Walter v. United States
Opinion of the Court
announced the judgment of the Court and delivered an opinion, in which Mr. Justice Stewart joined.
Having lawfully acquired possession of a dozen cartons of motion pictures, law enforcement officers viewed several reels of 8-millimeter film on a Government projector. Labels on the individual film boxes indicated that they contained obscene pictures. The question is whether the Fourth Amendment required the agents to obtain a warrant before they screened the films.
Only a few of the bizarre facts need be recounted. On September 25, 1975, 12 large, securely sealed packages containing 871 boxes of 8-millimeter film depicting homosexual activities were shipped by private carrier from St. Petersburg, Fla., to Atlanta, Ga. The shipment was addressed to “Leggs, Inc.,”
Thereafter, without making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment, FBI agents viewed the films with a projector. The record does not indicate exactly when they viewed the films, but at least one of them was not screened until more than two months after the FBI had taken possession of the shipment.
On April 6, 1977, petitioners were indicted on obscenity charges relating to the interstate transportation of 5 of the 871 films in the shipment. A motion to suppress and return the films was denied, and petitioners were convicted on multiple counts of violating 18 U. S. C. §§ 371, 1462, and 1465. Over Judge Wisdom’s dissent, the Court of Appeals for the Fifth Circuit affirmed, 592 F. 2d 788, and rehearing was denied, 597 F. 2d 63 (1979). We granted certiorari, 444 U. S. 914,
“This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. . . . After finding them, the agents spent some 50 minutes exhibiting them by means of the appellant’s projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant.
“Even in the much-criticized case of United States v. Rabinowitz, 339 U. S. 56, the Court emphasized that 'exploratory searches . . . cannot be undertaken by officers with or without a warrant.’ Id., at 62. This record presents a bald violation of that basic constitutional rule. To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man’s home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant.
“Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmis*654 sible in evidence at the appellant’s trial.” Id., at 571-572 (footnote omitted).
Even though the cases before us involve no invasion of the privacy of the home, and notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner’s constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.
It is perfectly obvious that the agents’ reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation — that is to say, a search of the contents of the films — was necessary in order to obtain the evidence which was to be used at trial.
The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field’s opinion for the Court in Ex parte Jackson, 96 U. S. 727, established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer’s authority to possess a package is distinct from his authority to examine its contents.
When an official search is properly authorized — whether by consent or by the issuance of a valid warrant — the scope of the search is limited by the terms of its authorization.
If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party’s invasion of another person’s privacy. Even though some circumstances — for example, if the results of the private search are in plain view when materials are turned over to the Government — may justify the Government’s reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening, one could only draw inferences about what was on the films.
We therefore conclude that the rationale of Mr. Justice Stewart’s concurrence in Stanley v. Georgia, 394 U. S. 557,
It is so ordered.
Mr. Justice Marshall concurs in the judgment.
There was no “Leggs, Inc.” “Leggs” was the nickname of a woman employed by one of petitioners’ companies. The packages indicated that the intended recipient would pick them up and pay for them at the carrier’s terminal in Atlanta.
Each reel was eight millimeters in width. Petitioner Walter informs us that, excluding three millimeters for sprocketing and one millimeter for the border, the film itself is only four millimeters wide. Brief for Petitioner in No. 79-67, p. 30, n. 8. Since the scenes depicted within the frame are necessarily even more minute, it is easy to understand why such films cannot be examined successfully with the naked eye.
The FBI had meanwhile received no request from the consignee or the consignor of the films for their return, but the agents had been told by employees of L’Eggs Products, Inc., that inquiries had been made as to their whereabouts.
The petition for certiorari in No. 79-67 presented 10 separate questions, and the petition in No. 79-148 presented 5 separate questions. Except
“In th[e] enforcement [of regulations as to what may be transported in the mails], a distinction is to be made between different kinds of mail matter, — between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and
And later in his opinion, Mr. Justice Field again noted that “regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant, issued upon oath or affirmation, in the search for prohibited matter. . . .” Id., at 735.
“This is the history which prompted the Court less than four years ago to remark that ‘[t]he use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.’ Marcus v. Search Warrant, 367 U. S. 717, at 724. ‘This history was, of course, part of the intellectual matrix within which our constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.’ Id., at 729. As MR. Justice Douglas has put it, ‘The commands of our First Amendment (as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, [19 How. St. Tr. 1029 (1765)]. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination
“In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” Stanford v. Texas, 379 U. S. 476, 484-485.
See also Roaden v. Kentucky, 413 U. S. 496, 501. Although there were 871 reels of film in the shipment, there were only 25 different titles. Since only five of the titles were used as a basis for prosecution, it may be presumed that the other films were not obscene.
“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another.” Manon v. United States, 275 U. S. 192, 196.
