Irvine v. California eText - Primary Source

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Demonstration of an eavesdropping device like the one used by those involved in Irvine v. California. The Supreme Court ruled later, in 1967, that law enforcement may not use wiretaps without court authorization. © BETTMANN/CORBIS. REPRODUCED BY PERMISSIO Demonstration of an eavesdropping device like the one used by those involved in Irvine v. California. The Supreme Court ruled later, in 1967, that law enforcement may not use wiretaps without court authorization. © BETTMANN/CORBIS. REPRODUCED BY PERMISSION. Published by Gale Cengage © BETTMANN/CORBIS. REPRODUCED BY PERMISSION.

Supreme Court decision

By: Robert H. Jackson, Thomas C. Clark, Hugo L. Black, William O. Douglas

Date: February 8, 1954

Source: Jackson, Robert H., Thomas C. Clark, Hugo L. Black, and William O. Douglas. Irvine v. California. 347 U.S. 128 (1954). Available online at ; website home page: (accessed March 4, 2003).

About the Authors: Robert H. Jackson (1892–1954) was the U.S. attorney general when President Franklin D. Roosevelt (served 1933–1945) appointed him to the Supreme Court in 1941. He took a leave from the Court in 1945 to serve as U.S. chief counsel at the Nuremberg war crimes trial. He was known for his strong defense of religious freedom and civil rights.

Thomas C. Clark (1899–1977) was U.S. attorney general under President Harry S. Truman (served 1945–1953). He served on the Supreme Court from 1949 to 1967. Although Clark was noted for some conservative Cold War–era views, he supported certain civil liberties vigorously.

Hugo L. Black (1886–1971) served two terms as a U.S. senator from Alabama and was known as a New Deal liberal. Roosevelt appointed him to the Supreme Court in 1937. His term was generally distinguished by his support of civil rights. He died one week after retiring from the Court. William O. Douglas (1898–1980) was the chairman of the Securities and Exchange Commission in 1939, when Roosevelt appointed him to the Supreme Court. At forty, he was one of the youngest men ever to be appointed. He served the longest of any justice, with over thirty-six years on the bench, and was highly regarded for his strong support of civil rights.


Unreasonable searches and seizures by policing agencies have taken place in the Americas since colonial times. Under the British crown, authorities searching out smuggled goods in the colonies were given documents called "writs of assistance," which gave them a general right to search wherever they wished and to seize whatever they found. The colonists themselves later used writs of assistance to collect taxes and recover slaves. Due to a growing sense of outrage against this practice, the Fourth Amendment was included in the Bill of Rights. The amendment reads, in part, that "the right of the people to be secure … against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause … and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment, though, prescribes no penalty for violation, and throughout the nineteenth century courts generally allowed the use of evidence seized illegally in obtaining convictions. Victims could use the civil courts to sue the person who had violated their Fourth Amendment rights, but this was little comfort when they had to do it from jail.

In 1886, the Supreme Court overturned a conviction and excluded from a trial papers that had been seized without a warrant. It took twenty-eight more years for the Supreme Court in Weeks v. U.S. (1914) to create what is called the "exclusionary rule"—proclaiming that evidence seized without a warrant cannot be used in trial in a federal court. The exclusionary rule, though, was unclear as to whether it was integral to the Fourth Amendment or not. The Supreme Court was also divided as to whether the exclusionary rule applied against the states. In 1949, the Supreme Court held that the right to privacy and to not be searched without a warrant was integral to the Fourth Amendment, but the Court did not apply this rule against the states. The same question, of whether the states were required to follow the Fourth Amendment, came up again in 1954 in Irvine v. California.


In Irvine, a taping device was installed and used, without a warrant, to gather evidence against Irvine, a suspected horse race bookmaker. Once the evidence was thus gathered, it was used in court to obtain a conviction. The petitioner, Irvine, argued that the use of this evidence violated his Fourth Amendment rights, but a majority of the court ruled that, even though his rights had been violated, the evidence could be used against him. The Court held that even though the invasion of Irvine's rights was shocking, it did not follow that he, as a guilty party, should not be convicted. The exclusionary rule that the federal courts had adopted to enforce Fourth Amendment rights was not being applied to the states. The dissent in Irvine argued that the Fourth Amendment should be applied against the states and the exclusionary rule was the only way to enforce it. The dissenters' views did not gain a majority until 1961 in Mapp v. Ohio, in which a search without a warrant was conducted in the home of a bombing suspect. The search produced allegedly obscene materials that were then used to bring about an obscenity conviction. The court overturned this conviction, holding that the exclusionary rule applied to states.

Courts have generally followed Mapp since, but narrowed it. The Supreme Court ruled that the exclusionary rule only applied to cases brought after Mapp. The Court also ruled that illegally seized evidence can be used if it can be proven that the evidence would have been found in time by other police methods. They also ruled that the Fourth Amendment only applies to the person whose privacy has been violated, not to anyone else, and that the exclusionary rule only applies at trial, and not to any preliminary hearings or grand jury proceedings. Later cases have also "weighed" the rights of the accused versus the rights of society in many criminal justice areas. The exclusionary rule generally applies, even though it has been limited.

