Wolf v. Colorado

338 U.S. 25

Case Year: 1949

Case Ruling: 6-3, Affirmed

Opinion Justice: Frankfurter

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Burton, Jackson, Reed, Vinson


1st Concurring Opinion

Author: Black


1st Dissenting Opinion

Author: Douglas


2nd Concurring Opinion



2nd Dissenting Opinion

Author: Murphy


3rd Concurring Opinion



3rd Dissenting Opinion

Author: Rutledge


Other Concurring Opinions:


Dr. Julius Wolf, a Colorado physician specializing in obstetrics, was convicted in two separate trials of conspiracy to commit abortions. Wolf's legal problems began when the Denver District Attorney's Office learned of a woman suffering complications from an illegal abortion. She identified Dr. Wolf, among others, as having participated in her procedure. When law enforcement officials arrested Dr. Wolf, they searched his office and seized his 1943 and 1944 appointment books. The officers did not have a warrant to search, seize, or arrest. The appointment books contained the names of Wolf's patients and the dates they had received examinations and treatments. Police used these books to identify women who had gone to him for care. Interviews with these women resulted in sufficient evidence to make a case against Wolf. At Wolf's trials evidence from the appointment books and testimony from former patients were introduced. Wolf's attorney unsuccessfully objected to the use of this evidence on the grounds that it was based on an unconstitutional search and seizure, conducted without a warrant, permission, or a court order. The Colorado Supreme Court affirmed Wolf's convictions.



The precise question for consideration is this: Does a conviction by a State court for a State offense deny the 'due process of law' required by the Fourteenth Amendment, solely because evidence that was admitted ... at the trial was obtained under circumstances which would have rendered it admissible in a prosecution for violation of a federal law in a court of the United States because there deemed to be an infraction of the Fourth Amendment as applied in Weeks v. United States?...

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 as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.

Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing such a basic right raise questions of a different order. How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution.

In Weeks v. United States this Court held that in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure. This ruling was made for the first time in 1914. It was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution. The decision was a matter of judicial implication. Since then it has been frequently applied and we stoutly adhere to it. But the immediate question is whether the basic right to protection against arbitrary intrusion by the police demands the exclusion of logically relevant evidence obtained by an unreasonable search and seizure because, in a federal prosecution for a federal crime, it would be excluded. As a matter of inherent reason, one would suppose this to be an issue to which men with complete devotion to the protection of the right of privacy might give different answers. When we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right. The contrariety of views of the States is particularly impressive in view of the careful reconsideration which they have given the problem in the light of the Weeks decision.

I. Before the Weeks decision 27 States had passed on the admissibility of evidence obtained by unlawful search and seizure.

(a) Of these, 26 States opposed the Weeks doctrine.

(b) Of these, 1 State anticipated the Weeks doctrine.

II. Since the Weeks decision 47 States all told have passed on the Weeksdoctrine.

(a) Of these, 20 passed on it for the first time.

(1) Of the foregoing States, 6 followed the Weeksdoctrine.

(2) Of the foregoing States, 14 rejected the Weeks doctrine.

(b) Of these, 26 States reviewed prior decisions contrary to the Weeks doctrine.

(1) Of these, 10 States have followed Weeks, overruling or distinguishing their prior decisions.

(2) Of these, 16 States adhered to their prior decisions against Weeks.

(c) Of these, 1 State adhered to its prior formulation of the Weeks doctrine.

III. As of today 30 States reject the Weeks doctrine, 17 States are in agreement with it.

IV. Of 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which have passed on the question, none has held evidence obtained by illegal search and seizure inadmissible.

The jurisdictions which have rejected the Weeks doctrine have not left the right to privacy without other means of protection. Indeed, the exclusion of evidence is a remedy which directly serves only to protect those upon whose person or premises something incriminating has been found. We cannot, therefore, regard it as a departure from basic standards to remand such persons, together with those who emerge scatheless from a search, to the remedies of private action and such protection as the internal discipline of the police, under the eyes of an alert public opinion, may afford. Granting that in practice the exclusion of evidence may be an effective way of deterring unreasonable searches, it is not for this Court to condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective.... We cannot brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy not by way of disciplinary measures but by overriding the relevant rules of evidence. There are, moreover, reasons for excluding evidence unreasonable obtained by the federal police which are less compelling in the case of police under State or local authority. The public opinion of a community can far more effectively be exerted against oppressive conduct on the part of police directly responsible to the community itself than can local opinion, sporadically aroused, be brought to bear upon remote authority pervasively exerted throughout the country.

We hold, therefore, that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure....



I believe for the reasons stated by MR. JUSTICE BLACK in his dissent in Adamson v. California that the Fourth Amendment is applicable to the States. I agree with MR. JUSTICE MURPHY that the evidence obtained in violation of it must be excluded in state prosecutions as well as in federal prosecutions, since in absence of that rule of evidence the Amendment would have no effective sanction. I also agree with him that under thattest this evidence was improperly admitted and that the judgments of conviction must be reversed.


