, Andresen v. Maryland :: 427 U.S. 463 (1976) :: US LAW US Supreme Court Center

Andresen v. Maryland :: 427 U.S. 463 (1976) :: US LAW US Supreme Court Center

    U.S. Supreme Court

    Andresen v. Maryland, 427 U.S. 463 (1976)

    Andresen v. Maryland

    No. 74-1646

    Argued February 25, 1976

    Decided June 29, 1976

    427 U.S. 463

    Syllabus

    After an research by way of a State s Lawyers fraud unit of real property settlement sports in sure Maryland counties indicated that petitioner, at the same time as acting as a settlement legal professional, had defrauded the customer of positive realty (Lot 13T), the investigators received warrants to search petitioner s places of work. The warrants listed special objects pertaining to Lot 13T to be seized, "together with other fruits, instrumentalities and proof of crime at this [time] unknown." In the ensuing seek, a number of incriminating files, together with some containing statements made by means of petitioner, were seized. Petitioner turned into then charged, inter alia, with the crime of false pretenses based on a misrepresentation made to the customer of Lot 13T that name to the belongings become clean. Petitioner s movement to suppress the seized files was granted as to some documents, but, with admire to others, the trial court ruled that their admission into proof might not violate the Fourth and Fifth Amendments. At trial, which ended in petitioner s conviction, some of the seized items (consisting of documents relating plenty aside from Lot 13T however placed in the same subdivision and issue to the identical liens as Lot 13T) were admitted in evidence, after being authenticated by means of prosecution witnesses. The Maryland Court of Special Appeals affirmed the conviction and rejected petitioner s constitutional claims.

    Held:

    1. The search of petitioner s workplaces for enterprise records, their seizure, and next advent into proof did no longer offend the Fifth Amendment s proscription that "[n]o individual . . . shall be forced in any crook case to be a witness towards himself." Although the information seized contained statements that petitioner voluntarily had committed to writing, he turned into in no way required to mention something. The search for and seizure of these information have been carried out by using regulation enforcement personnel, and when the facts have been brought at trial, they have been authenticated by using prosecution witnesses, not by way of petitioner. Therefore, any compulsion of petitioner to speak, aside from the inherent mental

    Page 427 U. S. 464

    pressure to respond at trial to unfavourable proof, became now not gift. Pp. 427 U. S. 470-477.

    2. The searches and seizures had been not "unreasonable" in violation of the Fourth Amendment. Pp. 427 U. S. 478-484.

    (a) The warrants had been now not rendered fatally "standard" by means of the "together with" phrase, which appeared in each warrant at the cease of a sentence listing the desired gadgets to be seized, all pertaining to Lot 13T. This phrase need to be read as authorizing handiest the look for and seizure of proof regarding the crime of fake pretenses with respect to Lot 13T. Pp. 427 U. S. 479-482.

    (b) The seizure of the files touching on a lot aside from Lot 13T within the identical subdivision and challenge to the same liens as Lot 13T did no longer violate the precept that, whilst police seize

    " mere proof, in all likelihood purpose should be tested in terms of cause to trust that the evidence sought will resource in a particular apprehension or conviction,"

    Warden v. Hayden, 387 U. S. 294, 387 U. S. 307. The investigators moderately should have believed that the proof particularly dealing with fraudulent behavior respecting the other lot may be used to expose petitioner s purpose to defraud with respect to Lot 13T, and although such evidence became used to stable additional prices in opposition to petitioner, its suppression become no longer required. Pp. 427 U. S. 482-484.

    24 Md.App. 128, 331 A.2nd seventy eight, affirmed.

    BLACKMUN, J., brought the opinion of the Court, wherein BURGER, C.J., and STEWART, WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., put up, p. 427 U. S. 484, and MARSHALL, J., put up, p. 427 U. S. 493, filed dissenting critiques.

    Page 427 U. S. 465

    U.S. Supreme Court

    Andresen v. Maryland, 427 U.S. 463 (1976)

    Andresen v. Maryland

    No. 74-1646

    Argued February 25, 1976

    Decided June 29, 1976

    427 U.S. 463

    CERTIORARI TO THE COURT OF SPECIAL APPEAL OF MARYLAND

    Syllabus

    After an investigation by a State s Lawyers fraud unit of real property agreement sports in positive Maryland counties indicated that petitioner, while acting as a agreement attorney, had defrauded the client of sure realty (Lot 13T), the investigators received warrants to search petitioner s offices. The warrants listed unique items pertaining to Lot 13T to be seized, "collectively with other culmination, instrumentalities and proof of crime at this [time] unknown." In the following search, a number of incriminating files, including some containing statements made by way of petitioner, had been seized. Petitioner became then charged, inter alia, with the crime of fake pretenses primarily based on a misrepresentation made to the customer of Lot 13T that identify to the assets was clean. Petitioner s movement to suppress the seized files became granted as to some files, however, with recognize to others, the trial court docket ruled that their admission into evidence might not violate the Fourth and Fifth Amendments. At trial, which resulted in petitioner s conviction, some of the seized objects (which include documents referring to lots other than Lot 13T but located inside the same subdivision and situation to the identical liens as Lot 13T) were admitted in evidence, after being authenticated by means of prosecution witnesses. The Maryland Court of Special Appeals affirmed the conviction and rejected petitioner s constitutional claims.

    Held:

    1. The search of petitioner s offices for business facts, their seizure, and next creation into proof did no longer offend the Fifth Amendment s proscription that "[n]o individual . . . shall be pressured in any criminal case to be a witness in opposition to himself." Although the records seized contained statements that petitioner voluntarily had dedicated to writing, he changed into in no way required to mention some thing. The search for and seizure of those records have been performed via law enforcement personnel, and whilst the facts have been brought at trial, they had been authenticated via prosecution witnesses, not by means of petitioner. Therefore, any compulsion of petitioner to talk, apart from the inherent psychological

    Page 427 U. S. 464

    pressure to respond at trial to damaging evidence, changed into now not present. Pp. 427 U. S. 470-477.

    2. The searches and seizures were not "unreasonable" in violation of the Fourth Amendment. Pp. 427 U. S. 478-484.

    (a) The warrants were not rendered fatally "trendy" by using the "together with" phrase, which appeared in every warrant on the quit of a sentence listing the required gadgets to be seized, all touching on Lot 13T. This word must be examine as authorizing only the look for and seizure of evidence relating to the crime of fake pretenses with appreciate to Lot 13T. Pp. 427 U. S. 479-482.

    (b) The seizure of the documents relating plenty apart from Lot 13T within the equal subdivision and concern to the equal liens as Lot 13T did no longer violate the precept that, whilst police seize

    " mere proof, probably cause ought to be examined in terms of motive to consider that the proof sought will useful resource in a particular apprehension or conviction,"

    Warden v. Hayden, 387 U. S. 294, 387 U. S. 307. The investigators moderately could have believed that the evidence particularly managing fraudulent conduct respecting the opposite lot might be used to reveal petitioner s reason to defraud with appreciate to Lot 13T, and despite the fact that such evidence turned into used to secure additional expenses in opposition to petitioner, its suppression turned into no longer required. Pp. 427 U. S. 482-484.

    24 Md.App. 128, 331 A.second 78, affirmed.

    BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., post, p. 427 U. S. 484, and MARSHALL, J., post, p. 427 U. S. 493, filed dissenting critiques.

    Page 427 U. S. 465

    MR. JUSTICE BLACKMUN added the opinion of the Court.

