept Mr. Justice WHITe’s view that

warrantless entry for purposes of arrest and warrantless

seizure and search of automobiles are per se reasonable,

so long as the police have probable cause, it would be

difficult to see the basis for distinguishing searches of

houses and seizures of effects. If it is reasonable for the

police to make a warrantless nighttime entry for the pur-

pose of arresting a person in his bed, then surely it must

be reasonable as well to make a warrantless entry to

search for and seize vital evidence of a serious crime.

If the police may, without a warrant, seize and search

an unoccupied vehicle parked on the owner’s private

property, not being used for any illegal purpose, then it

is hard to see why they need a warrant io seize and

search a suitcase, a trunk, a shopping bag, or any other

portable container in a house, garage, or back yard.

The fundamental objection, then, to the line of argu-

ment adopted by Mr. Justice WuHirte in his dissent in

this case and in Chimel v. California, supra, is that it

proves too much. If we were to agree with Mr. Justice

Wuire that the police may, whenever they have prob-

able cause, make a warrantless entry for the purpose of

making an arrest, and that seizures and searches of auto-

mobiles are likewise per se reasonable given probable

cause, then by the same logic any search or seizure could

be carried out without a warrant, and we would simply

have read the Fourth Amendment out of the Constitu-

tion. Indeed, if Mr. Justice Wuire is correct that it

has generally been assumed that the Fourth Amendment

is not violated by the warrantless entry of a man’s house

for purposes of arrest, it might be wise to re-examine the

assumption. Such a re-examination “would confront us

with a grave constitutional question, namely, whether

eer;

36 COOLIDGE v. NEW HAMPSHIRE

the forceful nighttime entry into a dwelling to arrest a

person reasonably believed within, upon probable cause

that he had committed a felony, under circumstances

where no reason appears why an arrest warrant could

not have been sought, is consistent with the Fourth

Amendment.” Jones v. United States, 357 U. S. 493,

499-500.

None of the cases cited by Mr. Justice WHITE dis-

poses of this “grave constitutional question.” The case

of Warden v. Hayden, supra, where the Court elaborated

a “hot pursuit” justification for the pclice entry into

the defendant’s house without a warrant for his arrest,

certainly stands by negative implication for the proposi-

tion that an arrest warrant is required in the absence

of exigent circumstances. See also Davis v. Mississippi,

394 U. S. 721, 728; Wong Sun v. United States, 371

U. S. 471, 481-482. The Court of Appeals for the

District of Columbia Circuit, sitting en banc, has unani-

mously reached the same conclusion.** But we find it

unnecessary to decide the question in this case. The

rule that “searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated

exceptions,” *’ is not so frail that its continuing vitality

depends on the fate of a supposed doctrine of warrant-

less arrest. The warrant requirement has been a valued

part of our constitutional law for decades, and it has

determined the result in scores and scores of cases in

courts all over this country. It is not an inconvenience

to be somehow “weighed” against the claims of police

efficiency. It is, or should be, an important working

part of our machinery of government, operating as a

matter of course to check the “well-intentioned but mis-

36 United States v. Dorman, 435 F. 2d 385 (CADC 1969).

87 Katz v. United States, supra, at 357.

COOLIDGE v. NEW HAMPSHIRE 37

takenly overzealous executive officers” ** who are a part of

any system of law enforcement. If it is to be a true

guide to constitutional police action, rather than just a

pious phrase, then “(t]he exceptions cannot be enthroned

into the rule.” United States v. Rabinowitz, supra, at 80

(Frankfurter, J., dissenting). The confinement of the

exceptions to their appropriate scope was the function

of Chimel v. California, supra, where we dealt with the

assumption that a search “incident” to a lawful arrest

may encompass all of the premises where the arrest

occurs, however spacious. The “plain view” exception is

intimately linked with the search incident exception, as

the cases discussed in Part C above have repeatedly

shown. To permit warrantless plain-view seizures with-

out limit would be to undo much of what was decided

in Chimel, as the similar arguments put forward in

dissent in the two cases indicate clearly enough.

Finally, a word about Trupiano v. United States, supra.

Our discussion of “plain view” in Part C above cor-

responds with that given in Trupiano. Here, as in Tru-

piano, the determining factors are advance police knowl-

edge of the existence and location of the evidence, police

intention to seize it, and the ample opportunity for

obtaining a warrant. See 334 U.S., at 707-708 and n. 27

supra. However, we do not “reinstate” Trupiano, since

we cannot adopt all its implications. To begin with,

in Chimel v. California, supra, we held that a search

of the person of an arrestee and of the area under his

immediate control could be carried out without a war-

rant. We did not indicate there, and do not suggest

here, that the police must obtain a warrant if they antici-

pate that they will find specific evidence during the

course of such a search. See n. 24 supra. And as to

the automobile exception, we do not question the deci-

sions of the Court in Cooper v. California, supra, and

**Gouled v. United States, 255 U. 8. 298, 304.

38 COOLIDGE v. NEW HAMPSHIRE

Chambers v. Maroney, supra, although both are argu-

ably inconsistent with Trupiano.

Mr. Justice WuirTe’s dissent characterizes the coexist-

ence of Chimel, Cooper, Chambers, and this case as

“punitive,” “extravagant,” “inconsistent,” “without ap-

parent reason,” “unexplained,” and “inexplicable.” It is

urged upon us that we have here a “ready opportunity,

one way or another, to bring clarity and certainty to a

body of law that lower courts and law enforcement offi-

cials often find confusing.” Post, at ——. Presumably

one of the ways in which Mr. Justice WHITE believes

we might achieve clarity and certainty would be the

adoption of his proposal that we treat entry for purposes

of arrest and seizure of an automobile alike as per se

reasonable on probable cause. Such an approach might

dispose of this case clearly and certainly enough, but, as

we have tried to show above, it would cast into limbo

the whole notion of a Fourth Amendment warrant re-

quirement. And it is difficult to take seriously Mr. Jus-

Tice Wuite’s alternative suggestion that clarity and

certainty, as well as coherence and credibility, might also

be achieved by modifying Chimel and overruling Cham-

bers and Cooper. Surely, quite apart from his strong

disagreement on the merits, he would take vehement

exception to any such cavalier treatment of this Court’s

decisions.

Of course, it would be nonsense to pretend that our

decision today reduces Fourth Amendment law to com-

plete order and harmony. The decisions of the Court

over the years point in differing directions and differ

in emphasis. No trick of logic will make them all

perfectly consistent. But it is no less nonsense to sug-

gest, as does Mr. Justice WHITE, post, at —- - —, that

we cease today “to strive for clarity and consistency of

analysis,” or that we have “abandoned any attempt” to

find reasoned distinctions in this area. The time is long

COOLIDGE v. NEW HAMPSHIRE 39

when men believed that development of the law

must always proceed by the smooth incorporation of

new situations into a single coherent analytical frame-

work. We need accept neither the “clarity and cer-

tainty” of a Fourth Amendment without a warrant

requirement nor the facile consistency obtained by whole-

sale overruling of recently decided cases. A remark by

Mr. Justice HaRLAN concerning the Fifth Amendment

is applicable as well to the Fourth:

“There are those, I suppose, who would put the

‘liberal construction’ approach of cases like Miranda

[v. Arizona, 384 U. S. 436,] and Boyd v. United

States, 116 U. S. 616 (1886). side-by-side with the

balancing approach of Schmerber [v. California, 384

U. S. 757,] and perceive nothing more subtle than a

set of constructional antinomies to be utilized as con-

venient bootstraps to one result or another. But

I perceive in these cases the essential tension that

springs from the uncertain mandate which this pro-

vision of the Constitution gives to this Court.”

California v. Byers, —- U. S. —-, —— (concurring

opinion).

We are convinced that the result reached in this case

is correct, and that the principle it veflects—that the

police must obtain a warrant when they intend to seize

an object outside the scope of a valid search incident

to arrest—can be easily understood and applied by courts

and law enforcement officers alike. It is a principle that

should work to protect the citizen without overburdening

the police, and a principle that preserves and protects

the guarantees of the Fourth Amendment.

