“Then and there the child Independence was born"


More recently Justice Felix Frankfurter has opposed searches conducted as an incident to a warrant of arrest. In a notable dissent ( Harris v. U.S., 1946) he pointed out that the decision turned “on whether one gives the [Fourth] Amendment a place second to none in the Bill of Rights, or considers it on the whole a kind of nuisance, a serious impediment in the war against crime. … How can there be freedom of thought or freedom of speech or freedom of religion,” he asked, “if the police can, without warrant, search your house and mine from garret to cellar merely because they are executing a warrant of arrest?” He went on to warn: “Yesterday the justifying document was an illicit ration book, tomorrow it may be some suspect piece of literature.” Again, in a more recent case ( United States v. Rabinowitz , 1950), Justice Frankfurter dissented from a decision authorizing federal officers to seize forged postage stamps without search warrant but as an incident to arrest. He said pointedly:

It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or whether one thinks of it as merely a requirement for a piece of paper.

Once it was a powerful monarch concerned about securing every shilling of customs revenue. Today it is a great republic legitimately concerned about the nation’s security. Once it was the knock on the door. Today it is wire tapping or other electronic devices. The circumstances and techniques may differ. As the tragic James Otis would have realized, the issue remains the same.

*By “executive courts” he meant the regular courts of law as distinguished from the Massachusetts legislature, known as the General Court. Otis’ argument presaged a special and unique role for the United States Supreme Court, the exercise of the power to declare laws unconstitutional.


**In 1957 Mrs. Dollree Mapp of Cleveland, Ohio, was arrested for possessing obscene literature seized in her home by police, apparently without a warrant. Her subsequent conviction was upheld by two state appeal courts, but on June 19, 1961, the Supreme Court reversed the conviction, declaring that evidence obtained by search and seizure in violation of the Fourth Amendment is inadmissible in a state court, as it is in a Federal court. On the other hand, in the case of Burton N. Pugach of New York City, accused of conspiring to maim the girl who had rejected him, the Supreme Court on February 27, 1961, had upheld the right of state officials and state courts to use evidence obtained by wire tapping, a modern method of gathering evidence which many feel also violates a citizen’s privacy. So the historic conflict between private right and the public good goes on.