author: Mr. Justice Stewart Mr. Justice Clark,

text:
    TURNER v. LOUISIANA.
    No. 53.
    Argued November 19, 1964.
    Decided January 18, 1965.

      Allen B. Pierson, Jr., argued the cause for petitioner.With him on the brief was Burrell J. Carter.

      Leonard E. Yokum argued the cause for respondent. With him on the brief were Jack P. F. Gremillion, Attorney General of Louisiana, M. E, Culligan, Assistant Attorney General, and Duncan S. Kemp.

   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner, Wayne Turner, was indicted in Tangipahoa Parish, Louisiana, upon a charge of murder committed during the course of a robbery. After a three-day trial a jury found him guilty as charged. . He was sentenced to death. The conviction was affirmed by the Supreme Court of Louisiana, and we granted certiorari to consider the claim that the circumstances attending the trial were such as to deprive Turner of a right secured to him by the Fourteenth Amendment.

The two principal witnesses for the prosecution at the trial were Vincent Rispone and Hulon Simmons. Both were deputy sheriffs of Tangipahoa Parish. On direct examination Rispone described in detail an investigation he said he had made at the scene of the murder. He further testified that he. and Simmons later took Turner into custody, and that Turner had led them to a place in the woods where the cartridge clip from the murder weapon was recovered. Simmons corroborated Rispone’s testimony about apprehending Turner and finding the cartridge clip, and also told of certain damaging admission^ which he said had been made by Turner at the time of his apprehension. In addition, Simmons described the circumstances under which he said he had later prevailed upon Turner to make a written confession. This confession was introduced in evidence. Both Rispone and Simmons were cróssrexamined at length with respect to all aspects of their testimony. Turner did not take the witness stand in his own behalf.

The members of the jury were sequestered in accordance with Louisiana law during the course of the trial, and were “placed in charge of the Sheriff” by the trial judge. In practice, this meant that the jurors were continuously in the company of deputy sheriffs of Tangipahoa Parish during the three days that the trial lasted. The deputies drove the jurors to a restaurant for each meal, and to their lodgings each night. The deputies ate with them, conversed with them, and did errands for them.

Two of the deputy sheriffs who were in this close and continual association with the jurors were Vincent Ris-pone and Hulon Simmons. Turner’s counsel moved for a mistrial when Rispone testified as a witness for the prosecution, and made the same motion when Simmons testified. The brief hearings on these motions established that both Rispone and Simmons had in fact freely mingled and conversed with the jurors in and out of the courthouse during the trial. The court denied the mo-' tions, however, upon the ground that there was no showing that either deputy had talked with any member of the jury about the case itself.

The court did not direct Rispone or Simmons to cease associating with the jury, and, so far as the record shows, the association continued for the remainder of the trial. After the jury returned its verdict of guilty, Turner’s counsel filed a motion for a new trial upon substantially the same ground as had been urged in support of the. earlier motions for a mistrial — that the two principal wit-nessés for the prosecution “were in actual charge of the jury; that they were physically present with the jurors in and out of the jury room, in automobiles and in eating places with the jury members, mingling with the jurors . . . .” This motion was denied without any further evidentiary hearing, and Turner was sentenced to death by electrocution.

The bill of exceptions filed by the trial court, Upon which Turner’s appeal to the Supreme Court of Louisiana was based, clearly included a Fourteenth Amendment claim. > In affirming the conviction, the. State Supreme Court said:.

“As we have pointed out, under the jurisprudence of this court unless there is a showing of prejudice, a conviction will not be set aside simply because officers who are witnesses in the case have the jury under their charge. This court is inclined to look upon the practice with disapproval, however, because in such cases there may be prejudice of a kind exceedingly difficult to establish. The practice should be especially condemned where, for instance, the testimony of the officer and that of the accused are in direct conflict and the jury is called upon to weigh the credibility of each, or where the officer is the principal prosecuting witness.” 244 La., at 454; 152 So. 2d, at 557-558.

