Maryland Penitentiary v. Hayden Warden

The case shifted the focus in Fourth Amendment cases from property rights to privacy rights.

In the morning of 17 March 1962, the Diamond Cab Company in Baltimore, Maryland was robbed by an armed man dressed in a light-colored cap and a dark jacket. Two cab drivers followed the robber to 2111 Cocoa Lane, and police officers arrived at the house within minutes. An officer knocked on the door to announce their arrival, and, according to the officers, Mrs. Hayden did not object when they asked if they could search the house for the robber.

The police officers found Bennie Joe Hayden in an upstairs bedroom pretending to sleep. When the officers determined that there was no other male in the house, they arrested Hayden. Meanwhile, other officers were searching and encountering evidence. One officer found a shotgun and pistol hidden in a toilet flush tank, another officer found ammunition for the guns, and another officer found a jacket and trousers similar to those reportedly worn by the robber.

Hayden was charged with armed robbery and convicted in a trial without a jury, or a "bench trial." Hayden did not object to the introduction of the clothing evidence found in the house, and he was convicted. After further state court proceedings went against him, Hayden filed a habeas corpus petition in federal court. He was denied at the district court level, but a divided panel of the Court of Appeals for the Fourth Circuit reversed that decision.

The appeals court held that the search of the home was valid under the Fourth Amendment, but that the introduction at trial of the clothing evidence was improper. According to rulings in similar Fourth Amendment cases, the officers had no right to seize items of mere evidential value when they were in Hayden's home. Because they had entered without a warrant, the officers were authorized to do no more than arrest Hayden and seize instrumentalities of the crime, fruits of the crime, and any contraband in plain view. The state of Maryland, through the respondent in Hayden's case, the warden of Hayden's penitentiary, asked the U.S. Supreme Court to review the case, and the High Court consented.

Upending its own precedent, the High Court reversed the appeals court and held for the warden and the state by a vote of 8-1. In an opinion written by Justice Brennan, the Court confessed that the distinction it had created in prior cases between "mere evidence" of a crime and other evidence--contraband and instrumentalities or fruits of a crime--was no longer valid. It was, said the Court, "based on premises no longer accepted as rules governing the application of the Fourth Amendment."

The legal premises that created the distinction between mere evidence and other evidence, Brennan explained, was based on an incorrect analysis of the Fourth Amendment. In these early Fourth Amendment cases, such as Gouled v. United States (1921) and Silverthorne Lumber Co. v. United States (1920), the Court had analyzed the Fourth Amendment right against unreasonable searches and seizures from a property standpoint, as opposed to a privacy standpoint. If, for example, the government asserted that it sought the fruits of a crime, it was deemed to have asserted a superior property interest and was therefore entitled to seize it. Such interest was extended in later cases to the instruments used in a crime and contraband, or articles that are illegal to own or possess. But this analysis, noted Brennan, was "discredited." The Court had begun to base its Fourth Amendment analyses on the protection of personal privacy in recent cases such as Jones v. United States (1960) and Silverman v. United States (1961). The question had become, then, whether a person's reasonable expectation of privacy was violated, and, opined Brennan, "[p]rivacy is no more disturbed by a search directed to a purely evidential object than it is by a search directed to an instrumentality, fruit, or contraband."

The Court agreed with the appeals court that the search was legal under the Fourth Amendment. However, the introduction of the clothing evidence did not, said the Court, constitute a violation of Hayden's Fourth Amendment rights. In Schmerber v. California (1966) the Court held that it is not unreasonable under the Fourth Amendment for government to conduct searches to obtain evidence (i.e. blood from a suspected drunk driver) that can help secure an arrest or conviction of a criminal. Brennan emphasized that there must be a connection between the items sought and the criminal behavior. In Hayden's case, the clothes found to be inadmissible by the federal appeals court were connected to proving the robbery because the robber's clothing had been identified by witnesses. Thus, the introduction of the evidence did not violate Hayden's Fourth Amendment rights.