    This case presents the issue whether or not the advent into proof of someone s enterprise information, seized for the duration of a seek of his places of work, violates the Fifth Amendment s command that "[n]o character . . . shall be pressured in any crook case to be a witness against himself." We also should decide whether the unique searches and seizures right here have been "unreasonable," and as a consequence violated the prohibition of the Fourth Amendment.

    I

    In early 1972, a Bi-County Fraud Unit, appearing under the joint auspices of the State s Lawyers Offices of Montgomery and Prince George s Counties, Md. started out an research of actual estate agreement sports within the Washington, D.C., area. At the time, petitioner Andresen become an attorney who, as a sole practitioner, specialized in real estate settlements in Sir Bernard Law County. During the Fraud Unit s research, his activities got here underneath scrutiny, specially in reference to a transaction related to Lot 13T inside the Potomac Woods subdivision of 1st viscount montgomery of alamein County. The research, which protected interviews with the customer, the mortgage holder, and other lienholders of Lot 13T, in addition to an exam of county land records, disclosed that petitioner, appearing as settlement attorney, had defrauded Standard-Young Associates, the client of Lot 13T. Petitioner had represented that the assets turned into freed from liens and that, consequently, no name coverage became necessary, whilst in fact, he knew that there were tremendous liens on the assets. In addition, investigators

    Page 427 U. S. 466

    learned that the lienholders, by means of threatening to foreclose their liens, had compelled a halt to the patron s creation at the property. When Standard-Young had faced petitioner with this statistics, he spoke back by issuing, as an agent of a identify coverage organization, a title policy making certain clear name to the property. By this movement, petitioner additionally defrauded that insurance corporation by using requiring it to pay the top notch liens.

    The investigators, concluding that there was in all likelihood purpose to accept as true with that petitioner had dedicated the kingdom crime of fake pretenses, see Md.Ann.Code, Art. 27, § a hundred and forty (1976), against Standard-Young, implemented for warrants to look petitioner s law office and the separate office of Mount Vernon Development Corporation, of which petitioner was incorporator, sole shareholder, resident agent, and director. The software sought permission to look for exact files relating the sale and conveyance of Lot 13T. A choose of the Sixth Judicial Circuit of Sir Bernard Law County concluded that there was probably reason, and issued the warrants.

    The searches of the 2 places of work have been performed simultaneously at some point of daylight on October 31, 1972. [Footnote 1] Petitioner changed into gift at some stage in the hunt of his regulation workplace, and turned into free to transport about. Counsel for him turned into gift all through the latter 1/2 of the hunt. Between 2% and three% of the files within the workplace had been seized. A single investigator, within the presence of a police officer, performed

    Page 427 U. S. 467

    the quest of Mount Vernon Development Corporation. This search, taking about 4 hours, resulted within the seizure of much less than five% of the employer s documents.

    Petitioner in the end changed into charged, in part with the aid of facts and partially with the aid of indictment, with the crime of fake pretenses, based on his misrepresentation to Standard-Young regarding Lot 13T, and with fraudulent misappropriation by using a fiduciary, based totally on similar fake claims made to three domestic customers. Before trial started out, petitioner moved to suppress the seized files. The trial court docket held a complete suppression hearing. At the hearing, the State again to petitioner forty five of the fifty two items taken from the places of work of the organisation. The trial courtroom suppressed six different organisation gadgets on the ground that there was no connection among them and the crimes charged. The net end result turned into that the handiest object seized from the employer s workplaces that became no longer lower back with the aid of the State or suppressed turned into a single file classified "Potomac Woods General." In addition, the State lower back to petitioner seven of the 28 objects seized from his law workplace, and the trial courtroom suppressed 4 different regulation workplace gadgets based totally on its willpower that there was no connection among them and the crime charged.

    With admire to all of the gadgets no longer suppressed or returned, the trial court ruled that admitting them into proof could no longer violate the Fifth and Fourth Amendments. It reasoned that the searches and seizures did no longer pressure petitioner to be a witness against himself, because he had now not been required to supply the seized documents, nor could he be forced to authenticate them. Moreover, the hunt warrants had been primarily based on in all likelihood purpose, and the documents now not again or suppressed had been either immediately related to Lot 13T, and consequently in the specific language of the warrants, or well seized and in any other case admissible to reveal a pattern of

    Page 427 U. S. 468

    criminal behavior applicable to the charge concerning Lot 13T.

    At trial, the State proved its case mostly through public land statistics and through facts supplied by the complaining clients, lienholders, and the title insurance employer. It did introduce into proof, but, a number of the seized items. Three files from the "Potomac Woods General" report, seized for the duration of the hunt of petitioner s corporation, were admitted. These had been notes inside the handwriting of an worker who used them to prepare abstracts in the path of his obligations as a name searcher and regulation clerk. The notes involved deeds of agree with affecting the Potomac Woods subdivision and associated with the transaction regarding Lot 13T. [Footnote 2] Five items seized from petitioner s law office have been additionally admitted. One contained data regarding the transactions with one of the defrauded domestic customers. The 2nd become a report partially dedicated to the Lot 13T transaction; some of the documents have been agreement statements, the deed conveying the assets to Standard-Young Associates, and the original and a copy of a observe to the consumer approximately releases of liens. The 0.33 item changed into a document dedicated exclusively to Lot 13T. The fourth object consisted of a replica of a deed of accept as true with, dated March 27, 1972, from the vendor of sure plenty inside the Potomac Woods subdivision to a lienholder. [Footnote 3] The fifth object contained drafts of

    Page 427 U. S. 469

    documents and memoranda written in petitioner s handwriting.

    After a tribulation by means of jury, petitioner become observed responsible upon 5 counts of false pretenses and three counts of fraudulent misappropriation by a fiduciary. He turned into sentenced to eight concurrent two-year prison phrases.

    On enchantment to the Court of Special Appeals of Maryland, four of the five false pretenses counts have been reversed due to the fact the indictment had failed to allege reason to defraud, a important detail of the country offense. Only the depend relating Standard-Young s purchase of Lot 13T remained. With appreciate to this be counted of false pretenses and the 3 counts of misappropriation through a fiduciary, the Court of Special Appeals rejected petitioner s Fourth and Fifth Amendment Claims. [Footnote four] Specifically, it held that the warrants have been supported by way of in all likelihood reason, that they did now not authorize a standard seek in violation of the Fourth Amendment, and that the objects admitted into evidence towards petitioner at trial had been in the scope of the warrants or were in any other case properly seized. It agreed with the trial court that the quest had now not violated petitioner s Fifth Amendment rights due to the fact petitioner had now not been compelled to do whatever. 24 Md.App. 128, 331 A.2nd 78 (1975).

    Page 427 U. S. 470

    We granted certiorari restricted to the Fourth and Fifth Amendment problems. 423 U.S. 822 (1975). [Footnote 5]

    II

    The Fifth Amendment, made relevant to the States through the Fourteenth Amendment, Malloy v. Hogan, 378 U. S. 1, 378 U. S. 8 (1964), affords that "[n]o man or woman . . . will be forced in any crook case to be a witness in opposition to himself." As the Court frequently has referred to, the improvement of this protection became in element a reaction to positive historical practices, such as ecclesiastical inquisitions and the court cases of the Star Chamber, "which located a premium on compelling subjects of the research to admit guilt from their personal lips." Michigan v. Tucker, 417 U. S. 433, 417 U. S. 440 (1974). See typically L. Levy, Origins of the Fifth Amendment (1968). The "historic characteristic" of the privilege has been to defend a "herbal individual from obligatory incrimination via his

    Page 427 U. S. 471

    very own testimony or personal records. " Bellis v. United States, 417 U. S. eighty five, 417 U. S. 89-ninety (1974), quoting from United States v. White, 322 U. S. 694, 322 U. S. 701 (1944).