III

Because of the prospect of a new trial, the efficient

administration of justice counsels consideration of the

second substantial question under the Fourth and Four-

40 COOLIDGE v. NEW HAMPSHIRE

teenth Amendments presented by this case. The peti-

tioner contends that when the police obtained a rifle

and articles of his clothing from his home on the night

of Sunday, February 2, 1964, while he was being interro-

gated at the police station, they engaged in a search

and seizure violative of the Constitution. In order to

understand this contention, it is necessary to review in

some detail the circumstances of the February 2 episode,

A

The lie detector test administered to Coolidge in Con-

cord on the afternoon of the 2d was inconclusive as to

his. activities on the night of Pamela Mason’s disap-

pearance, but during the course of the test Coolidge

confessed to stealing $375 from his employer. After

the group returned from Concord to Manchester, the

interrogation about Coolidge’s movements on the night

of the disappearance continued, and Coolidge apparently

made a number of statements which the police imme-

diately checked out as best they could. The decision

to send two officers to the Coolidge house to speak with

Mrs. Coolidge was apparently motivated in part by a

desire to check his story against whatever she might say,

and in part by the need for some corroboration of his

admission to the theft from his employer. The trial

judge found as a fact, and the record supports him, that

at the time of the visit the police knew very little about

the weapon that had killed Pamela Mason. The bullet

that had been retrieved was of small calibre, but the

police were unsure whether the weapon was a rifle or

a pistol. During the extensive investigation following

the discovery of the body, the police had made it a

practice to ask all those questioned whether they owned

any guns, and to ask the owners for permission to run

tests on those which met the very general description

COOLIDGE v. NEW HAMPSHIRE 41

of the murder weapon. The trial judge found as a fact

that when the police visited Mrs. Coolidge on the night

of the 2d, they were unaware of the previous visit

during which Coolidge had shown other officers three

guns, and that they were not motivated by a desire to

find the murder weapon.

The two plainclothesmen asked Mrs. Coolidge whether

her husband had been at home on the night of the

murder victim’s disappearance, and she replied that he

had not. They then asked her if her husband owned

any guns. According to her testimony at the pretrial

suppression hearing, she replied, “Yes, I will get them

in the bedroom.” One of the officers replied, “We will

come with you.” The three went into the bedroom

where Mrs. Coolidge took all four guns out of the closet.

Her account continued:

“A. I believe I asked if they wanted the guns.

One gentleman said, ‘No;’ then the other gentleman

turned around and said, ‘We might as well take

them.’ I said, ‘If you would like them, you may

take them.’

“Q. Did you go further and say, ‘We have nothing

to hide.’?

“A. I can’t recall if I said that then or before.

I don’t recall.

“Q. But at some time you indicated to them

that as far as you were concerned you had nothing

to hide, and they might take what they wanted?

“A. That was it.

“Q. Did you feel at that time that you had

something to hide?

“A. No.”

The two policemen also asked Mrs. Coolidge what

her husband had been wearing on the night of the dis-

42 COOLIDGE v. NEW HAMPSHIRE

appearance. She then produced four pairs of trousers

and indicated that her husband had probably worn either

of two of them on that evening. She also brought out

a hunting jacket. The police gave her a receipt for

the guns and the clothing, and, after a search of the

Coolidge cars not here in issue, took the various articles

to the police station.

B

The first branch of the petitioner’s argument is that

when Mrs. Coolidge brought out the guns and clothing,

and then handed them over to the police, she was acting

as an “instrument” of the officials, complying with a

“demand” made by them. Consequently, it is argued,

Coolidge was the victim of a search and seizure within

the constitutional meaning of those terms. Since we

cannot accept this interpretation of the facts, we need

not consider the petitioner’s further argument that Mrs.

Coolidge could not or did not “waive” her husband’s

constitutional protection against unreasonable searches

and seizures.

Had Mrs. Coolidge, wholly on her own initiative,

sought out her husband’s guns and clothing and then

taken them to the police station to be used as evidence

against him, there can be no doubt under existing law

that the articles would later have been admissible in

evidence. Cf. Burdeau v. McDowell, 256 U. S. 465.

The question presented here is whether the conduct of

the police officers at the Coolidge house was such as to

make her actions their actions for purposes of the Fourth

and Fourteenth Amendments and their attendant exclu-

sionary rules. The test, as the petitioner’s argument

suggests, is whether Mrs. Coolidge, in light of all the

circumstances of the case, must be regarded as having

acted as an “instrument” or agent of the state when

she produced her husband’s belongings. Cf. United

COOLIDGE v. NEW HAMPSHIRE 43

States v. Goldberg, 330 F. 2d 30 (CA3), cert. denied 377

U. 8. 953 (1964); People v. Tarantino, 45 Cal. 2d 590,

290 P. 2d 505 (1955); see Byars v. United States, 273

U. S. 28; Gambino v. United States, 275 U. S. 310.

In a situation like the one before us there no doubt

always exist forces pushing the spouse to cooperate with

the police. Among these are the simple but often power-

ful convention of openness and honesty, the fear that

secretive behavior will intensify suspicion, and uncer-

tainty as to what course is most likely to be helpful to

the absent spouse. But there is nothing constitutionally

suspect in the existence, without more, of these incentives

to full disclosure or active cooperation with the police.

The exclusionary rules were fashioned “to prevent, not to

repair,” and their target is official misconduct. They

are “to compel respect for the constitutional guaranty in

the only effectively available way—by removing the in-

centive to disregard it.” Elkins v. United States, 364

U.S. 206, 217. But it is no part of the policy underlying

the Fourth and Fourteenth Amendments to discourage

citizens from aiding to the utmost of their ability in the

apprehension of criminals. If, then, the exclusionary

rule is properly applicable to the evidence taken from

the Coolidge house on the night of February 2, it must

be upon the basis that some type of unconstitutional

police conduct occurred.

Yet it cannot be said that the sista should have ob-

tained a warrant for the guns and clothing before they

set out to visit Mrs. Coolidge, since they had no intention

of rummaging around among Coolidge’s effects or of

dispossessing him of any of his property. Nor can it be

said that they should have obtained Coolidge’s permission

for a seizure they did not intend to make. There was

nothing to compel them to announce to the suspect that

they intended to question his wife about his movements

on the night of the disappearance or about the theft from

44 COOLIDGE v. NEW HAMPSHIRE

his employer. Once Mrs. Coolidge had admitted them,

the policemen were surely acting normally and properly

when they asked her, as they had asked those questioned

earlier in the investigation, including Coolidge himself,

about any guns there might be in the house. The ques-

tion concerning the clothes Coolidge had been wearing

on the night of the disappearance was logical and in no

way coercive. Indeed, one might doubt the competence

of the officers involved had they not asked exactly the

questions they did ask. And surely when Mrs. Coolidge

of her own accord produced the guns and clothes for in-

spection, rather than simply describing them, it was not

incumbent on the police to stop her or avert their eyes.

The crux of the petitioner’s argument must be that

when Mrs. Coolidge askec the policemen whether they

wanted the guns, they should have replied that they could

not take them, or have first telephoned Coolidge at the

police station and asked his permission to take them, or

have asked her whether she had been authorized by her

husband to release them. Instead, after one policeman

had declined the offer, the other turned and said, “We

might as well take them,” to which Mrs. Coolidge replied,

“If you would like them, you may have them.”

In assessing the claim that this course of conduct

amounted to a search and seizure, it is well to keep in

mind that Mrs. Coolidge described her own motive as

that of clearing her husband, and that she believed that

she had nothing to hide. She had seen her husband him-

self produce his guns for two other policemen earlier in

the week, and there is nothing to indicate that she real-

ized that he had offered only three of them for inspection

on that occasion. The two officers who questioned her

behaved, as her own testimony shows, with perfect cour-

tesy. There is not the slightest implication of an attempt

on their part to coerce or dominate her, or, for that mat-

ter, to direct her actions by the more subtle techniques of

COOLIDGE v. NEW HAMPSHIRE 45

suggestion that are available to officials in circumstances

like these. To hold that the conduct of the police here

was a search and seizure would be to hold, in effect, that

a criminal suspect has constitutional protection against

the adverse consequences of a spontaneous, good-faith

effort by his wife to clear him of suspicion.”

The judgment is reversed and the case is remanded to

the Supreme Court of New Hampshire for further pro-

ceedings not inconsistent with this opinion.

It is so ordered.

3° Cf. Note, 79 Harv. L. Rev. 1513, 1519 (1966); Note, 19 Stan.

L. Rev. 608 (1967).

SUPREME COURT OF THE UNITED STATES

No. 323.—Ocrosgr TERM, 1970

Edward H. Coolidge, Jr.,) . writ of Certiorari to the

sateen Supreme Court of New

Hampshire.

New Hampshire.

[June 21, 1971]

Mr. Justice HARLAN, concurring.

From the several opinions that have been filed in this

case it is apparent that the law of search and seizure is

due for an overhauling. State and federal law enforce-

ment officers and prosecutorial authorities must find quite

intolerable the present state of uncertainty, which extends

even to such an everyday question as the circumstances

under which police may enter a man’s property to arrest

him and seize a vehicle believed to have been used during

the commission of a crime.