Ultimately, the Court not only held for the warden, it went on to specifically reject the mere evidence rule. The majority said that the "mere evidence" rule had "spawned exceptions so numerous and confusion so great" that it did not afford meaningful protection. There was, therefore, "no viable reason" to observe the distinction.

Justices Black, Fortas, and Warren concurred in the judgment. In an opinion joined by Justice Warren, Justice Fortas agreed that the Fourth Amendment should not prevent the introduction of the clothing evidence in Hayden's case. However, Fortas and Warren believed that the majority had gone too far in striking down the mere evidence rule.

Fortas reviewed long-standing Fourth Amendment rules to explain his position. A general requirement of the Fourth Amendment is that a search should not be carried out without a warrant from a magistrate. A warrant may not be issued by a magistrate unless the police officer seeking the search warrant possesses probable cause to believe that the search will yield evidence of a crime, and the officer must specify what places are to be searched and what items are sought. One exception to the requirement of a warrant is where police officers are in hot pursuit of a fleeing felon. In such a case, officers need not obtain a warrant prior to conducting a search. Nevertheless, Fortas lectured, such searches "have, until today, been confined to those essential to fulfill the purpose of the exception: that is, we have refused to permit use of articles the seizure of which could not be strictly tied to and justified by the exigencies which excused the warrantless search." Instrumentalities and fruits of crime and contraband, said Fortas, are always sufficiently connected to a search that follows a hot pursuit of a criminal. Other evidence is not connected to the extraordinary circumstance of hot pursuit, and, Fortas argued, police should not be able to seize such evidence, nor should prosecutors be allowed to use such evidence at trial.

The Fourth Amendment does not, Fortas wrote, allow police to "search an entire building" in which an arrest occurs, or "to rummage through locked drawers and closets, or to search at another time and place." In Hayden's case, the clothing discovered was in fact related to the exigency that created the exception to the warrant requirement. The clothes worn by Hayden were "pertinent to identification of the person hotly pursued as being, in fact, the person whose pursuit was justified by connection with the crime." Unlike the majority, Fortas would not "drive an enormous and dangerous hole in the Fourth Amendment" to accommodate another exception to the mere evidence rule. Fortas closed by echoing the fears of dissenting Justice Douglas, ominously describing the majority's opinion as destroying "root and branch, a basic part of liberty's heritage."

In a long, strong dissent, Justice Douglas wrote passionately about the evils of the general warrant, which the Fourth Amendment was designed to thwart. The general warrant was used in England prior to the American Revolution, and it let police search around unfettered for evidence of crime and subsequently use the evidence as testimonial evidence in a prosecution. The framers of the Constitution found the practice repugnant to basic liberty, and argued for "the sanctity of one's home and his personal belongings, even the clothes he wore." Patrick Henry, for example, warned that government officers, if they were not restrained, would "go into your cellars and rooms, and search, ransack, and measure, everything you eat, drink, and wear." In Boston, colonists complained that their houses and bedrooms were "`exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants.'"

Douglas insisted that the case of Entick v. Carrington (1765), decided in England, was in the forefront of the founding fathers' minds when they fashioned the Fourth Amendment. In Entick, Douglas lectured, England's high court not only outlawed the use of the general warrant, it created "a zone of privacy which no government official may enter." Douglas noted that the Court had recently shrunk that zone of privacy in Schmerber, but he had objected to that decision and he renewed his objection in Hayden's case, arguing that the holding not only violated Hayden's Fourth Amendment rights but his Fifth Amendment right against self-incrimination. "That which is taken from a person without his consent and used as testimonial evidence," Douglas maintained, "violates the Fifth Amendment."

Douglas conceded that the Fourth Amendment does not make homes and offices "sanctuaries where the law can never reach." However, Douglas believed that individuals "should have the freedom to select for himself the time and circumstances when he will share his secrets with others and decide the extent of that sharing." Without such a zone of privacy, Douglas predicted that the Fourth and Fifth Amendments would become "ready instruments for the police state that the Framers sought to avoid."