concurring.
Though I have joined the opinion of the Court, I add a few words. This criminal proceeding started with a lawless search and seizure. The police entered a home forcefully, and seized documents that were later used to convict the occupant of a crime.
She lives alone with her fifteen-year-old daughter in the second floor flat of a duplex in Cleveland. At about 1:30 in the afternoon of May 23, 1957, three policemen arrived at this house. They rang the bell, and the appellant, appearing at her window, asked them what they wanted. According to their later testimony, the policemen had come to the house on information from “a confidential source that there was a person hiding out in the home, who was wanted for questioning and in connection with a recent bombing.”1 To the appellant’s question, however, they replied only that they wanted to question her and would not state the subject about which they wanted to talk.
The appellant, who had retained an attorney in connection with a pending civil matter, told the police she would call him to ask if she should let them in. On her attorney’s advice, she *533told them she would let them in only when they produced a valid search warrant. For the next two and a half hours, the police laid siege to the house. At four o’clock, their number was increased to at least seven. Appellant’s lawyer appeared on the scene; and one of the policemen told him that they now had a search warrant, but the officer refused to show it. Instead, going to the back door, the officer first tried to kick it in and, when that proved unsuccessful, he broke the glass in the door and opened it from the inside.
The appellant, who was on the steps going up to her flat, demanded to see the search warrant; but the officer refused to let her see it although he waved a paper in front of her face. She grabbed it and thrust it down the front of her dress. The policemen seized her, took the paper from her, and had her handcuffed to another officer. She was taken upstairs, thus bound, and into the larger of the two bedrooms in the apartment; there she was forced to sit on the bed. Meanwhile, the officers entered the house and made a complete search of the four rooms of her flat and of the basement of the house.
The testimony concerning the search is largely noncon-flicting. The approach of the officers; their long wait outside the home, watching all its doors; the arrival of reinforcements armed with a paper;2 breaking into the house; putting their hands on appellant and handcuffing her; numerous officers ransacking through every room and piece of furniture, while the appellant sat, a prisoner in her own bedroom. There is direct conflict in the testimony, however, as to where the evidence which is the basis of this case was found. To understand the meaning of that conflict, one must understand that this case is based on the knowing possession3 of four little pamphlets, a couple *534of photographs and a little pencil doodle — all of which are alleged to be pornographic.
According to the police officers who participated in the search, these articles were found, some in appellant’s dressers and some in a suitcase found by her bed. According to appellant, most of the articles were found in a cardboard box in the basement; one in the suitcase beside her bed. All of this material, appellant — and a friend of hers — said were odds and ends belonging to a recent boarder, a man who had left suddenly for New York and had been detained there. As the Supreme Court of Ohio read the statute under which appellant is charged, she is guilty of the crime whichever story is true.
The Ohio Supreme Court sustained the conviction even though it was based on the documents obtained in the lawless search. For in Ohio evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution at least where it was not taken from the “defendant’s person by the use of brutal or offensive force against defendant.” State v. Mapp, 170 Ohio St., 427, syllabus 2; State v. Lindway, 131 Ohio St., 166. This evidence would have been inadmissible in a federal prosecution. Weeks v. United States, 232 U. S., 383; Elkins v. United States, 364 U. S., 206. For, as stated in the former decision, “The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints. ...” Id., 391-392. It was therefore held that evidence obtained (which in that case was documents and correspondence) from a home without any warrant was not admissible in a federal prosecution.
We held in Wolf v. Colorado, 338 U. S., 25, that the Fourth Amendment was applicable to the states by reason of the Due Process Clause of the Fourteenth Amendment. But a majority held that the exclusionary rule of the Weeks case was not required of the States, that they could apply such sanctions as *535they chose. That position had the necessary votes to carry the day. But with all respect it was not the voice of reason or principle.
As stated in the Weeks case, if evidence seized in violation of the Fourth Amendment can be used against an accused “his right to be secure against such searches and seizures is of no value, and ... might as well be stricken from the Constitution. ’ ’ 232 U. S., at 393.
"When we allowed States to give constitutional sanction to the “shabby business” of unlawful entry into a home (to use an expression of Mr. Justice Murphy, Wolf v. Colorado, at 46), we did indeed rob the Fourth Amendment of much meaningful force. There are, of course, other theoretical remedies. One is disciplinary action within the hierarchy of the police system, including prosecution of the police officer for a crime. But as Mr. Justice Murphy said in Wolf v. Colorado, at 42, “ 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.”