I would begin this process of re-evaluation by over-

ruling Mapp v. Ohio, 367 U. S. 643 (1961), and Ker v.

California, 374 U. S. 23 (1963). The former of these

cases made the federal “exclusionary rule” applicable to

the States. The latter forced the States to follow all

the ins and outs of this Court’s Fourth Amendment deci-

sions, handed down in federal cases.

In combination Mapp and Ker have been primarily re-

sponsible for bringing about serious distortions and incon-

gruities in this field of constitutional law. Basically

these have had two aspects, as I believe an examination

of our more recent opinions and certiorari docket will

show. First, the States have been put in a federal mold

with respect to this aspect of criminal law enforcement,

thus depriving the country of the opportunity to observe

the effects of different procedures in similar settings. See,

2 COOLIDGE v. NEW HAMPSHIRE

e. g., Oaks, Studying the Exclusionary Rule in Search and

Seizure, 37 U. Chi. L. Rev. 665 (1970), suggesting that

the assumed “deterrent value” of the exclusionary rule

has never been adequately demonstrated or disproved,

and pointing out that because of Mapp all comparative

statistics are 10 years old and no new ones can be ob-

tained. Second, in order to leave some room for the

States to cope with their own diverse problems, there has

been generated a tendency to relax federal requirements

under the Fourth Amendment, which now govern state

procedures as well. For an illustration of that tendency

in another constitutional field, again resulting from the

infelicitous “incorporation” doctrine, see Williams y.

Florida, 399 U. S. 78 (1970). Until we face up to the

basic constitutional mistakes of Mapp and Ker, no solid

progress in setting things straight in search and seizure

law will, in my opinion, occur.

But for Mapp and Ker, I would have little difficulty

in voting to sustain this conviction, for I do not think

that anything the State did in this case could be said

to offend those values which are “at the core of the

Fourth Amendment.” Wolf v. Colorado, 338 U. S. 25,

27 (1949); ef. Irvine v. California, 347 U. S. 128 (1954);

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

Because of Mapp and Ker, however, this case must be

judged in terms of federal standards, and on that basis

I concur, although not without difficulty, in Parts I,

II-D, and III of the Court’s opinion and in the judgment

of the Court.* It must be recognized that the case is a

close one. The reason I am tipped in favor of Mr. Jus-

TICE STEWART’s position is that a contrary result in this

*Because of my views as to the retroactivity of Chimel v. Cali-

fornia, 395 U. S. 752 (1969), I do not believe the seizure of the

Pontiac can be upheld as incident to Coclidge’s arrest. See my sep-

arate opinion in Mackey v. United States, —- U. 8. —, — (1971).

COOLIDGE v. NEW HAMPSHIRE 3

case would, I fear, go far towards relegating the warrant

requirement of the Fourth Amendment to a position of

little consequence in federal search and seizure law, a

course which seems to me opposite to the one we took

in Chimel v. California, 395 U. S. 752 (1969), two Terms

gor scholarship has suggested that in emphasizing

the warrant requirement over the reasonableness of the

search the Court has “stood the fourth amendment on its

head” from a historical standpoint. T. Taylor, Two

Studies in Constitutional Interpretation 23-24 (1969).

This issue is perhaps most clearly presented in the case

of a warrantless entry into a man’s home to arrest him

on probable cause. The validity of such entry was left

open in Jones v. United States, 357 U. S. 493, 499-500

(1957), and although my Brothers WuirTe and Stewart

both feel that their contrary assumptions on this point

are at the root of their disagreement in this case, ante,

pp. 33-34; post, pp. 1-2, 11-12, the Court again leaves

the issue open. Ante, p. 36. In my opinion it does well

to do so. This matter should not be decided in a state

case not squarely presenting the issue and where it was

not fully briefed and argued. I intimate no view on this

subject, but until it is ripe for decision, hopefully in a

federal case, I am unwilling to lend my support to setting

back the trend of our recent decisions.

SUPREME COURT OF THE UNITED STATES

No. 323.—Ocrosrr TERM, 1970

Edward H. Coolidge, Jt.) weit of Certiorari to the

Petitioner, Supreme Court of New

v. Hampshire.

New Hampshire.

[June 21, 1971]

Mr. CuHreF JusTICE Burcer, dissenting in part and

concurring in part.

I join the dissenting opinion of Mr. Justice WHITE

and in Parts II and III of Mr. Justice Buack’s dissenting

opinion. I also agree with most of what is said in Part I

of Mr. Justice BLack’s opinion, but I am not prepared

to accept the proposition that the Fifth Amendment

requires the exclusion of evidence seized in violation of

the Fourth Amendment. I join in Part III of Mr.

Justice STEWART’s opinion,

This case illustrates graphicaily the monstrous price

we pay for the Exclusionary Rule in which we seem to

have imprisoned ourselves. See my dissent in Bivens

v. Six Unknown Named Agents of the Federal Narcotics

Bureau.

On the merits of the case I find not the slightest basis

in the record to reverse this conviction. Here again the

Court reaches out, strains and distorts rules which were

showing some signs of stabilizing, and directs a new trial

which will be held more than seven years after the crim-

inal acts charged.

Mr. Justice Stone, of the Minnesota Supreme Court,

called the kind of judicial functioning in which the Court

indulges today “bifurcating elements too infinitesimal te

be split.”

: This opinion is subject to formal revision before publication

preliminary rint of the Le States Reports. Readers are re-

cer 4 no tes, Wi e Reporter of Decisions, coceme Court of the

echingten, D.C. 20543, of any typographic —_ - other

errora, 18 0 4 — corrections may the pre-

fazeary prin

SUPREME COURT OF THE UNITED STATES

No. 323.—Ocroser Term, 1970

Edward H. Coolidge, Jr.. On Writ of Certiorari to the

ti

sie. oe Supreme Court of New

: Hampshire.

New Hampshire. P

[June 21, 1971]

Mr. Justice Buack, concurring and dissenting.

After a jury trial in a New Hampshire state court, pe-

titioner was convicted of murder and sentenced to life

imprisonment. Holding that certain evidence introduced

by the State was seized during an “unreasonable” search

and that the evidence was inadmissible under the judi-

cially created exclusionary rule of the Fourth Amendment,

the majority reverses that conviction. Believing that

the search and seizure here was reasonable and that the

Fourth Amendment properly construed contains no such

exclusionary rule, I dissent.

The relevant facts are these. Pamela Mason, a 14-

year-old school girl, lived with her mother and younger

brother in Manchester, New Hampshire. She occasion-

ally worked after school as a baby sitter and sought such

work by posting a notice on a bulletin board in a local

laundromat. On January 13, 1964, she arrived home

from school about 4:15 p.m. Pamela’s mother told her

that a man had called seeking a baby sitter for that

evening and said that he would call again later. About

4:30 p. m., after Pamela’s mother had left for her job

as a waitress at a nearby restaurant, Pamela received a

phone call. Her younger brother, who answered the call

but did not overhear the conversation, later reported that

2 COOLIDGE v. NEW HAMPSHIRE

the caller was a man. After the call, Pamela prepared

dinner for her brother and herself, then left the house

about 6 p. m. Her family never again saw her alive,

Eight days later, on January 21, 1964, Pamela’s frozen

body was discovered in a snow drift beside an inter-

state highway a few miles from her home. Her throat

had been slashed and she had been shot in the head.

Medical evidence showed that she died some time be-

tween 8 and 10 p. m. on January 13, the night she left

home.

A manhunt ensued. Two witnesses informed the po-

lice that about 9:30 p. m. on the night of the murder

they had stopped to offer.assistance to a man in a 195]

Pontiac automobile which was parked beside the inter-

state highway near the point where the little girl’s dead

body was later found. Petitioner came under suspicion

seven days after the body was discovered when one of

his neighbors reported to the police that petitioner had

been absent from his home between 5 and 11 p. m.

on January 13, the night of the murder. Petitioner

owned a 1951 Pontiac automobile that matched the

description of the car which the two witnesses reported

seeing parked where the girl’s body had been found.

The police first talked with petitioner at his home on the

evening of January 28, fifteen days after the girl was

killed, and arranged for him to come to the police station

the following Sunday, February 2, 1964. He went to the

station that Sunday and answered questions concerning

his activities on the night of the murder, telling the police

that he had been shopping in a neighboring town at the

time the murder was committed. During questioning,

petitioner confessed to having committed an unrelated

larceny trom his employer and was held overnight at the

police station in connection with that offense. On the

next day, he was permitted to go home.