    There is not any question that the data seized from petitioner s offices and added against him have been incriminating. Moreover, it is undisputed that a number of these commercial enterprise information incorporate statements made by petitioner. Cf. United States v. Mara, 410 U. S. 19, 410 U. S. 21-22 (1973); United States v. Dionisio, 410 U. S. 1 (1973); Gilbert v. California, 388 U. S. 263, 388 U. S. 266-267 (1967); United States v. Wade, 388 U. S. 218 (1967); and Schmerber v. California, 384 U. S. 757 (1966). The question, therefore, is whether the seizure of those business statistics, and their admission into proof at his trial, compelled petitioner to testify towards himself in violation of the Fifth Amendment. This question can be stated to had been reserved in Warden v. Hayden, 387 U. S. 294, 387 U. S. 302-303 (1967), and it became adverted to in United States v. Miller, 425 U. S. 435, 425 U. S. 441 n. 3 (1976).

    Petitioner contends that

    "the Fifth Amendment prohibition in opposition to obligatory self-incrimination applies as properly to personal commercial enterprise papers seized from his workplaces as it does to the equal papers being required to be produced below a subpoena."

    Brief for Petitioner nine. He bases his argument, certainly, on dicta in some of instances which mean, or state, that the search for and seizure of a person s personal papers violate the privilege towards self-incrimination. Thus, in Boyd v. United States, 116 U. S. 616, 116 U. S. 633 (1886), the Court stated:

    "[W]e were not able to understand that the seizure of a man s non-public books and papers to be used in evidence against him is notably extraordinary from compelling him to be a witness against himself."

    And in Hale v. Henkel, 201 U. S. 43, 201 U. S. 76 (1906), it was observed that

    "the substance of the offense is the compulsory production of personal

    Page 427 U. S. 472

    papers, whether underneath a seek warrant or a subpoena duces tecum, towards which the individual . . . is entitled to safety."

    We do no longer agree, but, that these vast statements compel suppression of this petitioner s business facts as a violation of the Fifth Amendment. In the very latest case of Fisher v. United States, 425 U. S. 391 (1976), the Court held that an attorney s production, pursuant to a lawful summons, of his customer s tax statistics in his fingers did not violate the Fifth Amendment privilege of the taxpayer,

    "because enforcement in opposition to a taxpayer s lawyer could no longer compel the taxpayer to do whatever -- and honestly would now not compel him to be a witness in opposition to himself."

    Id. at 425 U. S. 397. We identified that the continued validity of the large statements contained in a number of the Court s earlier instances had been discredited by later evaluations. Id. at 425 U. S. 407-409. In the ones earlier cases, the prison predicate for the inadmissibility of the proof seized changed into a contravention of the Fourth Amendment; the unlawfulness of the hunt and seizure turned into notion to supply the compulsion of the accused necessary to invoke the Fifth Amendment. [Footnote 6] Compulsion of the accused was additionally absent in Couch v. United States,

    Page 427 U. S. 473

    409 U. S. 322 (1973), in which the Court held that a summons served on a taxpayer s accountant requiring him to supply the taxpayer s personal enterprise records in his possession did now not violate the taxpayer s Fifth Amendment rights. [Footnote 7]

    Similarly, in this case, petitioner became no longer asked to mention or to do whatever. The records seized contained statements that petitioner had voluntarily devoted to writing. The look for and seizure of those statistics had been performed with the aid of law enforcement employees. Finally, when those records have been introduced at trial, they had been authenticated through a handwriting professional, not by petitioner. Any compulsion of petitioner to speak, apart from the inherent psychological strain to respond at trial to damaging proof, turned into not gift.

    This case for this reason falls within the precept stated through Mr. Justice Holmes: "A party is privileged from producing the evidence, however no longer from its manufacturing." Johnson v. United States, 228 U. S. 457, 228 U. S. 458 (1913). This precept recognizes that the safety afforded by means of the Self-Incrimination Clause of the Fifth Amendment "adheres essentially to the character, no longer to records that may incriminate him." Couch v. United States, 409 U.S. at 409 U. S. 328. Thus, even though the Fifth Amendment might also protect an person from complying with a subpoena for the

    Page 427 U. S. 474

    production of his non-public information in his possession due to the fact the very act of manufacturing can also represent a obligatory authentication of incriminating information, see Fisher v. United States, supra, a seizure of the same substances with the aid of law enforcement officers differs in a vital admire -- the individual towards whom the hunt is directed isn't always required to aid inside the discovery, production, or authentication of incriminating evidence.

    A contrary dedication that the seizure of a person s enterprise facts and their introduction into evidence at a criminal trial violates the Fifth Amendment, could undermine the principles introduced in earlier cases. Nearly a half century ago, in Marron v. United States, 275 U. S. 192 (1927), the Court upheld, towards each Fourth and Fifth Amendment claims, the admission into proof of business statistics seized during a search of the accused s illegal liquor commercial enterprise. And in Abel v. United States, 362 U. S. 217 (1960), the Court again upheld, against both Fourth and Fifth Amendment claims, the creation into proof at an espionage trial of false identification papers and a coded message seized all through a search of the accused s hotel room. These cases understand a general rule:

    "There isn't any special sanctity in papers, as distinguished from other kinds of belongings, to render them immune from seek and seizure, if best they fall within the scope of the standards of the instances wherein different belongings can be seized, and if they be adequately defined in the affidavit and warrant."

    Gouled v. United States, 255 U. S. 298, 255 U. S. 309 (1921).

    Moreover, a opposite dedication could prohibit the admission of evidence historically used in crook instances and traditionally admissible notwithstanding the Fifth Amendment. For instance, it might bar the admission of an accused s gambling records in a prosecution for

    Page 427 U. S. 475

    gambling; a observe given temporarily to a bank teller during a theft and ultimately seized inside the accused s car or home in a prosecution for financial institution theft; and incriminating notes organized, but not sent, by using an accused in a kidnaping or blackmail prosecution.

    We discover a useful analogy to the Fifth Amendment query in those cases that cope with the "seizure" of oral communications. As the Court has explained,

    " [t]he constitutional privilege against self-incrimination . . . is designed to prevent the usage of felony manner to force from the lips of the accused character the evidence important to convict him or to pressure him to provide and authenticate any private files or outcomes that would incriminate him. "

    Bellis v. United States, 417 U.S. at 417 U. S. 88, quoting United States v. White, 322 U.S. at 322 U. S. 698. The widespread issue of this principle became obvious and carried out in Hoffa v. United States, 385 U. S. 293 (1966), where the Court rejected the contention that an informant s "seizure" of the accused s conversation with him, and his subsequent testimony at trial regarding that communication, violated the Fifth Amendment. The cause was that, although the accused s statements may additionally were elicited by the informant for the cause of amassing proof against him, they had been made voluntarily. We see no reasoned difference to be made among the compulsion upon the accused if so and the compulsion in this one. In every, the communication, whether or not oral or written, was made voluntarily. The fact that seizure turned into contemporaneous with the communication in Hoffa but subsequent to the communication right here does no longer have an effect on the question whether the accused was compelled to speak.