While thus casting its judgment in terms of state law, the court’s affirmance of Turner’s conviction necessarily rejected his claim that the conduct of the trial had violated the Fourteenth Amendment. We hold otherwise with respect to the federal constitutional issue, and accordingly reverse the judgment before us.

' This case does not involve the question whether the Fourteenth Amendment requires a State to accord a jury trial to a defendant charged with murder. The question, rather, goes to the nature of the jury trial which the Fourteenth Amendment commands when trial by jury is what the State has purported to accord. We had occasion to consider this basic question less than four years ago in Irvin v. Dowd, 366 U. S. 717. That case did not involve the conduct of the trial itself, for there we found that the conviction. could not. constitutionally stand because the jury had been infected by prejudicé before the actual trial proceedings had commenced. But what the Court said in that case is controlling here:

“In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U. S. 257; Tumey v. Ohio, 273 U. S. 510. ‘A fair trial in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U. S. 133, 136. In the ultimate. analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a . juror must be as ‘indifferent as he stands unswome,’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies.' It was so written into ou,r law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 .. . .” 366 U. S., at 722.

The requirement that a jury’s verdict “must be based upon the evidence developed at the trial” goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury. “The jury is an essential instrumentality — an appendage — of the court, the body ordained to pass upon guilt or innocence. Exercise' of calm and informed judgment by its members is essential to proper enforcement of law.” Sinclair v. United States, 279 U. S. 749, 765. Mr. Justice Holmes stated no more than a truism when he ’ observed that “Any judge who has sat with juries knows that in spite. of forms they are extremely likely to be impregnated by the environing atmosphere.” Frank v. Mangum, 237 U. S. 309, at 349 (dissenting opinion).

- In the constitutional .sense, trial by jury in a. criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury. It is to be emphasized that -the testimony of Vincent Rispone and Hulon Simmons was not confined to some uncontroverted or merely formal aspect of the case for the prosecution. On the contrary, the credibility which the jury attached to the testimony of these two key witnesses must inevitably have determined whether Wayne Turner was to be sent to his death. To be sure, their credibility was assailed by Turner’s counsel through cross-examination in open court. But the potentialities of what went on outside the courtroom during the three days of the trial may well have made these courtroom proceedings little more than a hollow formality. Cf. Rideau v. Louisiana, 373 U. S. 723.

It is true that at the time they testified in open court Rispone and Simmons told the trial judge that they had not talked to the jurors about the case itself. But there is nothing to show what the two deputies discussed in their conversations with the jurors thereafter. And even if it could be assumed that the deputies never did discuss ' the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice' inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution. We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity, as Simmons put it, to renew old friendships and make new acquaintances among the members of the jury.

It would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key prosecution witnesses who were not deputy sheriffs. But the role that Simmons and Rispone played as deputies made the association even more prejudicial. For the relationship was one which could not but foster the jurors’ confidence in those who were their official guardians during the entire period of the trial. And Turner’s fate depended upon how much confidence the jury placed in these two witnesses.

The judgment is reversed and the case is remanded to the Supreme Court of Louisiana for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Clark,

dissenting.

It is with regret that I dissent in this ease. If I were sitting on the Supreme Court of Louisiana I would vote to reverse it and do everything possible to put a stop to the practice of permitting an officer who testifies in a case also to be in charge of the jury.

However, I cannot say that where no prejudice whatever is shown — as is the case here — the practice reaches federal due process proportions. I understand that it has the approval of the highest courts of a number of other jurisdictions and is recognized by Wharton, American Jurisprudence and Corpus Juris Secundum. Indeed, in a similar case from the Tenth Circuit, in which this Court denied certiorari in 1951, the court upheld the conviction on the ground that there was no evidence that a testifying sheriff had acted irregularly in performing as custodian of the jury.

