Amend. 4.-Searches and Seizures.

Use of Papers or Property Illegally Obtained as Evidence

The admission of testimony illegally obtained does not constitute a violation of the constitutional guaranty of privilege under this amendment.

Adams v. New York, 192 U. S. 597.

The refusal of an application to return private papers, books, and other property, seized by the marshal upon the arrest of a person without warrant or search warrant, and their use in evidence on the trial, is a denial of rights secured by this amendment.

Weeks v. U. S., 232 U. S. 383.

The knowledge gained by the Federal Government's own wrong in seizing papers in violation of the owners' constitutional protection against unlawful searches and seizures can not be used by the Government in a criminal prosecution by serving subpoenas upon such owners to produce the original papers, which it had returned after copies had been made, and by obtaining a court order commanding compliance with such subpoenas.

Silverthorne Lbr. Co. v. U. S., 251 U. S. 385.

The United States may retain for use as evidence in the criminal prosecution of their owner incriminating documents which are turned over to it by private individuals who procured them without the participation or knowledge of any Government official, through a wrongful search of the owner's private desk and papers in an office.

Burdeau v. McDowell, 256 U. S. 465; Justices Brandeis and Holmes dissenting.

But a governmental fishing expedition into the papers of a private corporation on the possibility that they may disclose evidence of crime is so contrary to first principles of justice, if not defiant of this amendment, that an intention to grant the power to a subordinate agency will not be attributed to Congress unless expressed in most explicit language.

Federal Trade Comm. v. American Tobacco Co., 264 U. S. 298.

In a prosecution for concealing spirits, admission of testimony of revenue officers as to finding moonshine whiskey in a broken jug and other vessels near the house where the defendant resided and as to suspicious occurrences in that vicinity at the time of their visit, held not violative of the fourth or fifth amendments, even though the witnesses held no warrant and were trespassers on the land, the matters attested being merely acts and disclosures of defendant and his associates outside the house. The protection accorded by the fourth amendment to persons, houses, papers, and effects" does not extend to open fields.

Hester v. United States, 265 U. S. 57. Necessity of Showing "Probable Cause"

A warrant of commitment by justices of the peace must state a good cause certain, supported by oath.

Ex parte Burford, 3 Cranch 448.

Amend. 4.-Searches and Seizures.

An act of Congress, legislating for the District of Columbia, providing that all vagrants, all idle and disorderly and suspicious persons, etc., shall upon conviction thereof be fined, etc., held nugatory and without effect as to the provisions declaring that "all suspicious persons" could be arrested and prosecuted as criminals. A suspicious character does not constitute crime, nor does it justify the Government in treating the party having such reputation as a criminal, without connecting him with some criminal act or conduct.

Stoutenburgh v. Frazier, 16 App. Cas. (D. C.) 229.

Amendment 5.-RIGHTS OF PERSONS.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Leading Cases

Indictment

In Talton v. Mayes (163 U. S. 376) it was said:

As the powers of local self-government enjoyed by the Cherokee Nation existed prior to the Constitution, they are not operated upon by the fifth amendment, which had for its sole object to control the powers conferred by the Constitution on the National Government (p. 382).

It was held in Hawaii v. Mankichi (190 U. S. 213) that this amendment did not apply to Hawaii during the period of its transition from the Republic of Hawaii to a Territory of the United States.

Double Jeopardy

In Ex parte Lange (18 Wall. 169) it was held:

To every indictment or information charging a party with a known and defined crime or misdemeanor, whether at the common law or by statute, a plea of autrefois acquit or autrefois convict is a good defense.

In Simmons v. U. S. (142 U. S. 148) the court held that an acquittal before a court having no jurisdiction is like all the proceedings in the case, absolutely void, and, therefore, no bar to a subsequent indictment and trial in a court which has jurisdiction of the offense. Where a jury is discharged in a criminal case during the trial for reasons satisfactory to the judge, and the defendant is subsequently tried by another jury, he is not twice in jeopardy.

See p. 25 for ratification. For prohibition on States relating to due process of law, see Amend. 14, p. 660.

Amend. 5.—Rights of Persons-Leading Cases.

In Thompson v. U. S. (155 U. S. 271) the court, without the consent of the defendant, discharged the jury and directed another jury to be called. The defendant pleaded he had been once put in jeopardy for the same offense for which he now stood charged. It was held that courts of justice are invested with the authority to discharge a jury from giving a verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of justice would otherwise be defeated, and to order a trial by another jury; and that defendant is not thereby twice put in jeopardy.

In Grafton v. U. S. (206 U. S. 333) it was held that one having been tried for committing an offense in the Philippine Islands and acquitted can not subsequently be tried for the same offense in the United States; for an acquittal anywhere within the jurisdiction of the United States is a good defense against a second trial, although this is not true where one commits an offense which is indictable both in a State and the United States. In such case an acquittal in one court does not preclude a trial in the other.

Self-Incrimination

In Counselman v. Hitchcock (142 U. S. 562) the court said: It is impossible that the meaning of the constitutional provision can only be that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself. It would doubtless cover such cases, but it is not limited to them. The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime. The privilege is limited to criminal matters, but it is as broad as the mischief against which it seeks to guard. * * It is entirely consistent with the language of article 5 that the privilege of not being a witness against himself is to be exercised in a proceeding before a grand jury.