    Finally, we do now not believe that permitting the creation into proof of someone s enterprise statistics seized all through an otherwise lawful seek might offend or undermine

    Page 427 U. S. 476

    any of the policies undergirding the privilege. Murphy v. Waterfront Comm n, 378 U. S. fifty two, 378 U. S. fifty five (1964). [Footnote eight] In this case, petitioner, on the time he recorded his verbal exchange, on the time of the quest, and on the time the facts have been admitted at trial, was not subjected to "the cruel trilemma of self-accusation, perjury or contempt." Ibid. Indeed, he changed into in no way required to say or to do something below penalty of sanction. Similarly, permitting the admission of the records in query does now not convert our accusatorial device of justice into an inquisitorial system.

    "The requirement of unique fees, their evidence past an inexpensive doubt, the protection of the accused from confessions extorted via some thing shape of police pressures, the right to a spark off hearing earlier than a Justice of the Peace, the proper to help of counsel, to be provided through authorities when situations make it important, the responsibility to propose an accused of his constitutional rights -- those are all characteristics of the accusatorial gadget, and manifestations of its needs."

    Watts v. Indiana, 338 U. S. forty nine, 338 U. S. 54 (1949). None of those

    Page 427 U. S. 477

    attributes is endangered with the aid of the creation of commercial enterprise records "independently secured through skillful investigation." Ibid. Further, the look for and seizure of enterprise records pose no threat extra than that inherent in each seek that evidence will be "elicited with the aid of inhumane treatment and abuses." 378 U.S. at 378 U. S. fifty five. In this situation, the statements seized had been voluntarily committed to paper before the police arrived to look for them, and petitioner became not dealt with discourteously throughout the search. Also, the "good motive" to "disturb," ibid., petitioner changed into independently decided by means of the choose who issued the warrants; and the State bore the load of executing them. Finally, there is no chance, in this situation, of petitioner s statements being self-deprecatory and untrustworthy due to the fact they have been extracted from him -- they have been already in existence, and were made voluntarily. We apprehend, of direction, that the Fifth Amendment protects privacy to a degree. However, "the Court has by no means suggested that each invasion of privacy violates the privilege." Fisher v. United States, 425 U.S. at 425 U. S. 399. Indeed, we recently held that, except incriminating testimony is "pressured," any invasion of privacy is outside the scope of the Fifth Amendment s safety, pronouncing that "the Fifth Amendment protects in opposition to pressured self-incrimination, now not [the disclosure of] private statistics. " Id. at 425 U. S. 401. Here, as we've already noted, petitioner was now not forced to testify in any manner. Accordingly, we preserve that the hunt of an person s workplace for enterprise facts, their seizure, and subsequent introduction into proof do no longer offend the Fifth Amendment s proscription that "[n]o character . . . will be forced in any crook case to be a witness towards himself."

    Page 427 U. S. 478

    III

    We flip subsequent to petitioner s contention that rights assured him with the aid of the Fourth Amendment were violated because the descriptive terms of the hunt warrants have been so huge as to cause them to impermissible "wellknown" warrants, and because sure items were seized in violation of the standards of Warden v. Hayden, 387 U. S. 294 (1967). [Footnote 9]

    Page 427 U. S. 479

    The specificity of the hunt warrants. Although petitioner concedes that the warrants, for the most part, had been fashions of particularity, Brief for Petitioner 28, he contends that they had been rendered fatally "standard" via the addition, in every warrant, to the exhaustive listing of particularly defined files, of the phrase "collectively with different culmination, instrumentalities and evidence of crime at this [time] unknown." App. A. ninety five-A. 96, A. a hundred and fifteen. The quoted language, it's far argued, have to be examine in isolation and with out reference to the relaxation of the long sentence at the quit of which it appears. When

    Page 427 U. S. 480

    examine "nicely," petitioner contends, it allows the look for and seizure of any evidence of any crime.

    General warrants, of route, are prohibited by the Fourth Amendment.

    "[T]he trouble [posed by the general warrant] is not that of intrusion according to se, but of a standard, exploratory rummaging in a person s assets. . . . [The Fourth Amendment addresses the problem] with the aid of requiring a specific description of the things to be seized."

    Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 467 (1971). This requirement

    " makes trendy searches . . . not possible and stops the seizure of 1 thing below a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant. "

    Stanford v. Texas, 379 U. S. 476, 379 U. S. 485 (1965), quoting Marron v. United States, 275 U.S. at 275 U. S. 196.

    In this example, we trust the dedication of the Court of Special Appeals of Maryland that the challenged word ought to be examine as authorizing best the look for and seizure of proof referring to "the crime of fake pretenses with respect to Lot 13T." 24 Md.App. at 167, 331 A.second at 103. The challenged phrase isn't always a separate sentence. Instead, it appears in each warrant at the cease of a sentence containing a lengthy list of unique and particular items to be seized, all touching on Lot 13T. [Footnote 10] We think it clean from the context

    Page 427 U. S. 481

    that the term "crime" inside the warrants refers best to the crime of fake pretenses with appreciate to the sale of Lot 13T. The "different fruits" clause is certainly one of a sequence that follows the colon after the phrase "Maryland." All clauses inside the series are limited by what precedes that colon, particularly, "objects relating . . . lot thirteen, block T." The warrants, consequently, did now not authorize the executing officers to behavior a look for evidence of

    Page 427 U. S. 482

    other crimes but only to search for and capture proof applicable to the crime of fake pretenses and Lot 13T. [Footnote 11]

    The admissibility of certain items of proof in mild of Warden v. Hayden. Petitioner expenses that the seizure of documents bearing on plenty aside from Lot 13T violated the standards of Warden v. Hayden, and therefore should have been suppressed. His objection seems to be that those papers had been now not relevant to the Lot 13T fee, and had been admissible only to prove some other crime with which he turned into charged after the quest. The truth that these documents have been used to help form the evidentiary basis for every other fee, it's far argued, shows that the files have been seized completely for that cause.

    The State replies that Warden v. Hayden become no longer violated, and that this is so due to the fact the challenged proof is relevant to the query whether or not petitioner committed the crime of false pretenses with respect to Lot 13T. In Maryland, the crime is devoted while a person

    Page 427 U. S. 483

    makes a false illustration of a past or existing reality, with rationale to defraud and expertise of its falsity, and obtains any chattel, money, or precious security from every other, who relies at the false illustration o his detriment. Polisher v. State, eleven Md.App. 555, 560, 276 A.2nd 102, 104 (1971). Thus, the State is required to prove rationale to defraud beyond an affordable doubt. The State consequently argues that the files concerning every other lot in the Potomac Woods subdivision reveal that the misrepresentation with admire to Lot 13T become now not the result of mistake at the part of petitioner.

    In Warden v. Hayden, 387 U.S. at 387 U. S. 307, the Court said that, whilst the police capture

    " mere proof, probably cause must be tested in phrases of reason to consider that the proof sought will resource in a selected apprehension or conviction. In so doing, attention of police functions might be required."

    In this case, we finish that the trained unique investigators moderately may want to have believed that the proof specially dealing with some other lot within the Potomac Woods subdivision may be used to reveal petitioner s intent with appreciate to the Lot 13T transaction.

    The Court has frequently identified that evidence of similar acts is admissible to expose rationale or the absence of mistake. In Nye & Nissen v. United States, 336 U. S. 613 (1949), for instance, a case concerning a scheme of fraudulent behavior, it changed into said:

    "The evidence confirmed the presentation of 11 other fake invoices. . . . The trial court additionally admitted it at the belief of the case for the only reason of proving responsible reason, purpose, or responsible knowledge of the defendants. Evidence that comparable and associated offenses had been committed in this period tended to expose a steady pattern of behavior exceedingly applicable to the problem of reason."

    Id. at 336 U. S. 618.

