The 'Mere Evidence' Rule in Search and Seizure

AuthorBy Major Thomas H. Davis
Pages05

The entite field of search and seizure has received eon-siderable attention the lost few years. The author of this article discusses one aspect of this wea: the "mwe evidpnce" d e . He presents a stady and application of the rule, ineluding an analy,ais of its background anddevelopment, and its applicotion and limitation by the eou?.ts.

  1. INTRODUCTIOS

    To the average layman-and indeed to some lawyers-it would seem incredible to hear that items seized during a lawful search should be inadmissible during a criminal trial because they were merely evidence that the accused committed the offense charged. Should a television judge make such a ruling upon the motion of one of the legendary TV defense counsel, the audience would immediately feel that the script writer's literary license had been allowed to go too far. Yet, such a rule, defined in different language by different authorities, is a well established rule of evidence. Essentiiilly, the rule is, that during a search, items may not be seized from an individual "solely for use as evidence of crime."l

    A cursory look at the rule, then, would lead one to believe it to be almost totally exclusionary of all evidence secured during a search of an individual's effects. Aa ia to be expected with such a seemingly harsh exclusionan rule of evidence, its interpretation by the court8 has made it more realistic and workable than literal implementation would demand. Since the rule is that an item may not be seized merely for its evidentiary value. courts

    ' Thm artiele was adapted from B thesis presented to The Judge Advocate General's Sehml, US Army, Chnrlottewille, Yirglnia, while the ~uthor was Imember of the Fourteenth Career Course. The o~mmns and conclu. sims pmsented are tho- of the author and do not necebvlrily reprp8ep.t the views of The Sudce Advocate Gonerd's School or any other govern-

    *w 'lllS 101

    have found many reasons why the particular item may be seized other than far its evidentiary value. As will be discussed later, fruits of a crime, instrumentalities of a crime, contraband, and other elasses of items have been held seizable, regardless of the fact that they might also be evidence of an accused's guilt.

    Despite this judicial expansion of the rule prohibiting the seizure of mere evidence, problems still exist. The rule itself has been criticized, with some justificati0n.l There are also questions of how far the rule was actually intended to extend and to what types of evidence it should apply. Answers to these problems can only be undertaken after considering the circum-stances under which the rule originated and developed.

    11. BACKGROCSD

    .4. ORIGIS AXD APPAREST ORIGiSAL

    IYTESDED KSE

    In 1886 the United States Supreme Court had before it a case involving goods which had allegedly been imported without the required custom duty having been paid.j An information had been filed to forfeit the property in question, and, at the hearing, the government attorney offered certain invoices in evidence. These invoices has been obtained from the defendant by order of a district judge, parsuant to customs and revenue laws, which provided far the cornpul~ory production of books and papers related to the alleged offense far examination by the court. If they were not so produced. the allegations of the government attorney of what they contained would be confessed by the defendant.

    The Supreme Court equated forfeiture of goods to a criminal hearing and proceeded to an examination of the Fourth and Fifth Amendments of the L'nited States Constitution as they applied to the defendant's invoices. While no actual search and seizure was involved, the Court found that compulsory production of B man's private papers was equivalent to a search and seizure and that the Fourth Amendment was applicable. Having so decided, the Court undertook to determine whether the compulsory production in this case was reasonable within the meaning of that amendment. The Court noted same objects of reasonable

    ' 8 WIDMORE, EVIDENCE, $5 218344b, 2264 (MeXaughtan ed. 1961); Corn.

    'Boyd V. Cnited Statea, 116 US. 616 (1886)

    merit, 31 YALE L. J. 618, 622 (1822).

    A00 6iBIB

    MERE EVIDENCE RULE

    seizure-stolen or forfeited goods, goods liable for duty, entries in books required to be kept by law, contraband, and goods subject to attachment'-and pointed out that extorting from a person his private books and papers was dissimilar from any of these objects and was, consequently, unreasonable.

    The Court quoted at length fmm the English case of Entiek 8. Carvington,l which condemned issuance of general search warrants to seize private papers. Entiek, however, was more concerned with the sanctity of private papers than with whether seized items had other than evidentiary value, as can be seen from the following quotation: "Papers are the ownerk goods and chattels: they are his dearest property: and are so far fmm enduring a seizure, that they will hardly bear an inspection. . . ."