COOLIDGE v. NEW HAMPSHIRE 3

While petitioner was being questioned at the police

station on February 2, two policemen went to petitioner’s

home to talk with his wife. They asked what firearms

the petitioner owned and his wife produced two shotguns

and two rifles which she voluntarily offered to the police.

Upon examination the University of Rhode Island Crim-

inal Investigation Laboratory concluded that one of the

firearms, a Mossberg .22 caliber rifle, had fired the bullet

found in the murdered girl’s brain.

Petitioner admitted that he was a frequent visitor to

the laundromat where Pamela posted her babysitting

notice and that he had been there on the night of the

murder. The following day a knife belonging to peti-

tioner, which could have inflicted the murdered girl’s

knife wounds, was found near that laundromat. The

police also learned that petitioner had unsuccessfully

contacted four different persons before the girl’s body

had been discovered in an attempt to fabricate an alibi

for the night of January 13.

On February 19, 1964, all this evidence was presented

to the state attorney general who was authorized under

New Hampshire law to issue arrest and search warrants.

The attorney general considered the evidence and issued

a warrant for petitioner’s arrest and four search warrants

including a warrant for the seizure and search of peti-

tioner’s Pontiac automobile.

On the day the warrants issued, the police went to the

petitioner’s residence and placed him under arrest. They

took charge of his 1951 Pontiac which was parked in

plain view in the driveway in front of the house, and,

two hours later, towed the car to the police station.

During the search of the automobile at the station, the

police obtained vacuum sweepings of dirt and other fine

particles which matched like sweepings taken from the

clothes of the murdered girl. Based on the similarity be-

4 COOLIDGE v. NEW HAMPSHIRE

tween the sweepings taken from petitioner’s automobile

and those taken from the girl's clothes, experts who testi-

fied at trial conec)ided that Pamela had been in the

petitioner’s car. The rifle given to the police by peti-

tioner’s wife was also received in evidence.

Petitioner challenges his conviction on the ground that

the rifle obtained from his wife and the vacuum sweep.

ings taken from his car were seized in violation of the

Fourth Amendment and were improperly admitted at

trial. With respect to the rifle voluntarily given to the

police by petitioner’s wife, the majority holds that it

was properly received in evidence. I agree. But the

Ceurt reverses petitioner’s conviction on the ground that

the sweepings taken from his car were seized during an

illegal search and for this reason the admission of the

sweepings into evidence violated the Fourth Amendment.

I dissent.

I

The Fourth Amendment prohibits unreasonable

searches and seizures. The Amendment says nothing

about consequences. It certainly nowhere provides for

the exclusion of evidence as the remedy for violation.

The Amendment states: “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 Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.” No examination of that text can

find an exclusionary rule by a mere process of construc-

tion. Apparently the first suggestion that the Fourth

Amendment somehow embodied a rule of evidence came

in Justice Bradley’s majority opinion in Boyd v. United

States, 116 U. S. 616 (1886). The holding in that case

was that ordinarily a person may not be compelled to

COOLIDGE v. NEW HAMPSHIRE 5

produce his private books and papers for use against

him as proof of crime. That decision was a sound appli-

cation of accepted principles of common law and the

command of the Fifth Amendment that no person shall

be compelled to be a witness against himself. But Jus-

tice Bradley apparently preferred to formulate a new

exclusionary rule from the Fourth Amendment rather

than rely on the already existing exclusionary rule con-

tained in the language of the Fifth Amendment. His

opinion indicated that compuisory production of such

evidence at trial violated the Fourth Amendment. Mr.

Justice Miller, with whom Chief Justice Waite joined,

concurred solely on the basis of the Fifth Amendment,

and explicitly refused to go along with Justice Bradley’s

novel reading of the Fourth Amendment. It was not

until 1914, some twenty-eight years after Boyd and when

no member of the Boyd Court remained, that the Court

in Weeks v. United States, 232 U. S. 383, stated that the

Fourth Amendment itself barred the admission of evi-

dence seized in violation of the Fourth Amendment.

The Weeks opinion made no express confession of a

break with the past. But if it was merely a proper

reading of the Fourth Amendment, it seems strange

that it took this Court nearly 125 years to discover the

true meaning of those words. The truth is that the

source of the exclusionary rule simply cannot be found

in the Fourth Amendment. That Amendment did not

when adopted, and does not now, contain any constitu-

tional rule barring the admission of illegally seized

evidence.

In striking contrast to the Fourth Amendment, the

Fifth Amendment states in express, unambiguous terms

that no person “shall be compelled in any criminal case

to be a witness against himself.” The Fifth Amendment

in and of itself directly and explicitly commands its own

exclusionary rule—a defendant cannot be compelled to

es

6 COOLIDGE v. NEW HAMPSHIRE

give evidence against himself. Absent congressional ac-

tion taken pursuant to the Fe ih Amendment, if evi-

dence is to be excluded, it must be under the Fifth

Amendment, not the Fourth. That was the point so

ably made in the concurring opinion of Justice Miller,

joined by Chief Justice Waite, in Boyd v. United States,

supra, and that was the thrust of my concurring opinion

in Mapp v. Ohio, 367 U. 8. 643 (1961).

The evidence seized by breaking into Mrs. Mapp’s

house and the search of all her possessions, was excluded

from evidence, not by the Fourth Amendment which

contains no exclusionary rule, but by the Fifth Amend-

ment which does. The introduction of such evidence

compels a man to be a witness against himself, and evi-

dence so compelled must be excluded under the Fifth

Amendment, not because the Court says so, bu: because

the Fifth Amendment commands it.

The Fourth Amendment provides a constitutional

means by which the Government can act to obtain evi-

dence to be used in criminal prosecutions. The people

are obliged to yield to a proper exercise of authority under

that Amendment.' Evidence properly seized under the

Fourth Amendment of course is admissible at trial. But

nothing in the Fourth Amendment provides that evidence

seized in violation of that Amendment must be excluded.

The majority holds thes evidence it views as im-

properly seized in violation of its ever changing concept

of the Fourth Amendment is inadmissible. The majority

treats the exclusionary rule as a judge-made rule of

evidence designed and utilized to enforce the majority's

own notions of proper police conduct. The Court today

1There are of course certain searches which constitutionally

cannot be authorized even with a search warrant or subpoena. See,

e. g.. Boyd v. United States, 116 U. S. 616 (1886); Rochin v. Cali-

fornia, 342 U.S. 165, 174 (1952) (Brack, J., concurring) ; Schmerber

v. California, 384 U. S. 757, 773 (1966) (Back, J., dissenting).

—

COOLIDGE v. NEW HAMPSHIRE 7

announces its new rules of police procedure in the name

of the Fourth Amendment, then holds that evidence

seized in violation of the new “guidelines” is automati-

cally inadmissible at trial. The majority does not pur-

port to rely on the Fifth Amendment to exclude the

evidence in this case. Indeed, it could not. The ma-

jority prefers instead to rely on “changing times” and

the Court’s role as it sees it, as the administrator in

charge of regulating the contacts of officials with citizens.

The majority states that in the absence of a better means

of regulation, it applies a court-created rule of evidence.

I readily concede that there is much recent precedent

for the majority’s present announcement of yet another

new set of police operating procedures. By invoking this

rulemaking power found not in the words but somewhere

in the “spirit” of the Fourth Amendment, the Court

has expanded that Amendment beyond recognition.

And each new step is justified as merely a logical exten-

sion of the step before.

It is difficult for me to believe the Founders intended

that the police be required to prove a defendant’s guilt

in a “little trial” before the issuance of a search warrant.

