Searching Decision

Bewigged and impassioned, Statesman James Otis rose in a Boston court 189 years ago last month, and in a speech all but lost to history delivered a ringing argument against the Crown's infamous writs of assistance authorizing unlimited search & seizure. "Then and there." wrote John Adams, "the child Independence was born."

Last week, in a 5-3 decision which dissenting Justice Felix Frankfurter said "makes a mockery" of the Fourth Amendment, the Supreme Court held that officers engaged in lawful arrest may search premises without a search warrant.. Justice Sherman ("Shay") Minton, newest member of the nation's highest tribunal, wrote the majority opinion, his first important one. Former Attorney General Robert H. Jackson joined Frankfurter in a biting dissent, and Hugo Black wrote a separate dissenting opinion.

Justice Alarmed. It was a clear victory for the Department of Justice, which had felt itself hampered under existing search & seizure laws. Frankfurter in his dissent was alarmed at the way the majority decision upset a principle reaffirmed as recently as two years ago, before the two new Truman appointees, Minton and ex-Attorney General Tom Clark, reached the bench. Frankfurter read his freshman colleagues a cutting lecture:

"Respect for continuity in law, where reasons for change are wanting, alone requires adherence to ... other decisions. Especially ought the Court not to reenforce the instabilities of our day by giving fair ground for the belief that law is the expression of chance--for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors."

Squalid Defrauder. The case itself concerned one Albert Rabinowitz--"a squalid little defrauder," Frankfurter called him --who was arrested on a warrant charging him with counterfeiting postage stamps. He was picked up in his one-room Manhattan office, which the arresting U.S. Treasury officers promptly searched. The majority opinion rested on the contention that the search & seizure of stamps as evidence were incidental to a valid arrest and did not extend beyond the room used for unlawful purposes.

But, asked Frankfurter, "what rational line can be drawn short of searching as many rooms as arresting officers may deem appropriate . . .?

"The right to search an arrested person and to take the stuff on top of the desk at which he sits has a justification of necessity which does not eat away the great principle of the Fourth Amendment. But to assume that this exception of a search incidental to arrest permits a freehanded search without warrant is to subvert the purposes of the Fourth Amendment by making the exception displace the principle ... By the Bill of Rights, the founders of this country subordinated police action to legal restraints not in order to convenience the guilty but to protect the innocent . . . They knew too well that the successful prosecution of the guilty does not require jeopardy to the innocent . . . The progress is too easy from police action unscrutinized by judicial authorization to the police state."

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