Primary Source: Irvine v. California [excerpt]

SYNOPSIS: In recounting his opinion in Irvine, Justice Robert H. Jackson documents the officers' misconduct in the case. He holds that even though the conduct is shocking, it does not require overturning Irvine's conviction. He raises the issue that it has only been in relatively recent times, since 1949, that the Court has applied the basic search-and-seizure prohibition to the states, and that the states have not yet had time to respond. He upholds the opinion that the states should have the discretion to decide in such cases. Justice Tom C. Clark concurs with Jackson. Justice Hugo L. Black, dissenting, argues that there should be a reversal, as the evidence was extorted from Irvine by the federal government in violation of Fifth Amendment protection from being forced to incriminate oneself. Douglas dissents as well, stating that this conviction would seem more likely in a police state than in America.

Mr. Justice Jackson announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Reed and Mr. Justice Minton join.…

But the questions raised by the officers' conduct while investigating this case are serious. The police strongly suspected petitioner of illegal bookmaking but were without proof of it. On December 1, 1951, while Irvine and his wife were absent from their home, an officer arranged to have a locksmith go there and make a door key. Two days later, again in the absence of occupants, officers and a technician made entry into the home by the use of this key and installed a concealed microphone in the hall. A hole was bored in the roof of the house and wires were strung to transmit to a neighboring garage whatever sounds the microphone might pick up. Officers were posted in the garage to listen. On December 8, police again made surreptitious entry and moved the microphone, this time hiding it in the bedroom. Twenty days later, they again entered and placed the microphone in a closet, where the device remained until its purpose of enabling the officers to overhear incriminating statements was accomplished.…

Each of these repeated entries of petitioner's home without a search warrant or other process was a trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished. Science has perfected amplifying and recording devices to become frightening instruments of surveillance and invasion of privacy, whether by the policeman, the blackmailer, or the busybody. That officers of the law would break and enter a home, secrete such a device, even in a bedroom, and listen to the conversation of the occupants for over a month would be almost incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment.… The decision in Wolf v. Colorado, for the first time established that "[t]he security of one's privacy against arbitrary intrusion by the police" is embodied in the concept of due process found in the Fourteenth Amendment.…

It is suggested, however, that although we affirmed the conviction in Wolf, we should reverse here because this invasion of privacy is more shocking, more offensive, than the one involved there.

The opinions in Wolf were written entirely in the abstract and did not disclose the details of the constitutional violation. Actually, the search was offensive to the law in the same respect, if not the same degree, as here.…

We are urged to make inroads upon Wolfby holding that it applies only to searches and seizures which produce on our minds a mild shock, while if the shock is more serious, the states must exclude the evidence or we will reverse the conviction. We think that the Wolfdecision should not be overruled, for the reasons so persuasively stated therein. We think, too, that a distinction of the kind urged would leave the rule so indefinite that no state court could know what it should rule in order to keep its processes on solid constitutional ground.

Even as to the substantive rule governing federal searches in violation of the Fourth Amendment, both the Court and individual Justices have wavered considerably.… Never until June of 1949 did this Court hold the basic search-and-seizure prohibition in any way applicable to the states under the Fourteenth Amendment. At that time, as we pointed out, thirty-one states were not following the federal rule excluding illegally obtained evidence, while sixteen were in agreement with it. Now that the Wolf doctrine is known to them, state courts may wish further to reconsider their evidentiary rules. But to upset state convictions even before the states have had adequate opportunity to adopt or reject the rule would be an unwarranted use of federal power. The chief burden of administering criminal justice rests upon state courts. To impose upon them the hazard of federal reversal for noncompliance with standards as to which this Court and its members have been so inconstant and inconsistent would not be justified.…

It must be remembered that petitioner is not invoking the Constitution to prevent or punish a violation of his federal right recognized in Wolf or to recover reparations for the violation. He is invoking it only to set aside his own conviction of crime. That the rule of exclusion and reversal results in the escape of guilty persons is more capable of demonstration than that it deters invasions of right by the police. The case is made, so far as the police are concerned, when they announce that they have arrested their man. Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches. The disciplinary or educational effect of the court's releasing the defendant for police misbehavior is so indirect as to be no more than a mild deterrent at best. Some discretion is still left to the states in criminal cases, for which they are largely responsible, and we think it is for them to determine which rule best serves them.

But admission of the evidence does not exonerate the officers and their aides if they have violated defendant's constitutional rights. It was pointed out in Wolf v. Colorado, supra, that other remedies are available for official lawlessness, although too often those remedies are of no practical avail. The difficulty with them is in part due to the failure of interested parties to inform of the offense. No matter what an illegal raid turns up, police are unlikely to inform on themselves or each other. If it turns up nothing incriminating, the innocent victim usually does not care to take steps which will air the fact that he has been under suspicion. And the prospect that the guilty may capitalize on the official wrongdoing in his defense, or to obtain reversal from a higher court, removes any motive he might have to inform.…

Judgment affirmed.…

Mr. Justice Clark, concurring.