But see Aguilar v. Texas, 378 U. S. 108 (1964) ; Spinelli

y. United States, 393 U.S. 410 (1969). No such proceed-

ing was required before or after the adoption of the

Fourth Amendment, until this Court decided Aguilar and

Spinelli. Likewise, eavesdroppers were deemed to be

competent witnesses in both English and American courts

up until this Court in its Fourth Amendment “rule-

making” capacity undertook to lay down rules for elec-

tronic surveillance. Berger v. New York, 388 U.S. 41,

70 (1967) (Buack, J., dissenting) ; Katz v. United States,

389 U. S. 347, 364 (1967) (Buack, J., dissenting). The

reasonableness of a search incident to an arrest, extend-

8 COOLIDGE v. NEW HAMPSHIRE

ing to areas under the control of the defendant and areas

where evidence may be found, was an established tenet

of English common law, and American constitutional law

after adoption of the Fourth Amendment—that is, until

Chimel v. California, 395 U. S. 752 (1969). The broad,

abstract, and ambiguous concept of “privacy” is now

unjustifiably urged as a comprehensive substitute for the

Fourth Amendment’s guarantee against “unreasonable

searches and seizures.” Griswold v. Connecticut, 38]

U. S. 479 (1965).

Our Covernment is founded upon a written Constitu-

tion. The draftsmen expressed themselves in careful and

measured terms corresponding with the immense im-

portance of the powers delegated to them. The Framers

of the Constitution, and the people who adopted it, must

be understood to have used words in their natural mean-

ing, and to have intended what they said. The Consti-

tution itself contains the standards by which the seizure

of evidence challenged in the present case and the ad-

missibility of that evidence at trial is to be measured in

the absence of congressional legislation. It is my con-

clusion that both the seizure of the rifle offered by peti-

tioner’s wife and the seizure of the automobile at the

time of petitioner’s arrest were consistent with the Fourth

Amendment and that the evidence so obtained under

the circumstances shown in the record in this case could

not be excluded under the Fifth Amendment.

lI

The majority holds that the warrant authorizing the

seizure and search of petitior>+’s automobile was consti-

tutionally defective and vc With respect to search

warrants, the Fourth Amendme. v provides that “no war-

rants shall issue, but upon probable cause, supported by

oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.”

COOLIDGE v. NEW HAMPSHIRE i)

The majority concedes that the police did show probable

cause for the issuance of the warrant. The majority

does not contest that the warrant particularly described

the place to be searched, and the thing to be seized.

But compliance with state law and the requirements

of the Fourth Amendment apparently is not enough.

The majority holds that the state attorney general’s

connection with the investigation automatically rendered

the search warrant invalid. In the first place, there is

no language in the Fourth Amendment which provides

any basis for the disqualification of the state attorney

general to act as a magistrate. He is a state official of

high office elected by the people. The Fourth Amend-

ment does not indicate that his position of authority over

state law enforcement renders him ineligible to issue

warrants upon a showing of probable cause supported by

oath or affirmation. The majority’s argument proceeds

on the “little trial” theory that the magistrate is to sit

as a judge and weigh the evidence and practically de-

termine guilt or innocence before issuing a warrant.

There is nothing in the Fourth Amendment to support

such a magnified view of the magistrate’s authority. The

state attorney general was not barred by the Fourth

Amendment or any other constitutional provision from

issuing the warrant.

In the second place, the New Hampshire Supreme

Court held in effect that the state attorney general’s par-

ticipation in the investigation of the case at the time

he issued the search warrant was “harmless error” if it

was error at all. I agree. It is difficult to imagine a

clearer showing of probable cause. There was no possi-

bility of prejudice because there was no room for dis-

cretion. Indeed, it could be said that a refusal to issue

a warrant on the showing of probable cause made in this

case would have been an abuse of discretion. In light

of the showing made by the police, there is no reasonable

10 COOLIDGE v. NEW HAMPSHIRE

possibility that the state attorney general’s own knowl-

edge of the investigation contributed to the issuance of

the warrant. I see no error in the state attorney gen-

eral’s action. But even if there was error, it was harm-

less beyond reasonable doubt. See Harrington v. Cali-

fornia, 395 U. S. 250 (1969); Chapman v. Califorma,

386 U. S. 18 (1967).

Therefore, it is my conclusion that the warrant author-

izing the seizure and search of petitioner’s automobile

was constitutional under the Fourth Amendment, and

that the evidence obtained during that search cannot be

excluded under the Fifth Amendment. Moreover, I am

of the view that, even if the search warrant had not is-

sued, the search in this case nonetheless would have been

constitutional under all three of the principles considered

and rejected by the majority.

Ill

It is important to point out that the automobile itself

was evidence and was seized as such. Prior to the seizure

the police had been informed by two witnesses that on

the night of the murder they had seen an automobile

parked near the point where the little girl’s dead body

was later discovered. Their description of the parked

automobile matched petitioner’s car. At the time of the

seizure the identification of petitioner’s automobile by

the witnesses as the car they had seen on the night of the

murder was yet to be made. The police had good reason

to believe that the identification would be an important

element of the case against the petitioner. Preservation

of the automobile itself as evidence was a reasonable

motivation for its seizure. Considered in light of the

information in the hands of the New Hampshire police

at the time of the seizure, I conclude that the seizure

and search were constitutional, even had there been no

search warrant, for the following among other reasons.

COOLIDGE v. NEW HAMPSHIRE . 11

A

First, the seizure of petitioner’s automobile was valid

as incident to a lawful arrest. The majority concedes

that there was probable cause for petitioner’s arrest.

Upon arriving at petitioner’s residence to make that ar-

rest, the police saw petitioner’s automobile which they

knew fitted the description of the car observed by two

witnesses at the place where the murdered girl’s body

had been found. The police arrested the petitioner and

seized the automobile. The majority holds that because

the police had to go into petitioner’s residence in order to

place petitioner under arrest, the contemporaneous sei-

zure of the automobile outside the house was not incident

to that arrest. I cannot accept this elevation of form

over reason.

After stating that Chimel v. California, 395 U.S. 752

(1969), is inapplicable to this case, the majority goes

on to formulate and apply a per se rule reaching far be-

yond Chimel. To do so, the majority employs a classic

non sequitur. Because this Court has held that police

arresting a defendant on the street in front of his house

cannot go into that house and make a general search,

it follows, says the majority, that the police having

entered a house to make an arrest cannot step outside

the house to seize clearly visible evidence. Even though

the police, upon entering a doorway to make a valid

arrest, would be authorized under the pre-Chimel law

the majority purports to apply, to make a five-hour

search of a four-room apartment, see Harris v. United

States, 331 U. S. 145 (1947), the majority holds that the

police could not step outside the doorway to seize evi-

dence they passed on their way in. The majority reasons

that as the doorway locks the policeman out, once entered,

it must lock him in.

12 COOLIDGE v. NEW HAMPSHIRE

The test of reasonableness cannot be governed by

such arbitrary rules. Each case must be judged on its

own particular facts. Here, there was no general explo-

ration, only a direct seizure of important evidence in plain

view from both inside as well as outside the house. On

the facts of this case, it is my opinion that the seizure

of petitioner’s automobile was incident to his arrest

and was reasonable under the terms of the Fourth

Amendment.

B

Moreover, under our decision last Term in Chambers

v. Maroney, 399 U. S. 42 (1970), the police were entitled

not only to seize petitioner’s car but also to search the

car after it had been taken to the police station. The

police had probable cause to believe that the car had been

used in the commission of the murder and that it con-

tained evidence of the crime. Under Carroll v. United

States, 267 U. S. 132 (1925), and Chambers v. Maroney,

supra, such belief was sufficient justification for the sei-

zure and the search of petitioner’s automobile.

The majority reasons that the Chambers and Carroll

rationale, based on the mobility of automobiles, is inap-

plicable here because the petitioner’s car could have been

placed under guard and, thereby, rendered immobile.

But this Court explicitly rejected such reasoning in

Chambers: “For constitutional purposes, we see no dif-

ference between on the one hand seizing and holding a

car before presenting the probable cause issue to a magis-

trate and on the other hand carrying out an immediate

search without a warrant.... The probable-cause

factor still obtained at the station house and so did the

mobility of thecar ....” 399U.S., at 52. This Court

held there that the delayed search at the station house,

COOLIDGE v. NEW HAMPSHIRE 13

as well as an immediate search at the time of seizure, was

reasonable under the Fourth Amendment.

As a second argument for holding that the Chambers

decision does not apply to this case, the majority reasons

that the evidence cnuld not have been altered or the car

moved because petitioner was in custody und his wife

was accompanied by police, at least until the police towed

the car to the station. But the majority’s reasoning

depends on two assumptions: first, that the police should,

or even could, continue to keep petitioner’s wife effec-

tively under house arrest; and, second, that no one else

had any motivation to alter or remove the car. I cannot

accept the first assumption, nor do I believe that the

police acted unreasonably in refusing to accept the

second.”

2The majority attempts to rely on Preston v. United States, 376

U. S. 364 (1964), to support its holding that the police could not

search petitioner’s automobile at the station house. But this case is

not Preston, nor is it controlled by Preston. The police arrested

Preston for vagrancy. No claim was made that the police had any

authority to hold his car in connection with that charge. The fact

that the police had custody of Preston’s car was totally unrelated

to the vagrancy charge for which they arrested him; so was their

subsequent search of the car. Here the officers arrested petitioner

for murder. They seized petitioner’s car as evidence of the crime

for which he was arrested. Their subsequent search of the car was

directly related to the reason petitioner was arrested and the reason

his car had been seized and, therefore, was valid under this Court’s

decision in Cooper v. California, 386 U. S. 58 (1967).