In view of this widespread acceptance of the practice I cannot say that it is violative of the Fourteenth Amendment’s Due Process Clause. Cf. my dissent in Rideau v. Louisiana, 373 U. S. 723 (1963).

       244 La. 447, 152 So. 2d 555.

       376 U. S. 949.

       Out of the presence of the jury, Turner did testify upon the issue' of the voluntariness of his- confession, stating among other things that he had had no sleep and nothing to eat for a period of 48 hours before he confessed, but he was not in custody during much of that period. He also stated that he was not advised of his “legal rights” before he confessed.

       “From the moment of the acceptance of any juror until the rendition of verdict or the entry of a mistrial, as the case may be, the jurors shall be kept together under the charge of an officer in such a way as to be secluded from all outside communication; provided that in cases not capital the judge may, in his discretion, permit the jurors to separate at any time before the actual delivery of his charge.”' La. Rev. Stat. § 15:394.

       In adjourning court after the first day, of trial, the judge told the jury: “Anything that you need you will have to obtain through the Deputy, and any calls that you want to make the Deputies will have to make for you.”

       Rispone testified in part as follows:
      “Q. Have you been assisting the other Deputies during the course of this trial, in retiring the Jury and in caring for their needs? A. I have.
      “Q. As much as any other Deputy on the Sheriff's staff? A. I would say as much:
      “Q. Isn’t it a fact that you have been sitting in this vicinity through the course of the trial? A. That is a fact.
      “Q. Have you spoken at any time' during the course of the trial to any of the Jurors? About anything? A. About anything?
      “By the Counsel: Yes. A. I have.
      “Q. In connection with providing for their needs . . . seeing that they were comfortable . . showing them when to go into'the Jury
      Room et cetera? A. Yes.”
      Simmons testified in part as follows:
      “Q. Dy. Simmons have you been with the Jury during the course of this trial ? A. I have been with them, yes sir.

        “Q. On how many occasions, do you know? A. I can’t answer that.
      ■ “Q. A number of occasions? A. I have been with them or around them throughout the trial.
      “Q. Speaking to them about-.various and sundry matters? A. Yes sir.
      “Q. Have you ever discussed this case with any one of them? A. No sir.
      “Q. But you have spoken to them? A. I have, talked to them, yes sir.
      “Q. Made the acquaintance of some of them? A. I knew most of them.
      “Q. But, you have made new acquaintances? A. I would say yes. One or two that I didn’t know.
      “Q. Do you get along well with the Jury Members? A.. I try to get along with everbody [sic]-.
      “Q. There has been no friction in your relationship during-these last two days? A. Not as far as I know Sir. .
      “Q. Have you stayed here any night and watched over the Jury? A. No sir.
      “Q. Have you had several meals with the Jury? A. I have had at least two meals with them.
      “Q. Sitting at the same table with them? A. That is correct.
      “Q. You have ridden in automobiles with them to and from the restaurant? A. I have.
      “Q. Dy. Simmons you are the Chief Deputy? A. Chief Criminal Deputy, yes sir.
      “Q. As such you have a position superior to the other Deputies on the Staff? In other words, are you considered the boss or the supervisor, or the superior of the other Deputies? A. I make an effort to supervise' them, yes sir.
      “Q. That is your job? A. That is my job.
      “Q. In the conduct of the Jury is it not true that you have been in charge of this? A. Yes sir, I would say so,
      “Q. You are the Chief Deputy Sheriff handling the Jury? A. Yes sir. I designate certain Deputies to do certain things with the-Jury.
      “Q.. And some of the things you do yourself? A. That is correct.”

       After reciting in detail what had been shown as'to Rispone’s and Simmons’ fraternization with the jürors throughout the trial, the bill of exceptions stated “that the presence of state’s witnesses, whether they be deputies or not,, is of itself prejudicial to the constitutional rights of Efefendant and violative of due process of law,”

       The court’s opinion did discuss and seemingly rely on a ease decided by the United States Court of Appeals for the Tenth Circuit, Odell v. Hudspeth, 189 F. 2d 300. In that case, an appeal from a federal district court’s denial of habeas corpus to a prisoner convicted in a Kansas court, it was held on facts apparently similar to those in the present case that there had been no violation of the Fourteenth Amendment.

