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Boyd v. United States 116 U.S. 616 (1886)

BOYD v. UNITED STATES 116 U.S. 616 (1886)

Justice louis d. brandeis believed that Boyd will be remembered "as long as civil liberty lives in the United States." The noble sentiments expressed in joseph p. bradley's opinion for the Court merit that estimate, but like many another historic opinion, this one was not convincingly reasoned. To this day, however, members of the Court return to Boyd to grace their opinions with its authority or with an imperishable line from Bradley's.

Boyd was the first important search and seizure case as well as the first important case on the right against self-incrimination. It arose not from a criminal prosecution but from a civil action by the United States for the forfeiture of goods imported in violation of customs revenue laws. In such cases an 1874 act of Congress required the importer to produce in court all pertinent records tending to prove the charges against him or suffer the penalty of being taken "as confessed." The Court held the act unconstitutional as a violation of both the fourth and fifth amendments. The penalty made the production of the records compulsory. That compulsion, said Bradley, raised "a very grave question of constitutional law, involving the personal security and privileges and immunities of the citizen.…" But did the case involve a search or a seizure, and if so was it "unreasonable," and did it force the importer to be a witness against himself in a criminal case?

Bradley conceded that there was no search and seizure as in the forcible entry into a man's house and examination of his papers. Indeed, there was no search here for evidence of crime. The compulsion was to produce records that the government required importers to keep; no private papers were at issue. Moreover, no property was confiscated as in the case of contraband like smuggled goods. The importer, who was not subject to a search, had merely to produce the needed records in court; he kept custody of them. But the Court treated those records as if they were private papers, which could be used as evidence against him, resulting in the forfeiture of his property, or to establish a criminal charge. Though the proceeding was a civil one, a different section of the same statute did provide criminal penalties for fraud.

Bradley made a remarkable linkage between the right against unreasonable search and seizure and the right against self-incrimination. The "fourth and fifth amendments," he declared, "almost run into each other." That they were different amendments, protected different interests, had separate histories, and reflected different policies was of no consequence to Bradley. He was on sound ground when he found that the forcible production of private papers to convict a man of crime or to forfeit his property violated the Fifth Amendment and was "contrary to the principles of a free government." He was on slippery ground when he found that such a compulsory disclosure was "the equivalent of a search and seizure—and an unreasonable search and seizure—within the meaning of the fourth amendment." His reasoning was that though the case did not fall within the "literal terms" of either amendment, each should be broadly construed in terms of the other. Unreasonable searches and seizures "are almost always made for the purpose of compelling a man to give evidence against himself," and compulsion of such evidence "throws light on the question as to what is an 'unreasonable search and seizure.'…" In support of his reasoning Bradley quoted at length from Lord Camden's opinion (see charles pratt) in Entick v. Carrington (1765). Camden, however, spoke of a fishing expedition under general warrants issued by an executive officer without authorization by Parliament. There was no warrant in this case, and there was authorization by Congress for a court to compel production of the specific records required by law to be kept for government inspection, concerning foreign commerce which Congress may regulate. In this case, however, Bradley thought meticulous analysis was out of place. He feared that unconstitutional practices got their footing in "slight deviations" from proper procedures, and the best remedy was the rule that constitutional protections "for the security of person and property should be liberally construed." Close construction, he declared, deprived these protections of their efficacy.

Justice samuel f. miller, joined by Chief Justice morrison r. waite, concurred in the judgment that that offensive section of the act of Congress was unconstitutional. Miller found no search and seizure, let alone an unreasonable one. He agreed, however, that Congress had breached the right against self-incrimination, which he thought should be the sole ground of the opinion.

The modern Court no longer assumes that the Fifth Amendment is a source of the Fourth's exclusionary rule or that the Fourth prohibits searches for mere evidence. Moreover, the production of private papers may be compelled in certain cases, as when the Internal Revenue Service subpoenas records in the hands of one's lawyer or accountant.

Leonard W. Levy
(1986)

Bibliography

Gerstein, Robert S. 1979 The Demise of Boyd: Self-Incrimination and Private Papers in the Burger Court. UCLA Law Review 27:343–397.

Landynski, Jacob W. 1966 Search and Seizure and the Supreme Court. Pages 49–61. Baltimore: Johns Hopkins University Press.

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