My Brother Wuire points out that the police in the present case

not only searched the car immediately upon taking it to the station

house, but also searched it 11 months and 14 months after seizure.

We held in Cooper, where the search occurred one week after seizure,

that the Fourth Amendment is not violated by the examination or

search of a car validly held by officers for use as evidence in a pend-

ing trial. In my view the police are entitled to search a car whether

detained for a week or for a year where that car is being properly

held as relevant evidence of the crime charged.

14 COOLIDGE v. NEW HAMPSHIRE

C

I believe the seizure of petitioner’s automobile was

valid under the well established right of the police to

seize evidence in plain view at the time and place of

arrest. The majority concedes that the police were right-

fully at petitioner’s residence to make a valid arrest at

the time of the seizure. To use the majority’s words,

the “initial intrusion” which brought the police within

plain view of the automobile was legitimate. The ma-

jority also concedes that the automobile was “plainly

visible both from the street and from inside the house

where Coolidge was actually arrested,” ante, at 3, and

that the automobile itself was evidence which the police

had probable cause to seize. Ante, at 20. Indeed, the

majority appears to concede that the seizure of peti-

tioner’s automobile was valid under the doctrine uphold-

ing seizurers of evidence in plain view of the scene of

arrest, at least as it stood before today. Ante, at 21

n. 24.

However, even after conceding that petitioner’s auto-

mobile itself was evidence of the crime, that the police

had probable cause to seize it as such, and that the auto-

mobile was in plain view at the time and place of arrest,

the majority holds the seizure to be a violation of the

Fourth Amendment because the discovery of the auto-

mobile was not “inadvertent.” The majority confidently

states: ‘What the ‘plain view’ cases have in common is

that the police officer in each of them had a prior justifi-

cation for an intrusion in the course of which he came

inadvertently across a piece of evidence incriminating

the accused.” But the prior holdings of this Court not

only fail to support the majority’s statement, they flatly

contradict it. One need look no further than the cases

cited in the majority opinion to discover the invalidity

of that assertion.

COOLIDGE v. NEW HAMPSHIRE 15

In one of these cases, Ker v. California, 374 U. 8S. 23

(1963), the police observed the defendant’s participation

in an illegal marihuana transaction, then went to his

apartment to arrest him. After entering the apartment,

the police saw and seized a block of marihuana as they

placed the defendant under arrest. This Court upheld

that seizure on the ground that the police were justifiably

in the defendant’s apartment to make a valid arrest, there

was no search because the evidence was in plain view, and

the seizure of such evidence was authorized when incident

to a lawful arrest. The discovery of the marihuana there

could hardly be described as “inadvertent.” *

In Marron v. United States, 275 U.S. 192 (1927), also

cited by the majority, the Court upheld the seizure of

business records as being incident to a valid arrest for

operating an illegal retail whiskey enterprise. The rec-

ords were discovered in plain view. I cannot say that

the seizure of business records from a place of business

3 The facts in Ker undermine the majority’s attempt to distinguish

it from the instant case. The arresting officer there learned from

other policemen that Ker had been observed meeting with a known

marihuana supplier. The arresting officer had received information

at various times over an eight-month period that Ker was selling

marihuana from his apartment and that he was securing this mari-

huana from the known supplier. The arresting officer had a “mug”

photograph of Ker at the time of the arrest and testified that for at

least two months he had received information as to Ker’s marihuana

activities from a named informant who had previously given infor-

mation leading to three other arrests and whose information was be-

lieved to be reliable. The arresting officer did not know whether

Ker would be present at his apartment on the night of arrest. The

officer had neither an arrest nor a search warrant. He entered Ker’s

apartment, placed Ker under arrest, and seized the block of mari-

huana in plain view in the adjoining room. This Court held that

the seizure was reasonable and therefore valid under the Fourth

Amendment.

16 COOLIDGE v. NEW HAMPSHIRE

during the course of an arrest for operating an illegal

business was “inadvertent.” *

The majority confuses the historically justified right

of the police to seize visible evidence of the crime in open

view at the scene of arrest with the “plain view” excep-

tion to the requirement of particular description in search

warrants. The majority apparently reasons that unless

the seizure made pursuant to authority conferred by a

warrant is limited to the particularly described object

of seizure, the warrant will become a general writ of as-

sistance. Evidently, as a check on the requirement of

particular description in search warrants, the majority

announces a new rule that items not named in a warrant

cannot be seized unless their discovery was unanticipated

or “inadvertent.” * The majority’s concern is with the

+ The majority correctly notes, ante, at 20, that this Court in War-

den v. Hayden, 387 U. 8. 294 (1967), flatly rejected the distinction

for purposes of the Fourth Amendment between “mere evidence”

and contraband, a distinction which the majority appears to me to

reinstate at another point in its opinion, ante, at 26 and 28.

5 The cases cited by the majority simply do not support the ma-

jority’s new rule. For instance, when the police in Steele v. United

States, 267 U.S. 498 (1925), entered a warehouse under the author-

ity of a search warrant issued on a showing of probable cause that

the Prohibition Act was being violated and naming “cases of whiskey”

as the objects of search, it can scarcely be said that their discovery

and seizure of barrels of whiskey and bottles and bottling equipment

in plain view was “inadvertent.”

The majority states that the seizure in Warden v. Hayden, supra,

was justified because the police “inadvertently” came across the

evidence while in hot pursuit of a fleeing suspect. In that case

the police answered the call of two witnesses who stated that an

armed robber had just held up a business. The witnesses described

the robber and the clothes he was wearing. They had followed

the robber to a particular house. The police searched the house

and seized (1) a shotgun and a pistol found in a toilet on the

second floor; (2) ammunition for the pistol and a cap like the

one worn by the robber, both found beneath the mattress in the

COOLIDGE v. NEW HAMPSHIRE 17

scope of the intrusion authorized by a warrant. But the

right to seize items properly subject to seizure because

in open view at the time of arrest is quite independent

of any power to search for such items pursuant to a

warrant. The entry in the present case did not depend

for its authority on a search warrant but was concededly

authorized by probable cause to effect a valid arrest. The

intrusion did not exceed that authority. The intrusion

was limited in scope to the circumstances which justified

the entry in the first place—the arrest of petitioner.

There was no general search; indeed, there was no search

at all. The automobile itself was evidence properly sub-

ject to seizure and was in open view at the time and

place of arrest.°

Only rarely can it be said that evidence seized incident

to an arrest is truly unexpected or inadvertent. Indeed,

if the police officer had no expectation of discovering

weapons, contraband, or other evidence, he would make

no search. It appears to me that the rule adopted by the

Court today, for all practical purposes, abolishes seizure

incident to arrest. The majority rejects the test of

reasonableness provided in the Fourth Amendment and

defendant’s bedroom; and (3) a jacket and trousers of the type the

fleeing man was said to have worn, found in a washing machine in

the basement. It is quite difficult for me to accept the majority’s

characterization of these discoveries as “inadvertent.”

See also United States v. Lee, 274 U. 8. 559 (1927), another case

cited by the majority, where Coast Guard officers, with probable

cause to believe that a boat was being used to violate the Prohibition

Act, shined a search light across the deck and discovered illicit

whiskey. The admission of testimony regarding that discovery was

upheld by this Court against a Fourth Amendment challenge,

although the discovery could hardly be termed “inadvertent.”

* Moreover, what a person knowingly exposes to the public is not

a subject of Fourth Amendment protection. See Lewis v. United

States, 385 U. S. 206, 210 (1966); United States v. Lee, 274 U.S.

559, 563 (1927); Hester v. United States, 265 U.S. 57 (1924).

18 COOLIDGE ». NEW HAMPSHIRE

substitutes a per se rule—if the police could have ob-

tained a warrant and did not, the seizure, no matter how

reasonable, is void. But the Fourth Amendment does not

require that every search be made pursuant to a war-

rant. It prohibits only “unreasonable searches and sei-

zures.” The relevant test is not the reasonableness of

the opportunity to procure a warrant, but the reason-

ableness of the seizure under all the circumstances. The

test of reasonableness cannot be fixed by per se rules;

each case must be decided on its own facts.

For all the reasons stated above, I believe the sei-

zure and search of petitioner's car was reasonable

and, therefore, authorized by the Fourth Amendment.

The evidence so obtained violated neither the Fifth

Amendment which does contain an exclusionary rule, nor

the Fourth Amendment which does not. The jury of

petitioner's peers, as conscious as we of the awesome

gre vity of their decision, heard that evidence and found

the petitioner guilty of murder. I cannot in good con-

science upset that verdict.