       It appeals that every state constitution provides for trial by jury. See, e. g., Alaska Const., Art. 1, §11; Idaho Const., Art. 1, §7; Nevada Const., Art. I, § 3; North Dakota Const., Art. I, § 7; see Columbia University Legislative Drafting Research Fund, Index Digest of State Constitutions, 579 (1959).

       The Sixth Amendment provides:-
      “In all criminal prosecutions, the accused shall enj.oy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed (Emphasis supplied.)

       See note 6, supra.

       See notes 5 and 6, supra.

         E. g., Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852 (1940); State v. Hart, 226 N. C. 200, 37 S. E. 2d 487 (1946); Newby v. State, 17 Okla. Cr. R. 291, 188 P. 124 (1920); Underwood v. State, 118 Tex. Cr. R. 348, 39 S. W. 2d 45 (1931).

       5 Wharton’s Criminal Law and Procedure §2109, at 290, n. 2 (Anderson ed. 1957); 53 Am. Jur., Trial, § 858, at 625 ; 23A C. J. S., Criminal Law, § 1352, at 946. See also Ann. Cas. 1912 C, at 882; Ann. Cas. 1917 B, at 254.

        Odell v. Hudspeth, 189 F. 2d 300, cert. denied, 342 U. S. 873 (1951).


source: Caselaw Access Project

author: Mr. Justice Stewart

license: Public Domain

text:
    STANFORD v. TEXAS.
    No. 40.
    Argued November 12, 1964.
    Decided January 18, 1965.

      Maury Maverick, Jr., and John J. McAvoy argued the cause for petitioner. With them on the briefs was ’ Melvin L. Wulf.

      James E. Barlow and Hawthorne Phillips argued the cause for respondent. With them on the brief were Wag-goner Carr, Attorney General of Texas, and Howard M. Fender and Lonny F. Zwiener, Assistant Attorneys General.
   Mr. Justice Stewart

delivered the opinion of the Court.

On December 27, 1963, several Texas law-enforcement officers presented' themselves at the petitioner’s San Antonio home for the purpose of searching it under authority of a. warrant issued by a local magistrate. By the time they had finished, five hours later, they had seized some 2,000 of the petitioner’s books, pamphlets, and papers. The question presented by this case is whether the search and seizure were constitutionally valid.

The warrant was issued under § 9 of Art. 6889-3A of the Revised Civil Statutes of Texas. That Article, enacted in 1955 and known as the Suppression Act, is a sweeping and many-faceted law which, among other things, outlaws the Communist Party and creates various individual criminal offenses, each punishable by imprisonment for up to 20 years. Section 9 authorizes the issuance of a warrant “for the purpose of searching for and seizing any books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings, or any written instruments showing that a person or organization is violating or has violated any provision of this Act.” The section sets forth various procedural requirements, among them that “if the premises to be searched constitute a private, residence, such application for a search warrant shall be accompanied by the affidavits of two credible citizens.”

The application for the warrant was filed in a Bexar County court by the Criminal District Attorney of that County. It recited that the applicant

“. . . has good reason to believe and does believe that a certain place and premises in Bexar County, Texas, described as two white frame houses and one garage, located at the address of 1118 West Rosewood, in the City of San Antonio, Bexar County, Texas, and being'the premises under the control and in charge of John William Stanford, Jr., is a place where books, records, pamphlets, cards, receipts, fists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas are unlawfully possessed and used in violation of Articles 6889-3 and 6889-3A, Revised Civil Statutes of the State of Texas, and that such belief of this officer is founded upon the following information:
“That this officer has received information from two credible persons that the party named above has such books and records in his possession which are books and records of the Communist Party including party lists and dues payments, and in addition other items listed above. That such information is of recent origin and has been confirmed by recent mailings by Stanford on the 12th of December, 1963 of pro-Communist material.”