The only remaining remedy, if exclusion of the evidence is not required, is an action of trespass by the homeowner against the offending officer. Mr. Justice Murphy showed how onerous and difficult it would be for the citizen to maintain that action and how meagre the relief even if the citizen prevails. 338 U. S., 42-44. The truth is that trespass actions against officers who make unlawful searches and seizures are mainly illusory remedies.
Without judicial action making the exclusionary rule applicable to the States, Wolf v. Colorado in practical effect reduced the guarantee against unreasonable searches and seizures to “a dead letter,” as Mr. Justice Rutledge said in his dissent. See 338 U. S., at 47.
Wolf v. Colorado, supra, was decided in 1949. The immediate result was a storm of constitutional controversy which only today finds its end. I believe that this is an appropriate case in which to put an end to the asymmetry which Wolf imported into the law. See Stefanelli v. Minard, 342 U. S., 117; Rea v, United Slates, 350 U. S., 214; Elkins v, United States, *536supra; Monroe v. Pape, 365 U. S., 167. It is an appropriate case because the facts it presents show — as would few other cases— the casual arrogance of those who have the untram-melled power to invade one’s home and to seize one’s person.
It is also an appropriate case in the narrower and more technical sense. The issues of the illegality of the search and the admissibility of the evidence have been presented to the state court and were duly raised here in accordance with the applicable Rule of Practice.4 The question was raised in the notice of appeal, the jurisdictional statement and in appellant’s brief on the merits.5 It is true that argument was mostly directed to another issue in the case, but that is often the fact. See Rogers v. Richmond, 365 U. S., 534, 535-540. Of course, an earnest advocate of a position always believes that, had he only an additional opportunity for argument, his side would win. But, subject to the sound discretion of a court, all argument must at last come to a halt. This is especially so as to an issue about which this Court said last year that “The arguments of its antagonists and of its proponents have been so many times marshalled as to require no lengthy elaboration here.” Elkins v. United States, supra, 216.
Moreover, continuance of Wolf v. Colorado in its full vigor breeds the unseemly shopping around of the kind revealed in Wilson v. Schnettler, 365 U. S., 381. Once evidence, inadmissible in a federal court, is admissible in a state court a “double standard” exists which, as the Court points out, leads to “working arrangements” that undercut federal policy and reduce some aspects of law enforcement to shabby business. The rule that supports that practice does not have the force of reason behind it.
Memorandum of Mr. Justice Stewart.Agreeing fully with Part I of Mr. Justice Harlan’s dis*537senting opinion, I express no view as to the merits of the constitutional issue which the Court today decides. I ;would, however, reverse the judgment in this case, because I am persuaded that the provision of Section 2905.34, Revised Code, upon which the petitioner’s conviction was based, is, in the words of Me. Justice Harlan, not “consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.”
Mr. Justice Harlan, whom Mr. Justice Frankfurter and Mr. Justice Whittaker join, dissenting.In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled. Apart from that I also believe that the Wolf rule represents sounder Constitutional doctrine than the new rule which now replaces it.
I.
From the Court’s statement of the case one would gather that the central, if not controlling, issue on this appeal is whether illegally state-seized evidence is Constitutionally admissible in a state prosecution, an issue which would of course face us with the need for re-examining Wolf. However, such is not the situation. For, although that question was indeed raised here and below among appellant’s subordinate points, the new and pivotal issue brought to the Court by this appeal is whether Section 2905.34, Revised Code, making criminal the mere knowing possession or control of obscene material,1 and under which appellant has been convicted, is consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment.2 That was the principal issue which was decided by the Ohio Supreme Court,3 *538which was tendered by appellant’s Jurisdictional Statement4 and which was briefed5 and argued6 in this Court.
In this posture of things, I think it fair to say that five members of this Court have simply “reached out” to overrule Wolf. With all respect for the views of the majority, and recognizing that stare decisis carries different weight in Constitutional adjudication than it does in nonconstitutional decision, 1 can perceive no justification for regarding this case as an appropriate occasion for re-examining Wolf.