Mr. Justice BLACKMUN joins Mr. Justice BLack in

Parts II and III of this opinion and in that portion of

Part I thereof which is to the effect that the Fourth

Amendment supports no exclusionary rule.

SUPREME COURT OF THE UNITED STATES

No. 323.—Ocrossr Term, 1970

Edward H. Coolidge, Jr.) o, writ of Certiorari to the

P = Supreme Court of New

New Hampshire.

[June 21, 1971]

Mr. Justice Wurrts, with whom Txe Curer Justice

joins, concurring and dissenting.

I would affirm the judgment. In my view, Coolidge’s

Pontiac was lawfully seized as evidence of the crime in

plain sight and thereafter was lawfully searched under

Cooper v. California, 386 U. S. 58 (1967). I am there-

fore in substantial disagreement with Parts II-C and

II-D of the Court’s opinion. Neither do I agree with

Part II-B, and I can concur only in the result as to

Part IIT.

I

The Fourth Amendment commands that the public

shall be secure in their “persons, houses, papers, and

effects, against unreasonable searches and seizures .. . .”

As to persons, the overwhelming weight of authority is

that a police officer may make an arrest without a war-

rant when he has probable cause to believe the suspect

has committed a felony." The general rule also is that

‘This was the common law rule. 1 J. Stephen, A History of

Criminal Law of England 193 (1883); 2 M. Hale, Historia Placi-

torum Coronae 72-104 (new ed. 1800). It is also the consti-

tutional rule. In Carroll v. United States, 267 U.S. 132 (1925), the

Court said that “(t]he usual rule is that a police officer may arrest

without warrant one believed by the officer upon reasonable cause

to have been guilty of a felony ....” Jd., at 156. There in Sep-

tember 1921, officers had obtained probable cause to believe the two

defendants were unlawfully transporting bootleg liquor, but they had

neither effected an immediate arrest nor sought a warrant. Several

2 COOLIDGE v. NEW HAMPSHIRE

upon the lawful arrest of a person, he and the area under

his immediate control may be searched and contraband or

evidence seized without a warrant. The right “to search

months later they observed two men driving on a public highway,

stopped and searched the car and arrested the men, and this Court

sustained both the search and the arrest. So also in Trupiano y.

United States, 334 U. S. 699 (1948), officers were amply forewarned

of criminal activities and had time to seek a warrant but did not do

so. Instead, some time later they entered on property were Trupiano

had a still and found exactly what they expected to find—one of

the defendants engaged in the distillation of bootleg liquor. His

arrest without a warrant was sustained, the Court saying that “[t]he

absence of a warrant of arrest, even though there was sufficient

time to obtain one, [did] . . . not destroy the validity of an arrest”

in the circumstances of the case. Jd., at 705.

The judgment of Congress also is that federal law enforcement

officers may reasonably make warrantless arrests upon probable cause.

It has authorized such arrests by United States Marshals, agents of

the Federal Bureau of Investigation and of the Secret Service and

narcotics law enforcement officers. See Act of June 15, 1935, c. 259,

§ 2, 49 Stat. 378, as amended, 18 U. S. C. § 3053; Act of June 18,

1934, c. 595, 48 Stat. 1008, as amended, 18 U. S. C. § 3052; Act of

Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S. C. § 3056; Act of

July 18, 1956, Tit. I, § 104 (a), 70 Stat. 570, as amended, 26 U.S. C.

§ 7607 (2). And, in 1951, Congress expressly deleted from the au-

thority to make warrantless arrests a pre-existing statutory restric-

tion barring them in the absence of a likelihood that the person would

escape before a warrant could be obtained. See Act of Jan. 10,

1951, c. 1221, § 1, 64 Stat. 1239; S. Rep. No. 2464, 8lst Cong,, ©

Sess., 2 (1950); H. R. Rep. No. 3228, 81st Cong., 2d Sess., 2 (1950);

Chimel v. California, 395 U. S. 752, 776-780 (1969) (dissenting

opinion).

The majority now suggests that warrantless, probable cause arrests

may not be made in the home absent exigent circumstances. Jones

v. United States, 357 U. S. 493 (1958), invalidated a forceable

nighttime entry to effect a search without a warrant and suggested

also that the particular circumstances of the entry would have posed

a serious Fourth Amendment issue if the purpose of the entry had

been to make an arrest. But, as a constitutional matter, the

Court has never held or intimated that all probable cause ar-

rests without a warrant in the home must be justified by exigent

COOLIDGE v. NEW HAMPSHIRE 3

the person of the accused when legally arrested to dis-

cover and seize the fruits or evidences of crime...

has been uniformly maintained in many cases.” Weeks

y. United States, 232 U. S. 383, 392 (1914). Accord,

Chimel v. California, supra.

With respect to houses and other private places, the

general rule is otherwise: a search is invalid unless made

on probable cause and under the authority of a warrant

specifying the area to be searched and the objects to be

seized. There are various exceptions to the rule, how-

ever, permitting warrantless entries and limited searches,

the most recurring being the arrest without a warrant.

The case before us concerns the protection offered by

the Fourth Amendment to “effects” other than personal

papers or documents. It is clear that effects may not

be seized without probable cause but the law as to when

a warrant is required to validate their seizure is confused

and confusing. Part of the difficulty derives from the

fact that effects enjoy derivative protection when located

in a house or other area within reach of the Fourth

Amendment. Under existing doctrine, effects seized in

warrantless, illegal searches of houses are fruits of a con-

stitutional violation and may not be received in evidence.

But is a warrant required to seize contraband or crim-

circumstances other than the necessity for arresting a felon, or

that, if the elapsed time between the accrual of probable cause

and the making of the arrest proves sufficient to have obtained

a warrant, the arrest is invalid. On the contrary, many cases

in this Court have proceeded on the assumption that ordinarily

warrantless arrests on probable cause may be effected even in the

home. See Sabbath v. United States, 391 U.S. 585 (1968); Miller

vy. United States, 357 U. S. 301, 305-308 (1958); United States v.

Rabinowitz, 339 U. S. 56, 60 (1950) (dictum); Trupiano v. United

States, supra; Johnson v. United States, 333 U. S. 10, 15 (1948)

(dictum). Of course, this is not to say that the time and method

of entry could never pose serious constitutional questions under the

Fourth Amendment.

. COOLIDGE v. NEW HAMPSHIRE

inal evidence when it is found by officers at a place where

they are legally entitled to be at the time? Before a

person is deprived of his possession or right to posses-

sion of his effects, must a magistrate confirm that what

the officer has legally seen (and would be permitted to

testify about, if relevant and material) is actually con-

traband or criminal evidence?

The issue arises in different contexts. First, the effects

may be found on public property. Suppose police are

informed that important evidence has been secreted in

a public park. A searth is made and the evidence

found. Although the evidence was hidden rather than

abandoned, I had not thought a search warrant was

required for officers to make a seizure, see United States

v. Lee, 274 U. S. 559 (1927) (boat seized on public

waters) ;* Hester v. United States, 265 U. S. 57 (1924)

(liquor seized in open field); any more than a warrant

is needed to seize an automobile which is itself evidence

of crime and which is found on a public street or in a

parking lot. See Cooper v. California, supra.

Second, the items may be found on the premises of

a third party who gives consent for an official search

but who has no authority to consent to seizure of another

person’s effects. Frazier v. Cupp, 394 U.S. 731 (1969),

would seem to settle the validity of the seizure without a

warrant as long as the search itself involves no Fourth

Amendment violation.

Third, the police may arrest a suspect in his home

and in the course of a properly limited search discover

evidence of crime. The line of cases from Weeks v.

United States, supra, to Harris v. United States, 331

U. S. 145 (1947), had recognized the rule that upon

arrest searches of the person and of adjacent areas were

2 Lee permitted the revenue officers who seized the boat to take

and chemically analyze bootleg liquor found aboard it and then

to testify as to the results of their analysis.

—

COOLIDGE v. NEW HAMPSHIRE 5

reasonable, and Harris had approved an incidental

search of bread scope. In the next Term, however,

Trupiano v. United States, supra, departed from the

Harris approach. In Trupiano, officers, with probable

cause to arrest, entered property and arrested the de-

fendant while he was operating an illegal still. The

still was seized. Time and circumstance would have

permitted the officers to secure both arrest and search

warrants, but they had obtained neither. The Court

did not disturb seizure of the person without warrant

but invalidated seizure of the still since the officers

could have had a warrant but did not. United States

y. Rabinowitz, supra, however, returned to the rule that

the validity of searches incident to arrest does not de-

pend on the practicability of securing a warrant. And,

while Chimel v. California, supra, narrowed the per-

missible scope of incident searches to the person and

the immediate area within reach of the defendant, it

did not purport to re-establish the Trupiano rule that

searches accompanying arrests are invalid if there is

opportunity to get a warrant.