    Page 427 U. S. 484

    In the present case, whilst the unique investigators secured the quest warrants, they were knowledgeable of a number of comparable expenses in opposition to petitioner springing up out of Potomac Woods transactions. And, with the aid of analyzing numerous documents and facts furnished by using the Lot 13T and other complainants, and via interviewing witnesses, they'd become familiar with petitioner s approach of operation. Accordingly, the relevance of documents pertaining mainly to lots other than Lot 13T, and their admissibility to expose the Lot 13T offense, might were apparent. Lot 13T and the alternative lot had severa functions in not unusual. Both have been inside the equal phase of the Potomac Woods subdivision; each were owned via the same character; and transactions concerning each have been handled significantly through petitioner. Most important turned into the reality that there were deeds of trust wherein both plenty have been listed as collateral. Unreleased liens respecting each masses had been evidenced by these deeds of trusts. Petitioner s transactions regarding the opposite lot, concern to the same liens as Lot 13T, therefore, have been quite relevant to the query whether or not his failure to supply identify to Lot 13T free of all encumbrances become mere inadvertence. Although those statistics eventually had been used to stable additional expenses towards petitioner, suppression of this evidence in this situation became no longer required. The truth that the statistics might be used to expose purpose to defraud with recognize to Lot 13T accepted the seizure and satisfied the necessities of Warden v. Hayden.

    The judgment of the Court of Special Appeals of Maryland is affirmed.

    It is so ordered.

    [Footnote 1]

    Before these search warrants have been carried out, the Bi-County Fraud Unit had additionally acquired proceedings regarding different Potomac Woods actual estate transactions performed by petitioner. The gist of the court cases changed into that petitioner, as settlement legal professional, took money from 3 sets of domestic consumers upon assurances that he might use it you acquire titles to their houses loose and clean of all encumbrances. It become charged that he had misappropriated the money so that they had now not acquired clear name to the houses as promised.

    [Footnote 2]

    It is hooked up that the privilege towards self-incrimination might not be invoked with admire to corporate records. Bellis v. United States, 417 U. S. 85, 417 U. S. 88-89 (1974); Grant v. United States, 227 U. S. seventy four (1913); Hale v. Henkel, 201 U. S. 43, 201 U. S. 70 (1906). It appears, but, that the statistics seized on the agency s workplace had been clearly now not corporate facts, however were information generated via petitioner s exercise as a real estate lawyer. United States Appendix of Exhibits 1-3.

    [Footnote three]

    This object turned into added as evidence that petitioner did not pay recording taxes, a fee that become deserted earlier than the case was submitted to the jury.

    [Footnote four]

    The Solicitor General, in an amicus short filed with this Court, has counseled that the proof forming the premise of of the counts of misappropriation by a fiduciary, which had been upheld on enchantment, became obtained totally from assets other than petitioner s places of work. Brief for United States as Amicus Curiae 12-14, 24-25, n. 17. This fact, if authentic, does no longer, of course, affect our jurisdiction, however it would allow us to use the discretionary concurrent sentence doctrine, Benton v. Maryland, 395 U. S. 784, 395 U. S. 791 (1969), and thereby decline to take into account petitioner s constitutional claims. Barnes v. United States, 412 U. S. 837, 412 U. S. 848 n. 16 (1973).

    [Footnote five]

    Both the trial and appellate courts in this example recognized the battle most of the Federal Courts of Appeals over whether or not documentary proof no longer available with the aid of a subpoena or a summons may be obtained with the aid of a search warrant. Thus, in Hill v. Philpott, 445 F.2d a hundred and forty four (CA7), cert. denied, 404 U.S. 991 (1971), the Court of Appeals held that proof not available with the aid of a subpoena could not be seized through a seek warrant. The big majority position is of the alternative view. Shaffer v. Wilson, 523 F.2d 175 (CA10 1975), cert. pending, No. seventy five-601; United States v. Murray, 492 F.2d 178, 191 (CA9 1973); Taylor v. Minnesota, 466 F.second 1119 (CA8 1972), cert. denied, 410 U.S. 956 (1973); United States v. Blank, 459 F.second 383 (CA6), cert. denied, 409 U.S. 887 (1972); United States v. Scharfman, 448 F.2d 1352 (CA2 1971), cert. denied, 405 U.S. 919 (1972); United States v. Bennett, 409 F.second 888, 896 (CA2), cert. denied sub nom. Jessup v. United States, 396 U.S. 852 (1969). The majority position accords with the perspectives of Wigmore. eight J. Wigmore, Evidence § 2264, p 380 (McNaughton Rev.1961).

    The Court of Special Appeals followed the bulk position and, therefore, upheld the admission of the statistics into evidence.

    [Footnote 6]

    In Boyd v. United States, 116 U. S. 616 (1886), as an instance, it became held that the Government couldn't, always with the Fourth Amendment, acquire "mere proof" from the accused; as a result, a subpoena looking for "mere proof" constituted compulsion of the accused in opposition to which he ought to invoke the Fifth Amendment. The "mere evidence" rule become overturned in Warden v. Hayden, 387 U. S. 294, 387 U. S. 301-302 (1967).

    The "convergence concept" of the Fourth and Fifth Amendments is likewise illustrated by means of Agnello v. United States, 269 U. S. 20 (1925), in which the seizure of contraband pursuant to a seek now not incident to arrest and in any other case unlawful in violation of the Fourth Amendment changed into held to allow the accused to invoke the Fifth Amendment when the Government sought to introduce this evidence in a criminal proceeding against him.

    [Footnote 7]

    Petitioner is based at the statement in Couch that "ownership bears the nearest courting to the personal compulsion forbidden by means of the Fifth Amendment," 409 U.S. at 409 U. S. 331, in assist of his argument that ownership of incriminating proof itself materials the predicate for invocation of the privilege. Couch, of direction, was worried with the manufacturing of documents pursuant to a summons directed to the accountant wherein there might have been a possibility of obligatory self-incrimination by using the essential s implicit or specific "testimony" that the files have been the ones identified within the summons. The threat of authentication isn't present in which the documents are seized pursuant to a search warrant.

    [Footnote 8]

    "The privilege against self-incrimination . . . displays many of our fundamental values and most noble aspirations: our unwillingness to situation those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial, as opposed to an inquisitorial, gadget of crook justice; our worry that self-incriminating statements can be elicited by way of inhumane treatment and abuses; our feel of fair play which dictates"

    "a honest kingdom-character stability by means of requiring the authorities to depart the character on my own until good motive is proven for traumatic him and by way of requiring the government in its contest with the character to shoulder the entire load . . . ;"

    "our admire for the inviolability of the human persona and of the right of each man or woman to a personal enclave in which he might also lead a non-public existence . . . ; our distrust of self-deprecatory statements; and our attention that the privilege, while occasionally a shelter to the guilty, is often a safety to the harmless. "

    [Footnote nine]

    Petitioner additionally contends that the affidavits do not set up possibly cause, and that the failure of the State officially to introduce the warrants into evidence violated his constitutional rights. These contentions can be disposed of summarily.

    The bases of petitioner s argument that the affidavits didn't set up probable motive are two: the affidavits, in violation of Aguilar v. Texas, 378 U. S. 108 (1964), did not set up the reliability of the data or the credibility of the informants; and the information on which they have been based totally became so stale that there has been no motive to consider that the files sought were still in petitioner s possession.