The action of the Court finds no support in the rule that decision of Constitutional issues should be avoided wherever *539possible. For in overruling Wolf the Court, instead of passing upon the validity of Ohio’s Section 2905.34, Bevised Code, has simply chosen between two Constitutional questions. Moreover, I submit that it has chosen the more difficult and less appropriate of the two questions. The Ohio statute which, as construed by the State Supreme Court, punishes knowing possession or control of obscene material, irrespective of the purposes of such possession or control (with exceptions not here applicable)7 and irrespective of whether the accused had any *540reasonable opportunity to rid himself of the material after discovering that it was obscene,8 surely presents a constitutional question which is both simpler and less far-reaching than the question which the Court decides today. It seems to me that justice might well have been done in this case without overturning a decision on which the administration of criminal law in many of the States has long justifiably relied.
Since the demands of the case before us do not require us to reach the question of the validity of Wolf, I think this case furnishes a singularly inappropriate occasion for reconsideration of that decision, if reconsideration is indeed warranted. Even the most cursory examination will reveal that the doctrine of the Wolf case has been of continuing importance in the administration of state criminal law. Indeed, certainly as regards its “nonexclusionary” aspect, Wolf did no more than articulate the then existing assumption among the States that the federal cases enforcing the exclusionary rule “do not bind [the States], for they construe provisions of the Federal Constitution, the Fourth and Fifth Amendments, not applicable to the States.” People v. Defore, 242 N. Y., 13, 20. Though, of course, not reflecting the full measure of this continuing reliance, I find that during the last three Terms, for instance, the issue of the inadmissibility of illegally state-obtained evidence appears on an average of about fifteen times per Term just in the in forma pauperis cases summarily disposed of by us. This would indicate both that the issue which is now being decided may well have untoward practical ramifications respecting state cases long since disposed of in reliance on Wolf, and that were we determined to re-examine that doctrine we would not lack future opportunity.
The occasion which the Court has taken here is in the context of a case where the question was briefed not at all and argued only extremely tangentially. The unwisdom of overruling Wolf without full-dress argument is aggravated by the circumstance that that decision is a comparatively recent one *541(1949) to which three members of the present majority have at one time or other expressly subscribed, one to be sure with explicit misgivings.9 I would think that our obligation to the States, on whom we impose this new rule, as well- as the obligation of orderly adherence to our own processes would demand that we seek that aid which adequate briefing and argument lends to the determination of an important issue. It certainly has never been a postulate of judicial power that mere altered disposition, or subsequent membership on the Court, is sufficient wairant for overturning a deliberately decided rule of Constitutional law.
Thus, if the Court was bent on reconsidering Wolf, I think that there would soon have presented itself an appropriate opportunity in which we could have had the benefit of full briefing and argument. In any event, at the very least, the present case should have been set down for reargument, in view of the inadequate briefing and argument we have received on the Wolf point. To all intents and purposes the Court’s present action amounts to a summary reversal of Wolf, without argument.
I am bound to say that what has been done is not likely to promote respect either for the Court’s adjudicatory process or for the stability of its decisions. Having been unable, however, to persuade any of the majority to a different procedural course, I now turn to the merits of the present decision.
II.
Essential to the majority’s argument against Wolf is the proposition that the rule of Weeks v. United States, 232 U. S., 383, excluding in federal criminal trials the use of evidence obtained in violation of the Fourth Amendment, derives not from the “supervisory power” of this Court over the federal judicial system, but from Constitutional requirement. This is so because no one, I suppose, would suggest that this Court *542possesses any general supervisory power over the state courts. Although I entertain considerable doubt as to the soundness of this foundational proposition of the majority, cf. Wolf v. Colorado, 338 U. S., at 39-40 (concurring opinion), I shall assume, for present purposes, that the Weeks rule “is of constitutional origin.”
At the heart of the majority’s opinion in this case is the following syllogism: (1) the rule excluding in federal criminal trials evidence which is the product of an illegal search and seizure is a “part and parcel” of the Fourth Amendment; (2) Wolf held that the “privacy” assured against federal action by the Fourth Amendment is also protected against state action by the Fourteenth Amendment; and (3) it is therefore “logically and constitutionally necessary” that the Weeks exclusionary rule should also be enforced against the States.10
This reasoning ultimately rests on the unsound premise that because Wolf carried into the States, as part of “the concept of ordered liberty” embodied in the Fourteenth Amendment, the principle of “privacy” underlying the Fourth Amendment (338 U. S., at 27), it must follow that whatever configurations of the Fourth Amendment have been developed in the particularizing federal precedents are likewise to be deemed a part of “ordered liberty,” and as such are enforceable against the States. For me, this does not follow at all.
