Coolidge v. New Hampshire

Me. Justice Hablan,

concurring.

From the several opinions that have been filed in this case it is apparent that the law of search and seizure is due for an overhauling. . State and federal law enforcement officers and prosecutorial authorities must find quite intolerable the present state of uncertainty, which extends even to such an everyday question as the circumstances under which police may enter a man’s property to arrest him and seize a vehicle believed to have been used during the commission of a crime.

I would begin this process of re-evaluation by overruling Mapp v. Ohio, 367 U. S. 643 (1961), and Ker v. California, 374 U. S. 23 (1963). The former of these . cases made the federal “exclusionary rule” applicable to the States. The latter forced the States to follow all the ins and outs of this Court’s Fourth Amendment decisions, handed down in federal cases.

In combination Mapp and Ker have been primarily responsible' for bringing about serious distortions and incongruities in this field of constitutional law. Basically these have had two aspects, as I believe an examination of our more reeient opinions and certiorari docket will show. First, the States have been put in a federal mold with respect to this aspect of criminal law enforcement, thus depriving the country of the opportunity to observe *491the effects of different procedures in similar settings. See, e. g., Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970), suggesting that the assumed “deterrent value” of the exclusionary rule has never been adequately demonstrated or disproved, and pointing out that because of Mapp all comparative statistics are 10 years old and no new ones can be obtained. Second, in order to leave some room for the States to cope with their own diverse problems, there has been generated a tendency to relax federal requirements under the Fourth Amendment, which now govern state procedures as well. For an illustration of that tendency in another constitutional field, again resulting from the infelicitous “incorporation” doctrine, see Williams v. Florida, 399 U. S. 78 (1970). Until we face up to the basic constitutional mistakes of Mapp and Ker, no solid progress in setting things straight in search and seizure law will, in my opinion, occur.

But for Mapp and Ker, I would have little difficulty in voting to sustain this conviction, for I do not think that anything the State did in this case could be said to offend those values which are “at the core of the Fourth Amendment.” Wolf v. Colorado, 338 U. S. 25, 27 (1949); cf. Irvine v. California, 347 U. S. 128 (1954); Rochin v. California, 342 U. S. 165 (1952).

Because of Mapp and Ker, however, this case must be judged in terms of federal standards, and on that basis I concur, although not without difficulty, in Parts I, II-D, and III of the Court’s opinion and in the judgment of the Court.* It must be recognized that the case is a close one. The reason I am tipped in favor, of Mr. Jus*492tice Stewart’s position is that a contrary result in this case would, I fear, go far toward relegating the warrant requirement of the Fourth Amendment to a position 'of little consequence in federal search and seizure law, a course which seems to me opposite to the one we took in Chimel v. California, 395 U. S. 752 (1969), two Terms ago. .

Recent scholarship has suggested that in emphasizing the warrant requirement over' the reasonableness of the search the Court has “stood the fourth amendment on its head” from a historical standpoint. T. Taylor, Two Studies in Constitutional Interpretation 23-24 (1969). This issue is perhaps most clearly presented in the casé of a warrantless entry into a man’s home to arrest him on probable cause.- The validity of such entry was left open in Jones v. United States, 357 U. S. 493, 499-500 (1958), and although my Brothers White and Stewart both feel that their contrary assumptions on this point are at the root of their disagreement in this case, ante, at 477-479; post, at 510-512, 521, the Court again leaves the issue open. Ante, at 481. In my opinion it does well to do so. This matter should not be decided in a state case not squarely presenting the issue and where it was not fully briefed and argued. I intimate no view on this subject, but until it is ripe for decision, I hope in a federal case, I am unwilling to lend my support to setting back the trend of our recent decisions.

Beeause of my views as to the retroactivity of Chimel v. California, 395 U. S. 752 (1969), I do not believe the seizure of the Pontiac can be upheld as incident to Coolidge’s arrest. ■ See my separate opinion in Mackey v. United States, 401 U. S. 667, 675 (1971).