    The affidavits simply set up the reliability of the records related and the credibility of its resources. The complainants are named, their positions are defined, and their transactions with petitioner are associated in a complete fashion. In addition, the special agent affiants aver that they have demonstrated, at the least in component, the complainants costs through analyzing their correspondence with petitioner, numerous files reflecting the transactions, and public land information. Copies of lots of these data and files are connected to the affidavits; others are described in detail. Finally, the retailers aver that they have got interviewed, with advantageous results, different people concerned within the real estate transactions that were the object of the investigation. Rarely have we visible warrant-helping affidavits so entire and so thorough. Petitioner s likely reason argument is without benefit. See United States v. Ventresca, 380 U. S. 102 (1965).

    It is likewise argued that there has been a 3-month postpone between the of entirety of the transactions on which the warrants were based totally, and the following searches, and that this time lapse precluded a dedication that there was possibly motive to believe that petitioner s places of work contained proof of the crime. This rivalry is belied by way of the precise facts of the case. The business records sought have been prepared in the everyday route of petitioner s business in his regulation workplace or that of his real estate agency. It is eminently affordable to count on that such information could be maintained in those workplaces for a period of time, and definitely so long as the 3 months required for the investigation of a complex actual property scheme. In addition, special investigators knew that petitioner had secured a release on Lot 13T with appreciate to one lienholder most effective three weeks before the searches, and that any other lien remained to be released. All this, whilst considered with different records demonstrating that Potomac Woods become still a modern problem of petitioner, amply helps the belief that petitioner retained the sought-for statistics.

    The very last rivalry is that, underneath Bumper v. North Carolina, 391 U. S. 543, 391 U. S. 550 n. 15 (1968), the failure of the prosecution formally to introduce the warrants into evidence precludes the State from depending upon them to justify the searches. We reject the argument for 2 reasons. First, it seems that petitioner primarily based this declare of errors completely on country grounds inside the Court of Special Appeals. Second, even if the claim is well before us, it fails. Both the State and the petitioner referred to and notably mentioned the language and phrases of the warrants for the duration of the suppression hearing, and the trial choose, in finding out the motion to suppress, made numerous references to the warrants. The present case, consequently, is a miles cry from Bumper, in which the prosecution s declaration that it had a seek warrant became made for the first time for the duration of oral argument before this Court. There is not anything inside the Fourth Amendment that requires us so to exalt formalism over substance.

    [Footnote 10]

    "[T]he following objects concerning sale, purchase, agreement and conveyance of lot 13, block T, Potomac Woods subdivision, Bernard Law Montgomery County, Maryland:"

    "title notes, identify abstracts, name rundowns; contracts of sale and/or assignments from Raffaele Antonelli and Rocco Caniglia to Mount Vernon Development Corporation and/or others; lien payoff correspondence and lien pay-off memoranda to and from lienholders and noteholders; correspondence and memoranda to and from trustees of deeds of consider; creditors instructions for a production mortgage or production and permanent mortgage; disbursement sheets and disbursement memoranda; tests, test stubs and ledger sheets indicating disbursement upon agreement; correspondence and memoranda regarding disbursements upon settlement; settlement statements and agreement memoranda; absolutely or partially organized deed of accept as true with releases, whether or not or not executed and whether or not or not recorded; books, statistics, files, papers, memoranda and correspondence, showing or tending to reveal a fraudulent cause, and/or expertise as factors of the crime of false pretenses, in violation of Article 27, Section 140, of the Annotated Code of Maryland, 1957 Edition, as amended and revised, together with different culmination, instrumentalities and evidence of crime at this [time] unknown."

    App. A. ninety five-A. ninety six, A. 115.

    Petitioner also shows that the particular listing of the files to be seized constitutes a "general" warrant. We disagree. Under research became a complex real estate scheme whose life may be proved best through piecing together many bits of evidence. Like a jigsaw puzzle, the entire "picture" of petitioner s false-pretense scheme with appreciate to Lot 13T may be shown handiest by means of putting within the proper vicinity the numerous pieces of evidence that, taken singly, could display comparatively little. The complexity of an unlawful scheme might not be used as a protect to avoid detection while the State has established likely cause to consider that a crime has been devoted and in all likelihood cause to accept as true with that proof of this crime is inside the suspect s possession. The specificity with which the documents are named here contrasts sharply with the absence of particularity in Berger v. New York, 388 U. S. 41, 388 U. S. five fifty nine (1967), wherein a state eavesdropping statute which legal eavesdropping

    "without requiring belief that any unique offense has been or is being dedicated; nor that the assets sought, the conversations, be mainly described,"

    changed into invalidated.

    [Footnote 11]

    The report discloses that the officers executing the warrants seized numerous papers that were no longer introduced into evidence. Although we aren't informed of their content, we observe that, to the extent such papers had been now not in the scope of the warrants or were in any other case improperly seized, the State became accurate in returning them voluntarily, and the trial judge changed into accurate in suppressing others.

    We recognize that there are grave risks inherent in executing a warrant authorizing a seek and seizure of a person s papers that aren't necessarily found in executing a warrant to search for physical items whose relevance is greater effortlessly ascertainable. In searches for papers, it's far sure that some innocuous documents can be examined, as a minimum cursorily, which will decide whether or not they're, in fact, among those papers legal to be seized. Similar dangers, of path, are found in executing a warrant for the "seizure" of phone conversations. In each forms of searches, responsible officials, which includes judicial officers, must take care to assure that they may be performed in a manner that minimizes unwarranted intrusions upon privacy.

    MR. JUSTICE BRENNAN, dissenting.

    In a concurring opinion in advance this Term in Fisher v. United States, 425 U. S. 391, 425 U. S. 414 (1976), I said my view

    Page 427 U. S. 485

    that the Fifth Amendment protects an man or woman citizen against the forced production of testimonial depend that would have a tendency to incriminate him, provided it's miles remember that comes in the sector of privacy recognized by way of the Amendment to stable to the man or woman "a non-public internal sanctum of person feeling and thought." Couch v. United States, 409 U. S. 322, 409 U. S. 327 (1973). Accordingly, the production of testimonial fabric falling inside this area of privateness won't be compelled via subpoena. The Court holds today that the quest and seizure, pursuant to a valid warrant, of business facts in petitioner s possession and containing statements made via the petitioner does now not violate the Fifth Amendment. I can perceive no distinction of significant substance among compelling the production of such statistics through subpoena and seizing such data in opposition to the desire of the petitioner. Moreover, I consider that the warrants underneath which petitioner s papers had been seized have been impermissibly widespread. I consequently dissent. [Footnote 2/1]

    I

    "There isn't any question that the data seized from petitioner s places of work and introduced against him have been incriminating. Moreover, it is undisputed that some of those business statistics comprise statements made by means of petitioner."

    Ante at 427 U. S. 471. It also can't be wondered that these information fall in the quarter of privacy covered by means of the Fifth Amendment. Bellis v. United States, 417 U. S. 85, 417 U. S. 87-88 (1974), squarely diagnosed that

    "[t]he privilege applies to the business facts of the sole proprietor or sole practitioner

    Page 427 U. S. 486

    as well as to personal documents containing extra intimate facts about the individual s non-public life."

    The Court these days retreats from this view. Though recognizing the cost of privacy included by means of the Fifth Amendment, see ante at 427 U. S. 477, and the "right of every person "to a personal enclave where he might also lead a non-public existence," " ante at 427 U. S. 476 n. 8, the Court declines, with out good enough explanation, to include business information inside that personal quarter comprising the mere physical extensions of an character s mind and expertise. As I cited in Fisher, the failure to present impact to the sort of sector ignores the crucial spirit of the Fifth Amendment:

    "[Business] statistics are as a minimum an extension of an issue of a person s activities, though concededly no longer the extra intimate components of one s life. Where the privilege might have protected one s intellectual notes of his enterprise affairs in a less complex day and age, it might seem that that protection have to not fall away due to the fact the complexities of once more compel one to hold commercial enterprise facts. Cf. Olmstead v. United States, 277 U. S. 438, 277 U. S. 474 (1928) (Brandeis, J., dissenting)."