    The Supreme Court concluded that the compulsory production of the defendant's invoices was unconstitutional in the following

    Breaking into I house and opening bxen and drawern are Eireumstanees of aggravation; hut any loreibie and eampulaory extortion of B man's own testimony 01 of his private papers to be used as evidence to convict h m of enme or to forfelt hia goods, is within the condemnatam of that [Enttck Y. Cadnglon] judgment. In this regard the Fourth and Fifth Amendment. mn almoet into each other.

    language:

    And any c~mpuls(l~ydiscovery by extorting the party's oath, or compelling the praduetion of his private boks and papers, to eonviet him of enme, or to forieit his property, io contrary to the principles of P free government. . . .

    And we have been unable to perceive that the seizure of a man's Private bwks and papers to be used in evidence against him is substantially different from compelling him to be B witness against himself. . . ./

    It is considered important that the actual language of Bozld be set out and be analyzed. because it is from this that the rule against seizure of merely evidentiary material has evolved. It should be readily apparent that had no reference been made to the Fourth Amendment, aid had the holding been limited to the efffed of the compulsory production of the papers on the Fifth Amendment, the result would have been the same. The language quoted above makes it evident that the Court recognized that the constitutional protection which had been denied the defendant

    . . . .

    wae his right against self-incrimination. In so holding, it was not necessan far the Court to determine whether it was reasonable to seize an individual's private papers, so perhaps the difficulties which have developed can be traced back to the author-judge's use of a search and seizure method in the solution of a self-incrimination problem. While it is true that under his approach, the Fourth and Fifth Amendments do tend to overlap, such an approach appears to be mere dicta in view of the actual basis for the decision of the case.

    Nevertheless, giving full credit to all that was said in Boyd regarding the reasonabieness of the "search and seizure" there involved, it would seem that the case could only be authority far the proposition that when property seized is of such a nature that its production in evidence would amount to a denial of its owner's right against self-incrimination, then, and only then, should the seizure be considered unreasonable and the material excluded. Necessarily, the type of property prohibited under such a rule would be limited to such items as diaries, incriminating letters. and other personally prepared writings or objects of an incriminating nature. It would seem that there was no intent by the Court in Boyd to carry the seizure limitation any further. It will be seen, however, that the language in Boyd has been found to stand for much more.

    B DEVELOPMENT AKD EXPAMSIOK BY

    JUDICIAL ACTI0.V

    Within two years after Boyd, the special protection afforded private books and papers was re-emphasized;' however, in some circles, Boyd's binding effect as to searches and seizures was felt to be minimal.s In 1904 the question of the seizure of private papers was again before the Supreme Court in a case where a police raid pursuant to a warrant for gambling paraphernalia produced policy slips and also private papers showing the accused's knowledge about the policy slips.'o The Court limited Boyd to its facts, swing that if self-incrimination was not

    'See In the Matter of the Pae. Ry. Comm'n, 32 Fed. 241 1C.C.N.D. Cal.

    1887).

    in eREt, that Boyd, whrie furnishing sn able diaeuaaion of the right againat urnamable search and iemre, was only authority far the fact that anaccused cannot be compelled to testily against himself in violation of the Fifth Amendment- "Adam Y. New Yark, 192 U.S. 685 (1904).

    A 0 0 61818

    MERE EVIDENCE RULE

    involved, papers could be seized during a search for instruments of a crime. It thus appeared that the Court u~ould be reluctant to extend Boyd and that the ease would retain its importance ina rather limited area.

    Such a conclusion was not dispelled by Wilson 9. United States" which held corporate books to be without the protection of the Fourth and Fifth Amendments, even though material therein might have incriminated the corporate officers. The Court reasoned that corporate books sere not the property of the corporate officers: therefore, requiring the officers to produce the books would not involve a seach or seizure of them or their property. While the officen could not be required to testify about the books or their contents, the production of the books was not found to be within the protection of the self-incrimination prohibition.

    A change of direction on the part of the Court soon became evident, however, and subsequent decisions indicated an intent to look closely before finding a questionable search...

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