Had I been here in 1949 when Wolf was decided, I would have applied the doctrine of Weeks v. United States, … (1914) to the states. But the Court refused to do so then, and it still refuses today. Thus Wolf remains the law and, as such, is entitled to the respect of this Court's membership.…

In light of the "incredible" activity of the police here, it is with great reluctance that I follow Wolf. Perhaps strict adherence to the tenor of that decision may produce needed converts for its extinction. Thus I merely concur in the judgment of affirmance.

Mr. Justice Black, with whom Mr. Justice Douglas concurs, dissenting.

I would reverse this conviction because the petitioner Irvine was found guilty of a crime and sentenced to prison on evidence extorted from him by the Federal Government in violation of the Fifth Amendment.…

I think the Fifth Amendment of itself forbids all federal agents, legislative, executive and judicial, to force a person to confess a crime; forbids the use of such a federally coerced confession in any court, state or federal; and forbids all federal courts to use a confession which a person has been compelled to make against his will.…

The Fifth Amendment not only forbids agents of the Federal Government to compel a person to be a witness against himself; it forbids federal courts to convict persons on their own forced testimony, whatever "sovereign"—federal or state—may have compelled it. Otherwise, the constitutional mandate against self-incrimination is an illusory safeguard that collapses whenever a confession is extorted by anyone other than the Federal Government.

So far as this case is concerned it is enough for me that Irvine was convicted in a state court on a confession coerced by the Federal Government. I believe this frustrates a basic purpose of the Fifth Amendment—to free Americans from fear that federal power could be used to compel them to confess conduct or beliefs in order to take away their life, liberty or property. For this reason I would reverse Irvine's conviction.…

Mr. Justice Douglas, dissenting.

The search and seizure conducted in this case smack of the police state, not the free America the Bill of Rights envisaged.…

The evidence so obtained was used by California to send the suspect, petitioner here, to prison.

What transpired here was as revolting as the abuses arising out of the writs of assistance against which James Otis complained.…

In those days courts put their sanction behind the unlawful invasion of privacy by issuing the general warrant that permitted unlimited searches. There is no essential difference between that and the action we take today. Today we throw the weight of the Government on the side of the lawless search by affirming a conviction based on evidence obtained by it. Today we compound the grievance against which Otis complained. Not only is privacy invaded. The lawless invasion is officially approved as the means of sending a man to prison.

I protest against this use of unconstitutional evidence. It is no answer that the man is doubtless guilty. The Bill of Rights was designed to protect every accused against practices of the police which history showed were oppressive of liberty. The guarantee against unreasonable searches and seizures contained in the Fourth Amendment was one of those safeguards. In 1914 a unanimous Court decided that officers who obtained evidence in violation of that guarantee could not use it in prosecutions in the federal courts. Weeks v. United States.… Lawless action of the federal police, it said, "should find no sanction in the judgments of the courts.…" …

The departure from that principle which the Court made in 1949 in Wolf v. Colorado … is part of the deterioration which civil liberties have suffered in recent years. In that case the Court held that evidence obtained in violation of the Fourth Amendment, though inadmissible in federal prosecutions, could be used in prosecutions in the state courts.…

Exclusion of evidence is indeed the only effective sanction. If the evidence can be used, no matter how lawless the search, the protection of the Fourth Amendment, to use the words of the Court in the Weeks case, "might as well be stricken from the Constitution." …

If unreasonable searches and seizures that violate the privacy which the Fourth Amendment protects are to be outlawed, this is the time and the occasion to do it. If police officers know that evidence obtained by their unlawful acts cannot be used in the courts, they will clean their own houses and put an end to this kind of action. But as long as courts will receive the evidence, the police will act lawlessly and the rights of the individual will suffer. We should throw our weight on the side of the citizen and against the lawless police. We should be alert to see that no unconstitutional evidence is used to convict any person in America.

Further Resources


Hockett, Jeffrey D. New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson. Lanham, Md.: Rowman & Littlefield Publishers, 1996.

Sullivan, John J. A Guide to the Laws of Search and Seizure for New York State Law Enforcement Officers, rev. ed. Flushing, N.Y.: Looseleaf Law Publications, 1996.

Wilson, Bradford P. Enforcing the Fourth Amendment: A Jurisprudential History. New York: Garland, 1986.


Seamon, Richard H. "Kyllo v. United States and the Partial Ascendance of Justice Scalia's Fourth Amendment." Washington University Law Quarterly 79, no. 4, 2001, 1013–1033.

Taylor, Telford. "The Nuremberg Trials." Columbia Law Review 55, no. 4, April 1955, 488–525.


"U.S. Constitution: Fourth Amendment. Enforcing the Fourth Amendment: The Exclusionary Rule." Findlaw. Available online at ; website home page: (accessed March 4, 2003).