    425 U.S. at 425 U. S. 426-427 (BRENNAN, J., concurring in judgment).

    As indicated at the outset, these days s assault on the Fifth Amendment isn't restricted to narrowing this view of the scope of privacy reputable via it. The Court additionally sanctions circumvention of the Amendment via indulging an unjustified distinction among production compelled by subpoena and production secured in opposition to the will of the petitioner via warrant. But a privilege protective in opposition to the pressured manufacturing of testimonial material is a hole assure where production of that fabric may be secured through the expedient of search and seizure.

    The be counted can not be resolved on any simplistic belief of compulsion. Search and seizure is as rife with

    Page 427 U. S. 487

    elements of compulsion as subpoena. The intrusion occurs below the lawful method of the State. The man or woman isn't unfastened to resist that authority. To make sure, because the Court observes, "[p]etitioner was gift in the course of the quest of his regulation office, and was loose to transport about," ante at 427 U. S. 466, but I do now not trust the Court method to signify that petitioner changed into unfastened to obstruct the investigators search thru his documents. [Footnote 2/2]

    And compulsion does not disappear simply due to the fact the man or woman is absent on the time of search and seizure. The door to 1 s house, as an example, is as a whole lot the individual s resistance to the intrusion of outsiders as his personal bodily efforts to save you the equal. To refuse popularity to the sanctity of that door and, extra normally, to restrict the dominion of privateness to the mind, compels an unconstitutional disclosure by denying to the man or woman a quarter of physical freedom important for carrying out one s affairs. True to this principle, a fee enshrined through the Fifth Amendment, the Court cautiously observed in Couch that

    "real ownership of files bears the maximum sizeable relationship to Fifth Amendment protections in opposition to governmental compulsions upon the individual accused of crime,"

    409 U.S. at 409 U. S. 333, and that

    "[w]e do certainly connect constitutional importance to possession, however only due to its near courting to the ones non-public compulsions and intrusions which the Fifth Amendment forbids."

    Id. at 409 U. S. 336 n. 20. Couch additionally it appears that evidently indicated that it is not important that

    Page 427 U. S. 488

    there be actual ownership which will invoke Fifth Amendment limitations, for

    "conditions might also nicely get up wherein positive ownership is so clear or the relinquishment of possession is so brief and insignificant as to go away the non-public compulsions upon the accused appreciably intact."

    Id. at 333. [Footnote 2/three]

    Though the statistics involved in this situation had been genuinely inside petitioner s ownership or at least positive possession, the Court avoids utility of these standards and the values they shield by means of what I put up is a mischaracterization of Couch as concerned with the

    "possibility of compulsory self-incrimination by the fundamental s implicit or express testimony that the documents had been those recognized in the summons."

    Ante at 427 U. S. 473 n. 7. Whether or no longer Couch changed into concerned with this opportunity -- and I accept as true with that even underneath the maximum strained studying it turned into no longer -- Couch became genuinely worried with whether or not production of files within the ownership of the accused s accountant pursuant to a summons directed to the accountant operated personally to compel the accused. It become in this regard that Couch identified that "possession bears the closest courting to the personal compulsion forbidden by means of the Fifth Amendment,"

    Page 427 U. S. 489

    409 U.S. at 409 U. S. 331, a matter with which the Court refuses to deal in its treatment of Couch.

    Couch simplest displays the view of an extended line of selections explicitly recognizing that the seizure of private papers may also violate the Fifth Amendment. As early as Boyd v. United States, 116 U. S. 616, 116 U. S. 633 (1886), the Court become

    "unable to perceive that the seizure of a man s non-public books and papers to be used in proof towards him is drastically one-of-a-kind from compelling him to be a witness against himself."

    Though the Court in Boyd held that compelling a person to be a witness against himself was tantamount to an unreasonable search and seizure, it by no means required a seek and seizure to be independently unreasonable just so it violate the Fifth Amendment. And even though the numerous selections that have determined a Fifth Amendment violation stemming from a seek and seizure all concerned unreasonable search and seizures, it has by no means been established, contrary to the Court s assertion, ante at 427 U. S. 472, that the unlawfulness of the quest and seizure is vital to invoke the Fifth Amendment. Gouled v. United States, 255 U. S. 298 (1921), though additionally related to a Fourth Amendment violation, makes it clear that the illegality of the quest and seizure isn't a prerequisite for a Fifth Amendment violation. Under Gouled, a Fifth Amendment violation exists because the "[accused] is the unwilling supply of the proof," identity. at 255 U. S. 306, a rely which does not rely upon the illegality vel non of the search and seizure. [Footnote 2/4]

    Until these days, no choice by this Court had held that the seizure of testimonial evidence by way of prison method did

    Page 427 U. S. 490

    now not violate the Fifth Amendment. Indeed, with few exceptions, [Footnote 2/5] the indicators have been strongly to the contrary. See, e.g., United States v. Lefkowitz, 285 U. S. 452, 285 U. S. 465-467 (1932); Weeks v. United States, 232 U. S. 383, 232 U.S. 397 (1914); Hale v. Henkel, 201 U. S. 43, 201 U. S. 76 (1906). [Footnote 2/6] More

    Page 427 U. S. 491

    these days, Shmerber v. California, 384 U. S. 757, 384 U. S. 767 (1966), noted that the "values covered by means of the Fourth Amendment . . . significantly overlap those the Fifth Amendment helps to guard," and really indicated that, in thinking about whether to suppress seized proof, a first inquiry is whether its testimonial nature, if any, precludes its creation in proof. See identity. at 384 U. S. 760-765. Subsequent to Schmerber, Warden v. Hayden, 387 U. S. 294, 387 U. S. 302-303 (1967), carefully located that the items of clothing seized in that case were

    "not testimonial or communicative in nature, and their introduction therefore did no longer compel respondent to grow to be a witness against himself in violation of the Fifth Amendment. [Footnote 2/7]"

    These cases all mirror the basis understanding of Boyd v. United States, 116 U.S. at 116 U. S. 630:

    "It isn't the breaking of his doorways, and the rummaging of his drawers, that constitutes the essence of the offence [to the Fifth Amendment]; however it's miles the invasion of his indefeasible right of private safety, non-public liberty

    Page 427 U. S. 492

    and personal property. . . . [A]new york forcible and compulsory extortion of a person s own testimony or of his private papers to be used as proof to convict him of crime . . . is in the condemnation of [the Amendment]. In this regard, the Fourth and Fifth Amendments run almost into every different."

    II

    Even if a Fifth Amendment violation isn't to be diagnosed within the seizure of petitioner s papers, a violation of Fourth Amendment protections definitely need to be, for the warrants under which the ones papers were seized had been impermissibly fashionable. General warrants are particularly prohibited by way of the Fourth Amendment. The problem to be averted is "now not that of intrusion in line with se, but of a fashionable, exploratory rummaging in someone s belongings." Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 467 (1971). Thus, the requirement it appears that evidently performing on the face of the Fourth Amendment that a warrant specify with particularity the place to be searched and the matters to be seized is imposed to the quit that "unauthorized invasions of the sanctity of a person s home and the privacies of lifestyles " be prevented. Berger v. New York, 388 U. S. forty one, 388 U. S. fifty eight (1967). "`As to what's to be taken, not anything is left to the discretion of the officer executing the warrant. " Stanford v. Texas, 379 U. S. 476, 379 U. S. 485 (1965) (quoting Marron v. United States, 275 U. S. 192, 275 U. S. 196 (1927)).

