Records, Reports and Subpoenas
Since the common law did not countenance compulsory self incrimination, many years passed before the Supreme Court was called upon to interpret the constitutional provisions bearing upon the privilege against such testimonial compulsion. Not until Boyd v. United States[28] did it have to meet the issue; there, pursuant to an act of Congress, a court had issued an order in a proceeding for the forfeiture of goods for fraudulent nonpayment of customs duties, requiring the claimant to produce in court his invoices covering the goods, on pain of having the allegation taken as confessed against him. The order and the statute which authorized it were held unconstitutional in a notable opinion by Justice Bradley, as follows: "Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is [forbidden] * * * In this regard the Fourth and Fifth Amendments run almost into each other."[29] Thus the case established three propositions of far-reaching significance: (1) that a compulsory production of the private papers of the owner in such a suit was a search and seizure within the meaning of the Fourth Amendment;[30] (2) that in substance such seizure compelled him to be a witness against himself in violation of Amendment V,[31] and (3) that, because it was a violation of the Fifth Amendment, it was also an unreasonable search and seizure under the Fourth.[32]
Only natural persons can resist the subpoena of private papers on the ground of self incrimination.[33] Even an individual cannot refuse to produce records which are in his custody on the plea that they might incriminate the owner or himself where the documents belong to a corporation,[34] or to a labor union.[35] A bankrupt can be compelled to turn over records which are part of his estate.[36] Papers already in the custody of a United States court in consequence of their having been used by the owner himself as evidence on another proceeding may be used before a grand jury as a basis for an indictment for perjury.[37] A corporation may challenge an order for the production of records if it is unreasonable on grounds other than self incrimination, i.e., if it is too sweeping,[38] if the information sought is not relevant to any lawful inquiry,[39] or if it represents "a fishing expedition" in quest of evidence of crime.[40] In Oklahoma Press Pub. Co. v. Walling,[41] the question of the protection afforded by the Constitution against the subpoena of corporate records was thoroughly reviewed. Justice Rutledge summarized the Court's views in the following words: "* * * the Fifth Amendment affords no protection by virtue of the self incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. * * * It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. * * * The requirement of 'probable cause, supported by oath or affirmation,' literally applicable in the case of a warrant is satisfied, in that of an order for production, by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in 'describing the place to be searched, and the persons or things to be seized,' also literally applicable to warrant, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry."[42]
As a means of enforcing a valid statute, the Government may require any person subject thereto "to keep a record showing whether he has in fact complied with it,"[43] and to submit that record to inspection by government officers.[44] It may also compel the filing of returns disclosing the amount of tax liability,[45] and of reports under oath showing instances where employees have worked in excess of hours of labor permitted by law.[46] Without violating either the Fourth or Fifth Amendments, a judicial decree enjoining illegal practices under the Antitrust Act may provide that the Department of Justice shall be given access to all records and documents of the corporation relating to the matter covered by the decree.[47] The Supreme Court has intimated, however, that record keeping requirements must be limited to data which are relevant to the effective administration of the law.[48]
Search and Seizure Incidental to Arrest
The right to search the person upon arrest has long been recognized[49] but authority to search the premises upon which the arrest is made has been approved only in recent years. In Agnello v. United States,[50] the Supreme Court asserted that: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."[51] Books and papers used to carry on a criminal enterprise, which are in the immediate possession and control of a person arrested for commission of an offense in the presence of the officers may be seized when discovered in plain view during a search of the premises following the arrest.[52] The lawful arrest of persons at their place of business does not justify a search of desks and files in the offices where the arrest is made and seizure of private papers found thereon.[53] A search which is unlawfully undertaken is not made valid by the evidence of crime which it brings to light.[54]
By a five to four decision in Harris v. United States[55] the Court sustained, as an incident to a lawful arrest, a five hour search by four federal officers of every nook and cranny of a four-room apartment. It also upheld the seizure of papers unrelated to the crime for which the arrest was made, namely, Selective Service Registration cards which were discovered in a sealed envelope in the bottom of a bureau drawer. In justification of this conclusion, Chief Justice Vinson wrote: "Here the agents entered the apartment under the authority of lawful warrants of arrest. Neither was the entry tortious nor was the arrest which followed in any sense illegal. * * * The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the Mudge Oil Company. * * * If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."[56] In a dissenting opinion in which Justices Murphy and Rutledge concurred, Justice Frankfurter challenged the major premises announced by the Court. "To derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the Constitution protects [against] both unauthorized arrest and unauthorized search. Authority to arrest does not dispense with the requirement of authority to search. * * * But even if the search was reasonable, it does not follow that the seizure was lawful. If the agents had obtained a warrant to look for the canceled checks, they would not be entitled to seize other items discovered in the process. * * * The Court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search."[57] A more limited search in connection with an arrest was held valid in United States v. Rabinowitz.[58] In that case, government officers, armed with a valid warrant for arrest, had arrested respondent in his one-room office which was open to the public. Thereupon, over his objection, they searched the desk, safe and file cabinets in the office for about an hour and a half and seized 573 forged and altered stamps. Justice Minton assigned five reasons for holding that the search and seizure was reasonable: "(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money."[59] This decision also overruled an intermediate case, Trupiano v. United States,[60] whereby the practical effect of the Harris decision had been circumscribed by a ruling that even where a valid arrest is made, a search without a warrant is not permissible if the circumstances make it feasible to procure a warrant in advance.
The Fourth Amendment has been construed "* * *, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where is it not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."[61] Where officers have reasonable grounds for searching an automobile which they are following, a search of the vehicle immediately after it has been driven into an open garage is valid.[62] The existence of reasonable cause for searching an automobile does not, however, warrant the search of an occupant thereof, although the contraband sought is of a character which might be concealed on the person.[63]
Use of Evidence