In Brown v. Walker (161 U. S. 600) it was said:

The danger of extending the principle announced in Counselman v. Hitchcock is that the privilege may be put forward for a sentimental reason, or for a purely fanciful protection of the witness against an imaginary danger, and for the real purpose of securing immunity to some third person, who is interested in concealing the facts to which he would testify. Every good citizen is bound to aid in the enforcement of the law and has no right to permit himself, under the pretext of shielding his own good name, to be made the tool of others, who are desirous of seeking shelter behind his privilege.

The court held that the act of Congress of 1893 afforded immunity against prosecution and deprived the witnesses of their constitutional right to refuse to answer.

In the Matter of Moran (203 U. S. 96) the petitioner was compelled to stand up and walk before the jury and during recess of the court the jury was stationed so as to observe his size and walk. Whether this was compelling one to be a witness against himself was a question which the Supreme Court declined to decide.

Amend. 5.-Rights of Persons-Leading Cases.

In Hale v. Henkel (201 U. S. 43) it was said that the fifth amendment operates only where the witness is asked to incriminate himself; in other words, to give testimony which may possibly expose him to a criminal charge. But the amendment would not apply if the criminality has already been removed, for it is a present and not a past criminality which is provided against.

In Hovey v. Elliott (167 U. S. 418) the court approved the definition of "due process of law" as given by Daniel Webster in the Dartmouth College case, in the argument of which he said:

By the law of the land [which Webster said was equivalent to due process of law] is most clearly intended the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society.

The historical and critical meaning of the words "due process of law" was examined in Murray v. Hoboken Land, etc., Co. (18 How. 272).

In Hurtado v. California (110 U. S. 516) it was held that due process of law within the meaning of the fifth amendment refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed and interpreted according to the principles of the common law. In Pennoyer v. Neff (95 U. S. 714) it was held that due process of law means a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights.

In Kelly v. Pittsburg (104 U. S. 78) it was held that where the necessities of the Government, the nature of the duty to be performed, and the customary usages of the people have established a procedure for the collection of taxes in this country, it is, and always has been, due process of law.

In Ex parte Wall (107 U. S. 265) it was held that the action of the court in cases within its jurisdiction is due process of law. It is a regular and lawful method of proceeding practiced from time immemorial. Conceding that an attorney's calling or profession is his property, within the true sense and meaning of the Constitution, it is certain that in many cases at least he may be excluded from the pursuit of it by the summary action of the court of which he is an attorney.

In Public Clearing House v. Coyne (194 U. S. 497) it was held that Executive orders may be due process of law.

In Hopt v. Utah (110 U. S. 574) it was held that in felony cases it is not within the power of the accused to dispense with the statutory requirement as to his personal presence at the trial,

See Amend. 14, p. 660, for restriction on State power.

Amend. 5. Rights of Persons-Leading Cases.

for to deprive him of his life or liberty without his personal presence would be without that due process of law required by this amendment.

In Crowley v. Christensen (137 U. S. 90) it was said:

As to the enjoyment of property, the rule is general that it must be accompanied with such limitations as will not impair the equal enjoyment by others of their property.

In Dayton-Goose Creek Ry. v. U. S. (263 U. S. 456) it was held that the recapture by the Government of excess income of railroads is not a taking of private property without due process of law.

Property and Eminent Domain

In Mitchell v. Harmony (13 How. 115) it was held that private property may be taken or destroyed in time of war to prevent it from falling into the hands of the enemy, and that in such cases full compensation must be made to the owner by the Government.

Gibson v. U. S., 166 U. S. 269, stating the doctrine in reference to riparian ownership.

Bauman v. Ross, 167 U. S. 548, treating of the benefit to owner as an element of just compensation.

Mugler v. Kansas, 123 U. S. 623.

Pumpelly v. Green Bay Co., 13 Wall. 166.

Kohl v. U. S., 91 U. S. 367.

U. S. v. Gettysburg, etc., R. Co., 160 U. S. 668.

Bedford v. U. S., 192 U. S. 217.

Construction and Operation

In General

This amendment is a limitation upon the Federal Government and has no reference to State action.

Barron v. Baltimore, 7 Pet. 243.

Fox v. Ohio, 5 How. 410.

Withers v. Buckley, 20 How. 84.

Twichell v. Pennsylvania, 7 Wall. 325.

U. S. v. Cruikshank, 92 U. S. 542.

Kelly v. Pittsburgh, 104 U. S. 79.

Eilenzecker v. Plymouth County, 134 U. S. 31.

Talton v. Mayes, 163 U. S. 376.

Capital City Dairy Co. v. Ohio, 183 U. S. 238.

Ohio v. Dollison, 194 U. S. 445.

Jack v. Kansas, 199 U. S. 372.

Hunter v. Pittsburgh, 207 U. S. 161.

McElvaine v. Brush, 142 U. S. 158.

Hallinger v. Davis, 146 U. S. 319.

Thorington v. Montgomery, 147 U. S. 492.

Monongahela Nav. Co. v. U. S., 148 U. S. 324.

Brown v. New Jersey, 175 U. S. 174.

Howard v. Kentucky, 200 U. S. 164.

Barrington v. Missouri, 205 U. S. 483.

McFaddin v. Evans-Snider-Buel Co., 185 U. S. 509.

Ensign v. Pennsylvania, 227 U. S. 592.

Constitutional provisions for the security of person or property should be liberally construed.

Boyd v. U. S., 116 U. S. 616.