Attached to the application was an affidavit signed by two Assistant Attorneys General of Texas. The affidavit repeated the words of the application, except that the basis for the affiants’ belief was stated to be as follows:

“Recent mailings by Stanford on the 12th of December, 1963, of material from his home address, such material being identified as pro-Communist material and other information received in the course of investigation that Stanford has in his possession the books and records of the Texas Communist Party.”

The district judge issued a warrant which specifically described the premises to be searched, recited the allegations of the applicant’s and affiants’ belief that the premises were “a place where books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas are unlawfully possessed and used in violation of Article 6889-3 and Article 6889-3A, Revised Civil Statutes of the State of Texas,” and ordered the executing officers (<to enter immediately and search the above described premises for such items listed above unlawfully possessed in violation of Article 6889-3 and Article 6889-3A, Revised Civil Statutes, State of .Texas, and to take possession of same.”

The warrant was executed by the two Assistant Attorneys General who had signed the affidavit, accompanied by a number of county officers. They went to the place described in the warrant, which was where the petitioner resided and carried on a mail order book business under the trade name “All Points of View.” The petitioner was not at home when the officers arrived, but his wife was, and she let the officers in after one of them had read the warrant to her.

After some delay occasioned by an unsuccessful effort to locate the petitioner in another part of town, the search began. Under the general supervision of one of the Assistant Attorneys General the officers spent more than four hours in gathering up about half the books they found in the house. Most of the material they took came from the stock in trade, of the petitioner’s business, but they took a number of books from his personal library as well. The books and pamphlets taken comprised approximately 300 separate titles, in addition to numerous issues of several different periodicals. Among the books taken were works by such diverse writers as Karl Marx, Jean Paul Sartre, Theodore Draper, Fidel Castro, Earl Browder, Pope John XXIII, and Me. Justice Hugo L. Black; The officers also took possession of many of the petitioner’s private documents and papers, including his marriage certificate, his insurance policies, his household bills and receipts, and files of his personal correspondence. All this material was packed into 14 cartons and hauled off to an investigator’s office in the county courthouse. The officers did not find any “records of the Communist Party” or any “party lists and dues payments.”

The petitioner filed a motion with the magistrate who had issued the warrant, asking him to annul the warrant and order the return of all the property which had been seized under it. The motion asserted several federal constitutional claims. After a hearing the motion was denied without opinion. This order of denial was, as the parties agree, final and not appealable or otherwise reviewable under Texas law. See Ex parte Wolfson, 127 Tex. Cr. R. 277, 75 S. W. 2d 440. Accordingly, we granted certiorari, 377 U. S. 989. See Thompson v. City of Louisville, 362 U. S. 199, 202-203.

The petitioner has attacked the constitutional validity of this search and seizure upon several grounds. We rest our decision upon just one, without pausing to assess the substantiality of the others. For we think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid — a general warrant. Therefore, even accepting the premise that some or even all of the substantive provisions of Articles 6889-3 and 6889-3A of the Revised Civil Statutes of Texas are constitutional and have not' been pre-empted by federal law, even accepting the premise that the warrant sufficiently specified the offense believed to have been committed and was issued., upon probable cause, the magistrate’s order denying the motion to annul the warrant and return the property must nonetheless be set aside.

It is now settled that the fundamental protections of the Fourth Amendment are guaranteed by the Fourteenth Amendment' against invasion by the States. Wolf v. Colorado, 338 U S. 25, 27; Mapp v. Ohio, 367 U. S. 643; Ker v. California, 374 U. S. 23. The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be-searched, and the persons or things to be seized.” (Emphasis supplied.)