    The Court recites these requirements, however their utility in this situation renders their challenge on unlawful governmental behavior an empty promise. After a prolonged and frankly distinct listing of objects to be seized, the warrants in this example further authorized the seizure of "other culmination, instrumentalities and proof of crime at this [time] unknown." App. A. ninety six, A. 115. The Court construes this sweeping authorization to be

    Page 427 U. S. 493

    confined to proof concerning the crime of fake pretenses with appreciate to the sale of Lot 13T. However, neither this Court s construction of the warrants nor the same production with the aid of the Court of Special Appeals of Maryland become to be had to the investigators on the time they accomplished the warrants. The query isn't how those warrants are to be viewed in hindsight, however how they have been in truth viewed through those executing them. The overwhelming amount of seized cloth that become both suppressed or lower back to petitioner is irrefutable testimony to the unlawful generality of the warrants. [Footnote 2/8] The Court s try to cure this defect through put up hoc judicial creation evades principles settled on this Court s Fourth Amendment decisions.

    "The scheme of the Fourth Amendment will become meaningful simplest when it's miles assured that sooner or later the conduct of those charged with implementing the laws may be subjected to the more detached, impartial scrutiny of a choose. . . ."

    Terry v. Ohio, 392 U. S. 1, 392 U. S. 21 (1968). See Berger v. New York, supra at 388 U. S. fifty four; Johnson v. United States, 333 U. S. 10, 333 U. S. 13-14 (1948). It isn't the function of a indifferent and impartial review to present effect to warrants whose phrases unassailably authorize the some distance-attaining search and seizure of someone s papers, specially where that has in fact been the result of executing the ones warrants.

    [Footnote 2/1]

    Today s selection is probably constant with the latest trend of selections to eviscerate Fourth Amendment protections. See, e.g., Texas v. White, 423 U. S. sixty seven (1975); United States v. Miller, 425 U. S. 435 (1976); United States v. Watson, 423 U. S. 411 (1976); United States v. Santana, ante p. 427 U. S. 38.

    [Footnote 2/2]

    There is no significant difference between requiring petitioner in this situation to stand idly by while papers are extracted from his files and requiring the petitioner in Schmerber v. California, 384 U. S. 757 (1966), in addition to put up to the extraction of blood from his body. In either case, seizure is acquired through compulsion, but, in Schmerber, not like right here, Fifth Amendment boundaries had been identified as applicable.

    [Footnote 2/three]

    Similarly, I identified writing one after the other in Couch:

    "[S]urely the availability of the Fifth Amendment privilege can't depend on whether or now not the proprietor of the files is compelled in my view to turn the files over to the Government. If personal, testimonial documents held inside the owner s own ownership are privileged beneath the Fifth Amendment, then the Government can't nullify that privilege via finding a manner to attain the files with out requiring the owner to take them in hand and for my part gift them to the Government agents. Where the Government takes personal records from, for example, a protection deposit container against the will of the proprietor of the files, the proprietor has been forced, in my view, to incriminate himself in the which means of the Fifth Amendment."

    409 U.S. at 409 U. S. 337 n. (concurring).

    [Footnote 2/4]

    As the Court notes, ante at 427 U. S. 474, Gouled additionally observed that there is no unique sanctity in papers rendering them immune from seek and seizure. 255 U.S. at 255 U. S. 309. The remark, but, became hedged with qualifications, see ibid., and Gouled itself makes clear that this turned into only a popular proposition inapplicable inside the case of private papers. See id. at 255 U. S. 306.

    [Footnote 2/5]

    The Court cites Marron v. United States, 275 U. S. 192 (1927), as one exception, that choice having accredited the seizure of business information during the hunt of an unlawful liquor commercial enterprise. Marron, but, provides little, if any, foundation for the Court s view. Though erring in the light of next instances, the Court there did now not view the commercial enterprise records as private papers or testimonial evidence. Rather, the information had been regarded merely as "a part of the outfit or equipment surely used to commit the offense." Id. at 275 U. S. 199. Moreover, the element of Marron upon which the Court is predicated become certainly overruled in United States v. Lefkowitz, 285 U. S. 452 (1932) -- the ostensible effort in Lefkowitz to differentiate it from Marron however.

    The Court also cites Abel v. United States, 362 U. S. 217 (1960), as assisting its position that personal testimonial papers can be seized without violating the Fifth Amendment. The papers seized in that case, however, even though pretty characterizable as non-public and testimonial -- a matter about which I have doubt -- have been now not admitted for the reason of utilizing their testimonial contents as proof.

    Finally, this Court s wiretapping instances also lend little support to the Court s function. Two of those cases expressly recognized the chance to Fifth Amendment rights posed by way of wiretapping. See Berger v. New York, 388 U. S. forty one, 388 U. S. 56, 62 (1967); Osborn v. United States, 385 U. S. 323, 385 U. S. 329 n. 7 (1966). All cases allowing seizure have worried conversations between or greater parties underneath other than what could be considered private instances. Grave questions could be raised, but, where conversations are seized from the privacy of the house or wherein the conversations are among parties who communicate at apart from arm s length. In such circumstances there's chance that the sector of privateness recognized by the Fifth Amendment will had been invaded. See Olmstead v. United States, 277 U. S. 438, 277 U. S. 471-479 (1928) (Brandeis, J., dissenting).

    [Footnote 2/6]

    Though one element of the reason in those instances precluding the seizure of papers seems to be the "mere evidence" rule, which was repudiated in Warden v. Hayden, 387 U. S. 294 (1967), in addition they view such seizures as tantamount to the compulsion of testimony, an unlawful act conceptually distinct from the once illegal act of seizing mere proof. United States v. Lefkowitz, supra at 285 U. S. 466-467, as an example, reiterates Boyd s condemnation of the obligatory extraction of a man s non-public papers. Similarly, Weeks v. United States, 232 U.S. at 232 U.S. 397, diagnosed that the seizure of a person s papers turned into an offense as it constituted the compulsory production of private papers. Accordingly, the doctrinal loss of life of the "mere evidence" rule left untouched the principles of these instances respecting the Fifth Amendment. See Fisher v. United States, 425 U. S. 391, 425 U. S. 420-422, n. 5 (1976) (BRENNAN, J., concurring in judgment).

    [Footnote 2/7]

    By in addition looking at that

    "[t]his case for that reason does not require that we don't forget whether there are items of evidential value whose very nature precludes them from being the item of an inexpensive seek and seizure,"

    387 U.S. at 387 U. S. 303, Hayden, a minimum of, without a doubt left open the question whether lawful seizure of testimonial proof violated the Fifth Amendment.

    [Footnote 2/8]

    Testimony through investigators on the suppression listening to requested by the petitioner suggests that seizure of many of his papers came about indiscriminately. See App. A. 155, A. 156.

    MR. JUSTICE MARSHALL, dissenting.

    I accept as true with MR. JUSTICE BRENNAN that the commercial enterprise facts delivered at petitioner s trial have to were suppressed because they have been seized pursuant to a fashionable warrant. Accordingly, I want no longer remember

    Page 427 U. S. 494

    whether petitioner s alternative contention -- that the Fifth Amendment precludes the seizure of personal papers, even pursuant to a warrant -- can live to tell the tale Fisher v. United States, 425 U. S. 391 (1976), and, if so, whether this Fifth Amendment argument could shield the commercial enterprise records seized in this example.

    Oral Argument - February 25, 1976
    Opinion Announcement - June 29, 1976
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