Mere evidence is evidence seized from a person’s home that the government has no property interest in and that is intended only to be used as evidence against the property owner. Mere evidence cannot be the fruits or instrumentalities of a crime or contraband. Mere evidence was the subject of an evidentiary rule adopted by the Supreme Court in 1921 and abandoned in 1967. The rule prevented the admission of such evidence at trial. The intent of the rule was to prevent the compelled self-incriminating testimony of the homeowner. The rule barred the issuance of a search warrant when the goal was only to seize mere evidence. Instead, whether a search was conducted with a warrant, or without a warrant but under the appropriate circumstances, authorities could only seize fruits and instrumentalities of a crime or contraband.
The rule had its genesis in Gouled v. United States, 255 U.S. 298 (1921). In 1918, Gouled was suspected of conspiring to defraud the government in dealings for clothing and equipment needed for the war effort. The government induced an Army private who was a friend of Gouled to secure access to Gouled’s office and records. The private did just that and, while Gouled was out of the room, seized several documents that were later offered in evidence against Gouled. Gouled had no idea the documents had been removed. After the first seizure, the government obtained two different search warrants and seized additional documents to use against Gouled at trial.
The Supreme Court had no difficulty resolving the case. It ruled that none of the documents had been properly admitted against Gouled. The initial search and seizure by the Army private were both unreasonable and unconstitutional.
The two search warrants used to seize the additional documents were proper on their face, as the documents were identified as instrumentalities of a crime. The problem for the Court lay in the nature of the documents seized. The Court noted, “There is no statement . . . of the contents of these papers, but it is said of them only, that they belonged to Gouled, that they were without pecuniary value, and that they constituted evidence more or less injurious to the defendant.”
The Court relied on common law and prior Supreme Court rulings to find that only “stolen or forfeited property, or property liable to duties and concealed to avoid payment of them, excisable articles and topics required by law to be kept with respect to them, counterfeit coin, burglars’ tools and weapons, implements of gambling ‘and many other things of like character’ might be searched for in home or office, and if found might be seized.” But search warrants could not be lawfully “used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding.”
The Court did note that there was no special protection for papers. Indeed, it listed several circumstances under which papers could legally be searched for and seized, such as searches for stolen or forged papers, lottery tickets when it is illegal to possess them, or even contracts when their seizure will prevent further fraud. In this instance, however, the Court held that the seizure of papers solely for the purpose of using them as evidence against their owner was the equivalent of the owner’s forced testimony against himself and was constitutionally protected. The Court’s position was, in essence, based on property interests. When the government’s property interest was superior to that of a homeowner, search and seizure was appropriate. When the government had no property interest in the items, search and seizure was unlawful.
In 1967, as the Supreme Court rejected the rule in Warden v. Hayden, 387 U.S. 294 (1967), Justice Brennan noted that in the years between 1921 and 1967, the mere evidence rule “spawned exceptions so numerous and confusion so great, in fact, that it is questionable whether it affords meaningful protection.” Indeed, by 1967 the court had extended privacy rights to prohibit seizure “of the very items which at common law could be seized with impunity: stolen goods, instrumentalities, and contraband.”
The facts in Warden were interesting, although, in truth, they did not play an overwhelming role in the Court’s decision. During the early morning hours on March 17, 1962, an armed man stole $363 from Baltimore’s Diamond Cab Company and ran. Two taxi drivers outside the office saw the man flee and followed. During the chase they gave their dispatcher a description of the man and provided the address of the home the man had entered. The dispatcher relayed the information to police. Within minutes, police arrived at the scene and were given permission by the suspect’s wife to search the home.
Officers searched through the two residential floors and the basement of the home looking for the suspect. He was found in an upstairs bedroom in bed pretending to be asleep. In other parts of the home, officers found guns hidden in a running toilet and the clothes the suspect had worn during the robbery in a washing machine. Ammunition for one of the guns was found under the suspect’s mattress. Ammunition for another gun was found in a bureau. All the evidence was admitted at trial. On appeal in a habeas action, the federal Court of Appeals ruled the search proper, but the clothing was immune from seizure since it was mere evidence and it should not have been admitted at trial.
The Supreme Court rejected the argument, noting
Nothing in the language of the Fourth Amendment supports the distinction between ‘mere evidence’ and instrumentalities, fruits of crime, or contraband. . . . Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband [and] nothing in the nature of property seized as evidence renders it more private than property seized, for example, as an instrumentality; quite the opposite may be true. Indeed, the distinction is wholly irrational, since, depending on the circumstances, the same ‘papers and effects’ may be ‘mere evidence’ in one case and ‘instrumentality’ in another.
Justice Brennan explained that the proposition that the Fourth Amendment was designed to protect property rights had long been discredited. Instead, he declared, “We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property.” To achieve the balance frequently needed, he explained the court had adopted the “remedy of exclusion.” The idea that government must prove a superior property interest to justify a search and seizure was a fiction that obscured the fact that government had a serious interest in solving crime.
The Court held that “[t]he requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for ‘mere evidence’ or for fruits, instrumentalities, or contraband.” It added that the possibility of suppression when rights are violated actually provides more protection to individuals because it allows them to assert constitutional protections without claiming any property interests. In effect, privacy rights under the Fourth Amendment were seen to be superior to property rights.
Privacy advocates, however, would not cheer the decision. Warden was arguably the death knell for any claim that the search of a person’s home for evidence constituted an impermissible effort by government to force the homeowner’s self-incriminating testimony. Indeed, the long-held notions of what constituted self-incrimination or testimony have fallen by the wayside as the courts will now allow seizure of conversations, voice and handwriting exemplars, demonstrative evidence, fingerprints, blood and urine samples, and fingernail and skin scrapings. In some instances, these seizures can be made without a warrant provided the government can show that its special needs are met.
The decision also effectively opened the doors of any home when officers can show probable cause to believe that evidence of a crime, fruits or instrumentalities of a crime, or contraband might be found in that home. The reliance on suppression provides little protection for the homeowner who didn’t want the sanctity of the home invaded in the first place.
Finally, a third consequence of Warden’s rejection of the mere evidence rule was that it opened the door for police to search the homes of third parties—people not personally suspected of committing crimes—for evidence to be used in the prosecution of another. This extension was confirmed in Zurcher v. Stanford Daily, 436 U.S. 547 (1978), in which the Court held
Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue. The Warrant Clause speaks of search warrants issued on “probable cause” and “particularly describing the place to be searched, and the persons or things to be seized.” In situations where the State does not seek to seize “persons,” but only those “things” which there is probable cause to believe are located on the place to be searched, there is no apparent basis in the language of the Amendment for also imposing the requirements for a valid arrest—probable cause to believe that the third party is implicated in the crime.
If the mere evidence rule still applied, the privacy of those third parties would be protected since the searches authorized by Zurcher would only be for mere evidence.