These words are precise and clear. They reflect the. determination of those who wrote the Bill of Rights that the people of this new Nation should forever “be secure in their persons, houses, papers, and effects” from intrusion and seizure by officers acting under the unbridled authority of a general warrant. Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists. •. The hated writs of assistance had given customs officials blanket authority to search where they pleased for goods imported in violation of the British tax laws. They weré denounced by James Otis as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.” The historic occasion of that denunciation, in 1761 at Boston, has been characterizéd as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. ‘Then and there,’ said John Adams, ‘then and there Was the first scene of the first act of opposition to the arbitrary claims of -Great Britain. Then and there the child Independence was born.’ ” Boyd v. United States, 116 U. S. 616, 625.

But while the Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance, its roots go far deeper. Its adoption in the Constitution of this new Nation reflected the culmination in England a few years earlier of a struggle against oppression which had endured for centuries. The story of that struggle has been fully chronicled' in the pages of this Court’s report?, and it would be a needless exercise in pedantry to review again the detailed history of the use of general warrants as instruments of oppression-from the time of the Tudors, through the Star Chamber, the Long Parliament, the Restoration, and beyond.

What is significant to note is that this history is largely a history of conflict between the Crown and the press. It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and eighteenth centuries. In Tudor England officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent, both Catholic and Puritan. 'In later years warrants were sometimes more specific in content, but they typically authorized the arrest and search of the premises of all persons connected with the publication of a particular libel, or the arrest and seizure of all the papers of a named person thought to be connected with a libel.

It was in the context of the latter kinds of general warrants that the battle for individual liberty and privacy was finally won — in the landmark cases of Wilkes v. Wood and Entick v. Carrington. The Wilkes case arose out of the Crown’s attempt to stifle a publication called The North Briton, anonymously published by John Wilkes, then a member of Parliament — particularly issue No. 45 of that journal. Lord Halifax, as Secretary of State, issued a warrant ordering four of the King’s messengers “to make strict and diligent search for the authors, printers, and publishers of a seditious and treasonable paper, entitled, The North Briton, No. 45, . . . and them, or any of them, having found, to apprehend and .seize, together with their papers.” “Armed with thbir roving commission, they set forth in quest of unknown offenders; and unable to take evidence, listened to rumors, idle tales, and curious guesses. They held in their hands the liberty of every man whom they were pleased to suspect.” Holding that this was “a ridiculous warrant against the whole English nation,” the Court of Common Pleas awarded Wilkes damages against the Secretary of State. John Entick was the author of a publication called Monitor or British Freeholder. A warrant was issued specifically naming him and that publication, and authorizing his arrest for seditious libel and the seizure of his “books and papers.” The King’s messengers executing the warrant ransacked Entick’s home for four hours and carted away quantities of his books and papers. In an opinion which this Court has characterized as a wellspring of the rights now protected by the Fourth Amendment, Lord Camden declared the warrant to be unlawful. “This power,” he-said, “so assumed by the secretary of state is an execution upon all the party’s papers, in the first instance. His house is rifled; his most valuable secrets are taken,out of his possession, before the paper for which he is charged is found to be criminal by any competent jurisdiction, and before he is convicted either of writing, publishing, or being concerned in the paper.” Entick v. Carrington. Thereafter, the House of Commons passed two. resolutions condemning general warrants, the first limiting its condemnation to their use in cases of libel, and the second condemning their use generally.

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 own 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, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but ‘conscience and human dignity and freedom of expression as well.’ ” Frank v. Maryland, 359 U. S. 360, 376 (dissenting opinion).

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. See Marcus v. Search Warrant, 367 U. S. 717; A Quantity of Books v. Kansas, 378 U. S. 205. No less a standard could be faithful to First Amendment freedoms. The constitutional impossibility of leaving the protection of those freedoms to the whim of the officers charged with executing the warrant is dramatically underscored by what the officers saw fit to seize under the warrant in this case.