Finally, officers may be on a suspect’s premises exe-

cuting a search warrant and in the course of the author-

ized search discover evidence of crime not covered by

the warrant. Marron v. United States, 275 U. S. 192

(1927), flatly held that legal presence under a warrant

did not itself justify the seizure of such evidence. How-

ever, seizure of the same evidence was permitted be-

cause it was found in plain sight in the course of making

an arrest and an accompanying search. It is at least

odd to me to permit plain sight seizures arising in con-

nection with warrantless arrests, as the long line of

cases ending with Chimel have done, or arising in the

course of a hot pursuit search for a felon, Warden v.

Hayden, 387 U. 8. 294 (1967); Hester v. United States,

supra; and yet forbid the warrantless seizure of evidence

6 COOLIDGE v. NEW HAMPSHIRE

in plain sight when officers enter a house under a search

warrant that is perfectly valid but does not cover the

items actually seized. I have my doubts that this aspect

of Marron can survive later cases in this Court, particu-

larly Zap v. United States, 328 U.S. 624 (1946), vacated

on other grounds, 330 U. S. 800 (1947), where federal

investigators seized a cancelled check evidencing crime

that had been observed during the course of an other-

wise lawful search. See also Stanley v. Georgia, 394

U. S. 557, 569 (1969) (Srewart, J., concurring). Cf.

Chimel v. California, supra; Warden v. Hayden, supra;

Frazier v. Cupp, supra. Apparently the majority agrees,

for it lumps plain sight seizures in such circumstances

along with other situations where seizures are made after

a legal entry.

In all of these situation., it is apparent that seizure

of evidence without warrant is not itself an invasion

either of personal privacy or of property rights beyond

that already authorized by law. Only the possessory

interest of a defendant in his effects is implicated. And

in these various circumstances, at least where the dis-

covery of evidence is “inadvertent,” the Court would per-

mit the seizure because, it is said, “the minor peril to

Fourth Amendment protections” is overridden by the

“major gain in effective law enforcement” inherent in

avoiding the “needless inconvenience” of procuring a

warrant. Ante, p. 23. I take this to mean that both

the possessory interest of the defendant and the im-

portance of having a magistrate confirm that what the

officer saw with his own eyes is in fact contraband or

evidence of crime are not substantial constitutional con-

siderations. Officers in these circumstances need neither

guard nor ignore the evidence while a warrant is sought.

Immediate seizure is justified and reasonable under the

Fourth Amendment.

The Court would interpose in some or all of these

situations, however, a condition that the discovery of

COOLIDGE v. NEW HAMPSHIRE 7

the disputed evidence be “inadvertent.” If it is “antici-

pated,” that is if “the police know in advance the location

of the evidence and intend to seize it,” the seizure is

invalid. Jd., at 26.

I have great difficulty with this approach. Let us

suppose officers secure a warrant to search a house for

a rifle. While staying well within the range of a rifle

search, they discover two photographs of the murder vic-

tim, both in plain sight in the bedroom. Assume also

that the discovery of the one photograph was inadvertent

but finding the other was anticipated. The Court would

permit the seizure of only one of the photographs. But

in terms of the “minor” peril to Fourth Amendment

values there is surely no difference between these two

photographs: the interference with possession is the same

in each case and the officers’ appraisal of the photograph

they expected to see is no less reliable than their judg-

ment about the other. And in both situations the actual

inconvenience and danger to evidence remains identical

if the officers must depart and secure a warrant. The

Court, however, states that the State will suffer no con-

stitutionally cognizable inconvenience from invalidating

anticipated seizures since it had probable cause to search

for the items seized and could have included them in a

warrant.

|\_—— This seems a punitive and extravagant application of

the exclusionary rule. If the police have probable cause

to search for a photograph as well as a rifle and they

proceed to seek a warrant, they could have no possible

motive for deliberately including the rifle but omitting

the photograph. Quite the contrary is true. Only over-

sight or careless mistake would explain the omission in

the warrant application if the police were convinced they

had probable cause to search for the photograph. Of

course, they may misjudge the facts and not realize they

have probable cause for the picture, or the magistrate

may find against them and not issue a warrant for it.

8 COOLIDGE v. NEW HAMPSHIRE

In either event the officers may validly seize the photo-

graph for which they had no probable cause to search

but the other photograph is excluded from evidence when

the Court subsequently determines that the officers, after

all, had probable cause to search for it.

More important, the inadvertence rule is unnecessary

to further any Fourth Amendment ends and will accom-

plish nothing. Police with a warrant for a rifle may

search only places where rifles might be and must termi-

nate the search once the rifle is found; the inadvertence

rule will in no way reduce the number of places into

which they may lawfully look. So too the areas of per-

missible search incident to arrest are strictly circum-

scribed by Chimel. Excluding evidence seen from within

those areas can hardly be effective to operate to prevent

wider, unauthorized searches. If the police stray out-

side the scope of an authorized Chimel search they are

already in violation of the Fourth Amendment, and evi-

dence so seized will be excluded; adding a second reason

for excluding evidence hardly seems worth the candle.

Perhaps the Court is concerned that officers, having the

right to intrude upon private property to make arrests,

will use that right as a pretext to obtain entry to search

for objects in plain sight, ef. Chimel v. California, supra,

at 767, but, if so, such a concern is unfounded. The rea-_

son is that under Chimel the police can enter only into

those portions of the property into which entry is neces-

sary to effect the arrest. Given the restrictions of Chimel,

the police face a substantial risk that in effecting an

arrest and a search incident thereto they will never enter

into those portions of the property from which they can

plainly see the objects for which they are searching and

that, if they do not, those objects will be destroyed be-

fore they can return and conduct a searc’ of the entire

premises pursuant to a warrant. If the police in fact

possess probable cause to believe that weapons, contra-

COOLIDGE v. NEW HAMPSHIRE 9

band or evidence of crime is in plain view on the premises,

it will be far safer to obtain a search warrant than to take

a chance that in making an arrest they will come into

plain view of the object they are seeking. It is only

when they ‘lack probable cause for a search—when, that

is, discovery of objects in plain view from a lawful vant-

age point is inadvertent—that entry to make an arrest

might, as a practical matter, assist the police in discover-

ing an object for which chey could not have obtained a

warrant. But the majority in that circumstance would

uphold their authority to seize what they see. I thus

doubt that the Court’s new rule will have any measurable

effect on police conduct. It will merely attach undue

consequences to what will most often be an unintended

mistake or a misapprehension of some of this Court’s

probable cause decisions, a failing which, I am afraid,

we all have.

By invalidating otherwise valid, plain sight seizures

where officers have probable cause and presumably, al-

though the Court does not say so, opportunity to secure

a warrant, the Court seems to turn in the direction of

the Trupiano rule, rejected in Rabinowitz and not revived

in Chimel. But it seems unsure of its own rule.

It is careful to note that Coolidge’s car is not contra-

band, stolen or in itself dangerous. Apparently, contra-

band, stolen or dangerous materials may be seized when

discovered in the course of an otherwise authorized search

even if the discovery is fully anticipated and a warrant

could have been obtained. The distinction the Court

draws between contraband and mere evidence of crime

is reminiscent of the confusing and unworkable approach

that I thought Warden v. Hayden, supra, had firmly put

aside.

Neither does the Court in so many words limit Chimel ;

on the contrary, it indicates that warrantless Chimel-

type searches will not be disturbed, even if the police

10 COOLIDGE v. NEW HAMPSHIRE

“anticipate that they will find specific evidence during

the course of such a search.” Ante, p. 37. The Court

also concedes that, when an arresting officer “comes

within plain view of a piece of evidence, not concealed,

although outside of the area under the immediate contro]

of the arrestee, the officer may seize it, so long as the plain

view was obtained in the course of an appropriately lim-

ited search of the arrestee.” J/d., at 21 n. 24. Yet

today’s decision is a limitation on Chimel, for in the

latter example, the Court would permit seizure only if

the plain view was inadvertently obtained. If the

police, that is, fully anticipate that, when they arrest a

suspect as he is entering the front door of his home, they

will find a credit card in his pocket and a picture in plain

sight on the wall opposite the door, both of which will

implicate him in a crime, they may under today’s de-

cision seize the credit card but not the picture. This is

a distinction which I find to be without basis and which

the Court makes no attempt to explain. I can therefore

conclude only that Chimel and

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