The Warrant Clause of the Fourth Amendment expressly provides that no warrant may issue except those “particularly describing the place to be searched, and the persons or things to be seized.”
Since the viewing was first done by the Government when it screened the films with a projector, we have no occasion to decide whether the Government would have been required to obtain a warrant had the private party been the first to view them.
The fact that the labels on the boxes established probable cause to believe the films were obscene clearly cannot excuse the failure to obtain a
Contrary to the dissent, post, at 665-666, n. 3, there were no impracticalities in these cases that would vitiate the warrant requirement. The inability to serve a warrant on the owner of property to be searched does not make execution of the warrant unlawful. See ALI, Model Code of Pre-Arraignment Procedure §220.3 (4) (Prop. Off. Draft 1975). Obviously, such inability does not render a warrant unnecessary under the Fourth Amendment. Nor is it clear in these cases that it would have been impossible to serve petitioners with a search warrant had the FBI made any effort to find them prior to screening the films. See n. 3, supra.
For the same reason, one may not deem petitioners to have consented to the screening merely because the labels on the unexposed boxes were explicit.
Nor can petitioners’ failure to make a more prompt claim to the Gov- ■ emment for return of the films be fairly regarded as an abandonment of their interest in preserving the privacy of the shipment. As subsequent events have demonstrated, such a request could reasonably be expected to precipitate criminal proceedings. We cannot equate an unwillingness to invite a criminal prosecution with a voluntary abandonment of any interest in the contents of the cartons. In any event, the record in these cases does indicate that the defendants made a number of attempts to locate the films before they were examined by the FBI agents.
The consignor’s expectation of privacy in the contents of a carton delivered to a private carrier must be measured by the condition of the package at the time it was shipped unless there is reason to assume that
The dissent asserts, post, at 665, that “[a]ny subjective expectation of privacy on the part of petitioners was undone ... by their own actions and the private search.” But it is difficult to understand how petitioners’ subjective expectation of privacy could have been altered in any way by subsequent events of which they were obviously unaware.
A partial invasion of privacy cannot automatically justify a total invasion. As Learned Hand noted in a somewhat different context: “It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the 'right of privacy.’ ” United States v. Rabinowitz, 176 F. 2d 732, 735 (CA2 1949), rev’d, 339 U. S. 56. Judge Hand’s view was ultimately vindicated in Chimel v. California, 395 U. S. 752, 768, which specifically disapproved this Court’s decision in Rabinowitz. See also Mr. Justice Stewart’s opinion concurring in the result in Stanley v. Georgia, 394 U. S. 557, 571-572, quoted supra, at 653-654.
It is arguable that a third party’s inspection of the contents of “private books, papers, memoranda, etc.” could be so complete that there would be no additional search by the FBI when it re-examines the materials. Cf. Burdeau v. McDowell, 256 U. S. 465, 470. But this is not such a case, because it was clearly necessary for the FBI to screen the films, which the private party had not done, in order to obtain the evidence needed to accomplish its law enforcement objectives.
Concurring Opinion
with whom Mr. Justice Brennan joins, concurring in part and concurring in the judgment.
I agree with Mr. Justice Stevens that the Government’s warrantless projection of the films constituted a search that infringed petitioners’ Fourth Amendment interests despite the fact that the Government had acquired the films from a private party.
This does not mean, however, that the Government subsequently may conduct the same kind of search that private parties have conducted without implicating Fourth Amendment interests. The contrary view would permit Government agents to conduct warrantless searches of personal property whenever probable cause exists as a result of a prior private search. We have previously held, however, that police must obtain a warrant before searching a suspect’s luggage even
I therefore concur in part and in the judgment.
Although Mr. Justice SteveNs’ opinion refers to the films as having been “lawfully acquired” by the Government, ante, at 651, 654, 656, I note that he does not reach the question whether the Government’s acquisition of the films was a “seizure” subject to the warrant requirement of the Fourth Amendment, ante, at 653, n. 4, a question on which the Court of Appeals was divided. 592 F. 2d 788, 792-793, 800-802 (CA5 1979). Likewise, I do not address this question.
Neither Burdeau v. McDowell nor Coolidge v. New Hampshire supports the proposition that private searches insulate subsequent governmental searches from Fourth Amendment scrutiny. In Burdeau the Court held that the actions of a private party in illegally seizing evidence will not be attributed to the Government 'for Fourth Amendment purposes
Because the private party’s opening of the packages exposed their contents to plain view and made it unnecessary for the FBI agents to open the packages, there was no governmental search when the FBI viewed their contents. Except in such circumstances, I do not understand how a third party’s inspection of a package’s contents “could be so complete that there would be no additional search by the FBI when it re-examines the materials,” ante, at 659, n. 14.
Dissenting Opinion
dissenting.