It is disheartening to find so much that is right in an opinion which seems to me so fundamentally wrong. Of course I agree with the Court that the Fourteenth Amendment prohibits activities which are proscribed by the search and seizure clause of the Fourth Amendment. See my dissenting views, and those of MR. JUSTICE BLACK, in Adamson v. California. Quite apart from the blanket application of the Bill of Rights to the States, a devotee of democracy would ill suit his name were he to suggest that his home's protection against unlicensed governmental invasion was not 'of the very essence of a scheme of ordered liberty.' Palko v. Connecticut. It is difficult for me to understand how the Court can go this far and yet be unwilling to make the step which can give some meaning to the pronouncements it utters.

Imagination and zeal may invent a dozen methods to give content to the commands of the Fourth Amendment. But this Court is limited to the remedies currently available. It cannot legislate the ideal system. If we would attempt the enforcement of the search and seizure clause in the ordinary case today, we are limited to three devices: judicial exclusion of the illegally obtained evidence; criminal prosecution of violators; and civil action against violators in the action of trespass.

Alternatives are deceptive. Their very statement conveys the impression that one possibility is as effective as the next. In this case their statement is blinding. For there is but one alternative to the rule of exclusion. That is no sanction at all. This has been perfectly clear since 1914, when a unanimous Court decided Weeks v. United States. 'If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense,' we said, 'the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.' 'It would reduce the Fourth Amendment to a form of words.' Holmes, J., for the Court, in Silverthorne Lumber Co. v. United States.

Today the Court wipes those statements from the books with its bland citation of 'other remedies.' Little need be said concerning the possibilities of criminal prosecution. Self-scrutiny is a lofty ideal, but its exaltation reaches new heights if we expect a District Attorney to prosecute himself or his associates for well-meaning violations of the search and seizure clause during a raid the District Attorney or his associates have ordered. But there is an appealing ring in another alternative. A trespass action for damages is a venerable means of securing reparation for unauthorized invasion of the home. Why not put the old writ to a new use? When the Court cites cases permitting the action, the remedy seems complete.

But what an illusory remedy this is, if by 'remedy' we mean a positive deterrent to police and prosecutors tempted to violate the Fourth Amendment. The appealing ring softens when we recall that in a trespass action the measure of damages is simply the extent of the injury to physical property. If the officer searches with care, he can avoid all but nominal damages--a penny, or a dollar. Are punitive damages possible? Perhaps. But a few states permit none, whatever the circumstances. In those that do, the plaintiff must show the real ill will or malice of the defendant, and surely it is not unreasonable to assume that one in honest pursuit of crime bears no malice toward the search victim. If that burden is carried, recovery may yet be defeated by the rule that there must be physical damages before punitive damages may be awarded. In addition, some states limit punitive damages to the actual expenses of litigation.... Others demand some arbitrary ratio between actual and punitive damages before a verdict may stand.... Even assuming the ill will of the officer, his reasonable grounds for belief that the home he searched harbored evidence of crime is admissible in mitigation of punitive damages.... The bad reputation of the plaintiff is likewise admissible.... If the evidence seized was actually used at a trial, that fact has been held a complete justification of the search, and a defense against the trespass action.... And even if the plaintiff hurdles all these obstacles, and gains a substantial verdict, the individual officer's finances may well make the judgment useless--for the municipality, of course, is not liable without its consent. Is it surprising that there is so little in the books concerning trespass actions for violation of the search and seizure clause?

The conclusion is inescapable that but one remedy exists to deter violations of the search and seizure clause. That is the rule which excludes illegally obtained evidence. Only by exclusion can we impress upon the zealous prosecutor that violation of the Constitution will do him no good. And only when that point is driven home can the prosecutor be expected to emphasize the importance of observing constitutional demands in his instructions to the police....

I cannot believe that we should decide due process questions by simply taking a poll of the rules in various jurisdictions, even if we follow the Palko 'test.' Today's decision will do inestimable harm to the cause of fair police methods in our cities and states. Even more important, perhaps, it must have tragic effect upon public respect for our judiciary. For the Court now allows that is indeed shabby business: lawlessness by officers of the law. Since the evidence admitted was secured in violation of the Fourth Amendment, the judgment should be reversed.


... [A]lthough I think that all 'the specific guarantees of the Bill of Rights should be carried over intact into the first section of the Fourteenth Amendment,' ... I welcome the fact that the Court, in its slower progress toward this goal, today finds the substance of the Fourth Amendment 'to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment..., valid as against the states.' Palko v. Connecticut.

But I reject the Court's simultaneous conclusion that the mandate embodied in the Fourth Amendment, although binding on the states, does not carry with it the one sanction--exclusion of evidence taken in violation of the Amendment's terms--failure to observe which means that 'the protection of the 4th Amendment ... might as well be stricken from the Constitution.' Weeks v. United States. For I agree with my brother MURPHY's demonstration that the Amendment without the sanction is a dead letter.... [T]he version of the Fourth Amendment today heldapplicable to the states hardly rises to the dignity of a form of words; at best it is a pale and frayed carbon copy of the original, bearing little resemblance to the Amendment the fulfillment of whose command I had heretofore thought to be 'an indispensable need for a democratic society.' Harris v. United States....

... I ... think the conviction should be reversed.

MR. JUSTICE MURPHY joins in this opinion.