Mancusi v. DeForte/Dissent Black

by Hugo Black

United States Supreme Court

392 U.S. 364

Mancusi  v.  DeForte

 Argued: April 25, 1968. --- Decided: June 17, 1968

Mr. Justice BLACK, with whom Mr. Justice STEWART joins, dissenting.

Until this case was decided just now it has been the law in this country, since the federal Fourth Amendment exclusionary rule was adopted in 1914, that a defendant on trial for a crime has no standing or substantive right to object to the use of papers and documents against him on the ground that those papers, belonging to someone else, had been taken from the owner in violation of the Fourth Amendment. Heretofore successful objection to use of such papers as evidence has been left to the owner whose constitutional rights had been invaded. In Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, decided in 1911, this Court is an exhaustive opinion by Mr. Justice Hughes, later Chief Justice, applied that principle by denying the benefit of the Fourth and Fifth Amendments to a corporate officer, even one who had helped to prepare the corporate papers summoned to be produced. ^[1] In United States v. White, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, decided in 1944, this Court applied the same principle in rejecting a claim of a union officer that the use of union papers and documents against him under a subpoena duces tecum would incriminate him. And indeed the Court in today creating its new rule is unable to cite a single previous opinion of this Court holding to the contrary.

In creating this new rule against the use of papers and documents which speak truthfully for themselves, the Court is putting up new hurdles and barriers bound to save many criminals from conviction. I should not object to this new rule, however, if I thought it was or could be justified by the Fourth or any other constitutional amendment. But I do not think it can. The exclusionary rule itself, even as it applies to the exclusion of the defendant's own property when illegally seized, has had only a precarious tenure in this Court. See Adams v. People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575 (1904); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); and my concurring opinion in Mapp v. State of Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 1694 (1961). I wish to repeat here what I have indicated before, that this seems to me a rather inopportune time to create a single rule more than the Constitution plainly requires to block conviction of guilty persons by keeping out probably the most reliable kind of evidence that can be offered.

A corporate or union official suffers no personal injury when the business office he occupies as an agent of the corporation or union is invaded and when records he has prepared and safeguarded as an agent are seized. The invasion by the Government may disrupt the functioning of the office, prevent employees from performing their duties, and result in disclosure of business matters the company or union wished to keep secret. But all these are injuries only to the corporation or union as such. The organization has every right to challenge such intrusions whenever they occur-if the seizure is illegal, the records obtained can be suppressed in a prosecution against the organization, and if no prosecution is initiated, the organization can obtain return of all the documents by bringing a civil action. See, e.g., Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153 (1931). Such intrusions, however, involve absolutely no invasion of the 'personal privacy' or security of the agent or employee as an individual, and he accordingly has no right to seek suppression of records that the corporation or union itself has made no effort to regain.

The cases decided by this Court have, until today, uniformly supported this view and rejected the sweeping new exclusionary rule now advanced by the Court. Nor in my judgment does any one of the cases relied on by the Court provide support for its holding. The Court's basic premise is that if the union papers had been taken directly from a desk used by DeForte in a union office used only by him, his standing would have been clear, without regard to any other circumstances. I have found no past decision by this Court to that effect. Neither Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182 (1920), nor Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153 (1931), mentions the question of standing at all, and it is hard to see how the Court's inference can be drawn from these cases since in both the party seeking suppression of the documents was in fact the owner of them. Although in Silverthorne the objections had been raised by both the corporation and one of its officers, standing was never even mentioned from the beginning to the end of the opinion, and the Court treated both parties as the 'owners' of the documents. 251 U.S., at 391, 40 S.Ct. 182. Consequently, the Court's use of Mr. Justice Holmes' reference to 'outrage' in no way supports the Court's holding today, directly or indirectly.

Jones v. United States, 362 U.S. 257, 80 S.Ct. 725 (1960), also fails to sustain the Court's position. In that case the petitioner had been arrested in a friend's apartment and was charged with possession of narcotics found there. This Court was troubled about the 'dilemma' that would be created by requiring the petitioner, in order to secure suppression of the narcotics, to swear that they were taken from his possession, thus confessing his guilt of the very offense charged against him. To avoid this situation the Court held that petitioner could make his motion to suppress without swearing to possession, either because of the dilemma itself or because as a guest in the apartment he had the 'legally requisite interest in the premises.' 362 U.S., at 263, 80 S.Ct., at 732. The Court today puts great stress on the statement in Jones that 'anyone legitimately on premises where a search occurs may challenge its legality * * * when its fruits are proposed to be used against him.' 362 U.S., at 267, 80 S.Ct., at 734. With deference I must point out that this sweeping dictum is taken somewhat out of context and cannot possibly have the literal meaning attributed to it. It would be quite a hyperbole, I think, to say that the Jones opinion suggested that just any person who happened to be in a house against which an unreasonable search was perpetrated could ask to have all evidence obtained by that search excluded from evidence against him. As was asked by the court below, would that dictum enable a janitor to escape the use of evidence illegally seized from his boss? The Court apparently recognizes this problem even now, for DeForte clearly was 'legitimately on (the) premises' and thus his standing should be obvious, under its reading of Jones, without the Court's extended discussion of 'reasonable expectation' and the related limiting tests. This reasoning in terms of 'expectations,' however, requires conferring standing without regard to whether the agent happens to be present at the time of the search or not, a rather remarkable consequence of the statement in Jones. In fact the Court's opinion indicates to me that the Court is preparing the way to use Jones to eliminate entirely the requirement for standing to raise a search and seizure question and to permit a search to be challenged at any time, at any place, and under all circumstances, regardless of the defendant's relationship to the person or place searched or to the things seized. Any such step would elevate the Fourth Amendment to a position of importance far above that of any other constitutional provision, compare Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 and would make it more difficult for the Government to convict guilty persons who can make no claim to redress in any form since they suffered no invasion of any kind by the search itself. I would prefer to return to Jones itself, where we made quite clear throughout the opinion that while common-law concepts of property ownership were not controlling, standing was not automatically conferred on 'anyone legitimately on (the) premises.' We stressed:

'In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' 362 U.S., at 261, 80 S.Ct., at 731.

In the present case I think it is entirely clear that the search was not 'directed' against DeForte personally, but was addressed to and aimed at the Union and designed to secure from the Union papers belonging to the Union. The search occurred in a large room, which DeForte shared with a number of others, and the records were not taken from files and drawers used exclusively by him for his own private purposes. The police had been investigation a large conspiracy perpetrated through the Union and at the time were primarily interested in getting more information about the operation of the Union. The records taken were those that had been listed in a subpoena addressed to the Union itself, and since the Union had raised no objection to the subpoena, it was under a duty to turn over the records. Compare Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370 (1906).

Undoubtedly, I suppose, even if the Union's papers here should be returned either to the Union or to the defendant, the State could, on a new trial, summon the papers and get them and use them. ^[2] A rule which encourages such circumvention as that is hardly the kind of principle to which this great Court should give birth. I disclaim any responsibility whatever for the new rule.

Notes

1. See also Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913); Essgee Co. of China v. United States, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917 (1923); Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (1942); Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256 (1946); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Wild v. Brewer, 329 F.2d 924 (C.A.9th Cir. 1964).
2. Since the State had obtained a subpoena for these documents even before the search, the new subpoena would not be an invalid 'fruit' of the illegal seizure. Compare Silverthorne, supra.