The Court at least preserves the integrity of the rule specifically recognized long ago in Burdeau v. McDowell, 256 U. S. 465 (1921). That rule is to the effect that the Fourth Amendment proscribes only governmental action, and does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.
I disagree with Mr. Justice Stevens’ opinion’s parsing of the cases’ “bizarre facts” see ante, at 651, to reach a result that
The cartons in which the films were contained were shipped by petitioners via Greyhound, a private carrier, to a fictitious addressee, and with the shipper fictitiously identified. The private examination of the packages by employees of L’Eggs Products, Inc., whom Greyhound innocently asked to pick up the packages, revealed that they contained films and that the films were of an explicit sexual nature. This was obvious from the drawings and labels on the containers, drawings that Mr. Justice Stevens’ opinion describes as “suggestive,” and descriptions he refers to as “explicit.” Ante, at 652. The containers thus clearly revealed the nature of their contents. See 592 F. 2d 788, 793-794, and n. 5 (CA5 1979). The opinion acknowledges that “there was nothing wrongful about the Government’s acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties.” Ante, at 656. But in finding that the FBI’s “projection of the films was a significant expansion of the search that had been conducted previously by a private party,” mite, at 657, the opinion seems conveniently to have overlooked the fact that the FBI received the film cartons after they had been opened, and after the films’ labels had been exposed to the public.
I agree with the conclusion reached by the Court of Appeals’ majority:
“Under these circumstances, since the L’Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI’s subsequent viewing of the movies on a projector did not ‘change the nature of the search’ and was not an additional search*664 subject to the warrant requirement.” 592 F. 2d, at 793-794.1
The Stevens opinion’s contrary conclusion apparently is based on the view that petitioners had a legitimate expectation of privacy in the contents of these films, which they had protected by sealing them securely in the proverbial “plain brown wrapper,” that was “frustrated” only “in part,” ante, at 659, by the earlier private search.
“And it seems to me, under the circumstances of this case, that shipping or causing or suffering to be shipped by a common carrier, namely, Greyhound Bus Lines, with a fictitious name given for the shipper as well as the fictitious name given for the consignee or addressee,*665 amounts to a relinquishment or abandonment of any reasonable expectation of privacy.
“Or, stated another way, it seems to me that it was reasonably foreseeable in those circumstances that what actually occurred would occur. That is to say, that there was substantial likelihood that the material would be mis-delivered and fall into the hands of some third party, as actually happened in this case, where it would be opened and its privacy, if it had any, invaded.” App. 37-38, quoted in part in 592 F. 2d, at 791.
Given the facts, and the Stevens opinion’s conclusions based thereon, I cannot help but wonder at the concession that “if a gun case is delivered to a carrier, there could then be no expectation that the contents would remain private.” Ante, at 659, n. 12. The films in question were in a state no different from Mr. Justice Stevens’ hypothetical gun case when they reached the FBI. Their contents were obvious from “the condition of the package,” ante, at 658, n. 12, and those contents had been exposed as a result of a purely private search that did not implicate the Fourth Amendment. Moreover, it was petitioners’ own actions that made it likely that such a private search would occur. The opinion fails to explain, at least to my satisfaction, why petitioners’ subjective expectation of privacy at the time they shipped the films, rather than at the time the films came into possession of the FBI (with the resulting protection of constitutional safeguards from unreasonable governmental action), controls this inquiry. Any subjective expectation of privacy on the part of petitioners was undone by that time by their own actions and the private search. In any event, it was abandoned by their shunning the property, under the circumstances of these cases, for over 20 months.
I would affirm the judgments of the Court of Appeals.
The Court of Appeals noted, 592 F. 2d, at 794, n. 6, and placed some reliance on, the observations of Judge William H. Webster in his dissenting opinion in United States v. Haes, 551 F. 2d 767 (CA8 1977):
“Can it be seriously argued that an agent receiving a suspected book or magazine from a freight carrier employee could not reasonably open the publication and peruse its pages to determine whether its contents offended the law? . . . Would a government agent who used a magnifying glass or other mechanical aid to identify an object be vulnerable to a claim of an unreasonable search independent of the lawful private search which produced the object? I think clearly not.
“The film in this case was not a means of concealing something else. In looking at the film through a projector, the agents did no more than view the motion pictures in the manner in which they were intended to be viewed.” Id., at 772-773 (footnote omitted).
The present cases are even stronger ones for recognizing the legality of the Government’s projection of the film than the case Judge Webster posed. When the FBI screened these films, they already were aware of the nature of their contents.
In contrast, I am at a loss to explain the conclusion stated in MR. Justice White’s opinion, ante, at 662, that even “a private screening of the films would not have destroyed petitioners’ privacy interest in them.”
All this is reinforced by the impractiealities the Court would impose upon the FBI in these cases. The Stevens opinion and the White opinion both insist that a warrant should have been obtained before any of the
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