It cannot be too much emphasized that what was recognized in Wolf was not that the Fourth Amendment as such is enforceable against the States as a facet of due process, a view of the Fourteenth Amendment which, as Wolf itself pointed out (338 U. S., at 26), has long since been discredited, but the principle of privacy “which is at the core of the Fourth Amendment.” (Id., at 27.) It would not be proper to expect or impose any precise equivalence, either as regards the scope of the right or the means of its implementation, between the requirements of the Fourth and Fourteenth Amendments. For the Fourth, unlike what was said in Wolf of the Fourteenth, does not state a general principle only; it is a particular command, having its setting in a pre-existing legal context on *543which both interpreting decisions and enabling ,• statutes must; at least build.
Thus, even in a case which presented simply the question of whether a particular search and seizure was constitutionally “unreasonable” — say in a tort action against state officers — we would not be true to the Fourteenth Amendment were we merely to stretch the general principle of individual privacy on a Procrustean bed of federal precedents under the Fourth Amendment. But in this instance more than that is involved, for here we are reviewing not a determination that what the state police did was constitutionally permissible (since the state court quite evidently assumed that it was not), but a determination, that appellant was properly found guilty of conduct which, for present purposes, it is to be assumed the State could constitutionally punish. Since there is not the slightest suggestion that Ohio’s policy is “affirmatively to sanction . . . police incursion into privacy” (338 U. S., at 28), compare Marcus v. Property Search Warrant, U. S., , what the Court is now doing is to impose upon the States not only federal substantive standards of “search and seizure” but also the basic federal remedy, for violation of those standards. For I think it entirely clear that the Weeks exclusionary rule is but a remedy which,'by penalizing past official misconduct, is aimed at deterring such conduct in the future.
I would not impose upon the States this federal exclusionary remedy. The reasons given by the majority for now sudr; denly turning its back on Wolf seem to me notably unconvincing.
First, it is said that “the factual grounds upon which Wolf was based” have since changed, in that more States now follow the Weeks exclusionary rule than was so at the time Wolf was decided. While that is true, a recent survey indicates that, at present one half of the States still adhere to the common-law non-exclusionary rule, and one, Maryland, retains the rule as to felonies. Berman and Oberst, Admissibility of Evidence by an Unconstitutional Search and Seizure, 55 N. W. L. Rev., 525, 532-533. But in any case surely all this is beside the point, as the majority itself indeed seems to recognize. Our concern here, as it was in Wolf, is not with the desirability of that rule but only with the question whether the States are Constitu*544tionally free to follow it or not as they may themselves determine, and the relevance of the disparity of views among the-States on this point lies simply in the fact that the judgment involved is a debatable one. Moreover, the very fact on which the majority relies, instead of lending support to what is now being done, points away from the need of replacing voluntary state action with federal compulsion.
The preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster among the States in this respect. Problems of criminal law enforcement vary widely from State to State. One State, in considering the totality of its legal picture, may conclude that the need for embracing the Weeks rule is pressing because other remedies are unavailable or inadequate to secure compliance with the substantive Constitutional principle involved. Another, though equally solicitous of Constitutional rights, may choose to pursue one purpose at a time, allowing , all evidence relevant to guilt to be brought into a criminal trial, and dealing with Constitutional infractions by other means. Still another may consider the exclusionary rule too rough and ready a remedy, in that it reaches only unconstitutional intrusions which eventuate in criminal prosecution of the victims. Further, a State after experimenting with the Weeks rule for a time may, because of unsatisfactory experience with it, decide to revert to a nonexclusionary rule. And so on. From the standpoint of Constitutional permissibility in pointing a State in one direction or another, I do not see at all why “time has set its face against” the considerations which led Mr. Justice Cardozo, then chief judge of the New York Court of Appeals, to reject for New York in People v. Defore, 242 N. Y., 13, the Weeks exclusionary rule. For us the question remains, as it has always been, one of state power, not one of passing judgment on the wisdom of one state course or another. In my view this Court should continue to forebear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement.