“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. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U. S. 192, at 196. We need not decide in the present case whether the description of the things to be seized would have been too generalized to pass constitutional muster, had the things been weapons, narcotics or “cases of whiskey.” See Steele v. United States No. 1, 267 U. S. 498, 504. The point is that it was not any contraband of that kind which was ordered to be seized, but literary material — “book^, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party of Texas, and the operations of the Communist Party in Texas.” The indiscriminate sweep of that language is constitutionally intolerable. To hold otherwise would be false to the terms of the Fourth Amendment, false to its meaning, and false to its history.

Two centuries have passed since the historic decision in Entick v. Carrington, almost to the. very day. The world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord Camden might find hard to understand. But the Fourth and Fourteenth Amendments guarantee to John Stanford that no official of the State shall ransack his home and seize his books and papers under the unbridled authority of a general warrant — no less than the law 200 years ago shielded John Entick from the messengers of the King.

The order is vacated and the cause remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

       Article 6889-3 of the Revised Civil Statutes of Texas, enacted in 1951 and known as the Texas Communist Control Law, provides, among other things, that, various people and organizations defined by the law who fail to register with the Téxas Department of Public Safety are guilty of criminal offenses punishable by imprisonment of up to 10 years.

       The petitioner had obtained a certificate to transact business under this trade name in accordance with the Texas “Assumed Name Law.”

       See Pennsylvania v. Nelson, 350 U. S. 497.

       See Aguilar v. Texas, 378 U. S. 108.

       See Marcus v. Search Warrant, 367 U. S. 717, 724—729; Frank v. Maryland, 359 U. S. 360, 363-366 and 376-377 (dissenting opinion); see also Boyd v. United States, 116 U. S. 616.

       See Siebert, Freedom of the Press in England, 1476-1776, pp. 83, 85-86, 97.

       See Siebert, supra, pp. 374-376.

       19 How. St. Tr. 1153 (1763).

       19 How. St. Tr. 1029 (1765).

       See Lasson, Development of the Fourth Amendment, p. 43.

       II May’s Constitutional History of England, 246 (Am. ed. 1864).

        Id., at 247.

       “As every American statesman, during our revolutionary and formative period as a nation, was' undoubtedly familiar with this monument of English freedom, and considered it as the true and ultimate expression of constitutional law, it may be confidently asserted that its propositions were in the minds of those who framed the Fourth Amendment to the Constitution ...” Boyd v. United States, 116 U. S. 616, at 626-627.

       19 How. St. Tr., at 1064.

       See XVI Hansard’s Parliamentary History of England 207 et seq.

       The word “books” in the context of a phrase like “books and records” has, of course, a quite different meaning. A “book” which is no more than a ledger of ah unlawful enterprise thus might stand on a quite different constitutional footing from the books involved in the present case. See Marron v. United States, 275 U. S. 192, 198-199. And in some situations books even of the kind seized here might, -for purposes of the Fourth Amendment, be constitutionally indistinguishable from other' goods — e. g., if the books were stolen' property.

       See pp. 479-480, supra.

       “The authority to the police officers under the warrants issued in this case . . . poses problems not raised by . . . warrants to seize ‘gambling implements’ and ‘all intoxicating liquors’.... For the use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications.” Marcus v. Search Warrant, 367 U. S. 717, at 731.


author: Mr. Justice White Mr. Justice Stewart,

text:
    JANKOVICH et al., doing business as CALUMET AVIATION CO. v. INDIANA TOLL ROAD COMMISSION.
    No. 60.
    Argued December 10, 1964.
    Decided January 18, 1965.

      Bernard Dunau argued the cause for petitioners. With him on the briefs were 8traley Thorpe, Robert C. Lester and Rita C. Davidson.

      Hugh B. Cox argued the cause for respondent. With him on the brief were Charles A. Miller, Paul J. DeVault and Philip E. Byron, Jr.

    Briefs of amici curiae, urging reversal, were filed by Solicitor General Cox and Roger P. Marquis for the United States; by Edwin K. Steers, