Mere Evidence Rule
MERE EVIDENCE RULE
asearchwarrant must identify the place to be searched and the items to be seized. Such items may include fruits or instrumentalities of crime (such as stolen money or burglar's tools) or contraband (such as illegal drugs). In Gouled v. United States (1921) the Supreme Court held that search warrants could not issue to seize mere evidence of crime.
in warden v. hayden (1967), however, the Court held that warrants could issue for mere evidence so long as there was a "nexus" between the evidence and the criminal behavior. zurcher v. stanford daily (1978) illustrates the effect of the rule's abandonment. The Stanford University student newspaper published photographs of a campus disturbance between the police and demonstrators. Because the police observed only two of their assailants, a warrant was obtained for a search of the newspaper's offices. The warrant affidavit did not allege any involvement in the unlawful acts by newspaper staff members. During the search, police examined the paper's photographic labs, files, desks, and waste paper baskets. Since no new evidence was discovered, no items were taken.
One commentator has summarized the "mere evidence rule" after Zurcher as follows: Zurcher represents a case in which none of the items searched for by the police was a fruit or instrumentality of a crime, or contraband. Under the pre-Hayden rule, the warrant used in Zurcher could not have been issued. Yet the present broad rule is so well established that the Supreme Court's majority opinion did not even discuss the issue.
Charles H. Whitebread
Whitebread, Charles H. 1980 Criminal Procedure. Mineola, N.Y.: Foundation Press.