*545Further, we are told that imposition of the Weeks rule on the States, makes “very good sense,” in that it will promote recognition by state and federal officials of their “mutual obligation to respect the same fundamental criteria” in their approach to law enforcement, and will avoid “ ‘needless conflict between state and federal courts.’ ” Indeed the majority now finds an incongruity in Wolf’s discriminating perception between the demands of “ordered liberty” as respects the basic right of “privacy” and the means of securing it among the States. That perception, resting both on a sensitive regard for our federal system and a sound recognition of this Court’s remoteness from particular state problems, is for me the strength of that decision.
An approach which regards the issue as one of achieving procedural symmetry or of serving administrative convenience surely disfigures the boundaries of this Court’s functions in relation to the state and federal courts. Our role in promulgating the Weeks rule and its extensions in such cases as Rea, Elkins, and Rios11 was quite a different one than it is here. There, in implementing the Fourth Amendment, we occupied the position of a tribunal having the ultimate responsibility for developing the standards and procedures of judicial administration within the judicial system over which it presides. Here we review State procedures whose measure is to be taken not against the specific substantive commands of the Fourth Amendment but under the flexible contours of the Due Process Clause. I do not believe that the Fourteenth Amendment empowers this Court to mould state remedies effectuating the right to freedom from “arbitrary intrusion by the police” to suit its own notions of how things should be done, as, for instance the California Supreme Court did in People v. Cahan, 44 Cal. 2d, 434, with reference to procedures in the California courts or as this Court did in Weeks for the lower federal courts.
A state conviction comes to us as the complete product of a sovereign judicial system. Typically a case will have been tried in a trial court, tested in some final appellate court, and *546will go no further. In the comparatively rare instance when a conviction is reviewed by us on due process grounds we deal then with a finished product in the creation of which we are allowed no hand, and our task, far from being one of overall supervision, is, speaking generally, restricted to a determination of whether the prosecution was constitutionally fair. The specifics of trial procedure, which in every mature legal system will vary greatly in detail, are within the sole competence of the States. I do not see how it can be said that a trial becomes unfair simply because a State determines that evidence may be considered by the trier of fact, regardless of how it was obtained, if it is relevant to the one issue with which the trial is concerned, the guilt or innocence of the accused. Of course, a court may use its procedures as an incidental means of pursuing other ends than the correct resolution of the controversies before it. Such indeed is the Weeks rule, but if a State does not choose to use its courts in this way, I do not believe that this Court is empowered to impose this much-debated procedure on local courts, however efficacious we may consider the Weeks rule to be as a means of securing Constitutional rights.
Finally, it is said that the overruling of Wolf is supported by the established doctrine that the admission in evidence of an involuntary confession renders a state conviction constitutionally invalid. Since such a confession may often be entirely reliable, and therefore of the greatest relevance to the issue of the trial, the argument continues, this doctrine is ample warrant in precedent that the way evidence was obtained, and not just its relevance, is constitutionally significant to the fairness of a trial. I believe this analogy is not a true one. The “coerced confession” rule is certainly not a rule that any illegally obtained statements may not be used in evidence. I would suppose that a statement which is procured during a period of illegal detention, McNcibb v. United States, 318 U. S., 332, is, as much as unlawfully seized evidence, illegally obtained, but this Court has consistently refused to reverse state convictions resting on the use of such statements. Indeed it would seem the Court laid at rest the very argument now made by the majority when in Lisenba v. California, 314 U. S., 219, a state coerced confession case, it said (at 235):
“it may be assumed that [the] treatment of the petitioner *547[by tbe police] . . . deprived him of his liberty without due process and that the petitioner would have been afforded preventive relief if he could have gained access to a court to seek it.
“But illegal acts, as such, committed in the course of obtaining a confession ... do not furnish an answer to the constitutional question we must decide. . . . The gravamen of his complaint is the unfairness of the use of his confessions, and what occurred in their procurement is relevant only as it bears on that issue.” (Emphasis supplied.)
The point, then, must be that in requiring exclusion of an involuntary statement of an accused, we are concerned not with an appropriate remedy for what the police have done, but with something which is regarded as going to the heart of our concepts of fairness in judicial procedure. The operative assumption of our procedural system is that “ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the continent whereby the accused was interrogated for hours on end.” Watts v. Indiana, 338 U. S., 49, 54. See Rogers v. Richmond, 365 U. S., 534, 541. The pressures brought to bear against an accused leading to a confession, unlike an unconstitutional violation of privacy, do not, apart from the use of the confession at trial, necessarily involve independent Constitutional violations. What is crucial is that the trial defense to which an accused is entitled should not be rendered an empty formality by reason of statements wrung from him, for then “a prisoner . . . [has been] made the deluded instrument of his own conviction.” 2 Hawkins, Pleas of the Crown (8th ed., 1824), c. 46, §34. That this is a procedural right, and that its violation occurs at the time his improperly obtained statement is admitted at trial, is manifest. For without this right all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police.
This, and not the disciplining of the police, as with illegally seized evidence, is surely the true basis for excluding a state*548ment of tbe accused which was unconstitutionally obtained. In sum, I think the coerced confession analogy works strongly against what the Court does today.
In conclusion, it should be noted that the majority opinion in this case is in fact an opinion only for the judgment overruling Wolf, and not for the basic rationale by which four members of the majority have reached that result. For my Brother Black is unwilling to subscribe to their view that the Weeks exclusionary rule derives from the Fourth Amendment itself (see ante, p. ), but joins the majority opinion on the premise that its end result can be achieved by bringing the Fifth Amendment to the aid of the Fourth (see ante, p. ).,12 On that score I need only say that whatever the validity of the “Fourth-Fifth Amendment” correlation which the Boyd case (116 U. S., 616) found, see 8 Wigmore, Evidence (3d ed. 1940), §2184, we have only very recently again reiterated the long established doctrine of this Court that the Fifth Amendment privilege against self-incrimination is not applicable to the States. See Cohen v. Hurley, U. S.
I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.
. This “confidential source” told the police, in the same breath, that “there was a large amount of policy paraphernalia being hidden in- the home.”
. The purported warrant has disappeared from the case. The State made no attempt to prove its existence, issuance or contents, either at the trial or on the hearing of a preliminary motion to suppress. The Supreme Court of Ohio said: “There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant’s home. . . . Admittedly . . . there was no warrant authorizing a search . . . for any ‘lewd, lascivious book . . . print, [or] picture.’ ” 170 Ohio St., 427, 430, 166 N. E. 2d, 387, 389. (Emphasis added.)
. Ohio Rev. Code, §2905.35: “No person shall knowingly . . . have in his possession or under his control an obscene, lewd, or lascivious book, *534magazine, pamphlet, paper, writing, advertisement, circular, print, picture . . . or drawing ... of an indecent or immoral nature. . . . Whoever violates this section shall be fined not less than two hundred dollars nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.”
. “The notice of appeal . . . shall set forth the questions presented by the appeal. . . . Only the questions set forth in the notice of appeal or fairly comprised therein will be considered by the court.” Rule 10(2) (c), Rules of the Supreme Court of the United States.
. “Did the conduct of the police in procuring the books, papers and pictures placed in evidence by the Prosecution violate Amendment IV, Amendment V, and Amendment XIV Section 1 of the United States Constitution . . .?”
. The material parts of that law are quoted in Note 1 of the Court’s opinion. Ante, p.
. In its Note 3, ante, p. , the Court, it seems to me, has turned upside-down the relative importance of appellant’s reliance on the various points made by him on this appeal.
. See 170 Ohio St., 427. Because of the unusual provision of the Ohio Constitution requiring “the concurrence of at laest all but one of the *538judges” of the Ohio Supreme Court before a state law is held unconstitutional (except in the case of affirmance of a holding of unconstitutionaiity by the Ohio Court of Appeals), Ohio Const., Art. IV, §2, the State Supreme Court was compelled to uphold the constitutionality of §2905.34, despite the fact that four of its seven judges thought the statute offensive to the Fourteenth Amendment.
. Respecting the “substantiality” of the federal questions tendered by this appeal, appellant’s Jurisdictional Statement contained the following:
“The Federal questions raised by this appeal are ‘substantial for the following reasons:
“The Ohio Statute under which the defendant was convicted violates one’s sacred right to own and hold property, which has been held inviolate by the Federal Constitution. The right of the individual ‘to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to be a clear infringement of the constitutional rights of the individual’ (Justice Herbert’s dissenting Opinion. Appendix ‘A’). Many convictions have followed that of the defendant in the State Courts of Ohio based upon this very same statute. Unless this Honorable Court hears this matter and determines once and for all that the Statute is unconstitutional as defendant contends, there will be many such appeals. When Sections 2905.34, 2905.37 and 3767.01, Revised Code [the latter two Sections providing exceptions to the coverage of Section 2905.34, Revised Code, and related provisions of Ohio’s obscenity statutes] are read together, . . . they obviously contravene the Federal and State constitutional provisions; by being convicted under the Statute involved herein, and in the manner in which she was convicted, Defendant-Appellant has been denied due process of law; a sentence of from one (1) to seven (7) years in a penal institution for alleged violation of this unconstitutional section of the Ohio Revised Code deprives the defendant of her right to liberty and the pursuit of happiness, contrary to the Federal and State constitutional provisions, for circumstances which she herself did not put in motion, and is a cruel and unusual punishment inflicted upon her contrary to the State and Federal Constitutions.”
. The appellant’s brief did not urge the overruling of Wolf. Indeed it did not even cite the case. The brief of the appellee merely relied on Wolf in support of the State’s contention that appellant’s conviction was not vitiated by the admission in evidence of the fruits of the alleged unlawful search and seizure by the police. The brief of the American and Ohio Civil Liberties Unions, as amici, did in one short concluding paragraph of its argument “request” the Court to re-examine and overrule Wolf, but without argumentation. I quote in full this part of their brief:
“This case presents the issue of whether evidence obtained in an illegal search and seizure can constitutionally be used in a State criminal proceeding. We are aware of the view that this Court has taken on this issue in Wolf v. Colorado, 338 U. S., 25. It is our purpose by this paragraph to respectfully request that this Court re-examine this issue and conclude that the ordered liberty concept guaranteed to persons by the due process clause of the Fourteenth Amendment necessarily requires that evidence illegally obtained in violation thereof, not be admissible in state criminal proceedings.”
. Counsel for appellant on oral argument, as in his brief, did not urge that Wolf be overruled. Indeed, when pressed by questioning from the bench whether he was not in fact urging us to overrule- Wolf, counsel expressly disavowed any such purpose.
. “2905.37 Legitimate Publications Not Obscene.
“Sections 2905.33 to 2905.36, inclusive, Revised Code, do not affect teaching in regularly chartered medical colleges, the publication of standard medical books, or regular practitioners of medicine or druggists in their legitimate business, nor do they affect the publication and distribution of bona fide works of art. No articles specified in Sections 2905.33, 2905.34 and 2905.36, Revised Code, shall be considered a work of art unless such article is made, published, and distributed by a bona fide association of artists or an association for the advancement of art whose demonstrated purpose does not contravene Sections 2905.06 to 2905.44, inclusive, Revised Code, and which is not organized for profit.
“3767.01(C)
“This section and Sections 2905.34, . . . 2905.37 . . ., Revised Code, shall not affect . . . any newspaper, magazine, or other publication entered as second class matter by the post-office department.”
. The Ohio Supreme Court, in its construction of Section 2905.34, Revised Code, controlling upon us here, refused to import into it any other exceptions than those expressly provided by the statute. See note 7, supra. Instead it held that “if anyone looks at a book and finds it lewd, he is forthwith, under this legislation, guilty. . . .”
. See Wolf v. Colorado, 338 U. S., at 39-40; Irvine v. California, 347 U. S., 128, 133-134, and at 138-139. In the latter case, decided in 1954, Mr. Justice Jackson, writing for the majority, said (at p. 134) : “We think that the Wolf decision should not be overruled, for the reasons so persuasively stated therein.” Compare Schwartz v. Texas, 344 U. S., 199, and Stefanelli v. Minard, 342 U. S., 117, in which the Wolf case was discussed and in no way disapproved. And see Pugach v. Dottinger, 365 U. S., 458, which relied on Schwartz.
. Actually, only four members of the majority support this reasoning. See, p. , infra.
. Rea v. United States, 350 U. S., 214; Elkins V. United States, 364 U. S., 206; Rios v. United States, 364 U. S., 253.
. My Brother Stewart concurs in the Court’s judgment on grounds which have nothing to do with Wolf.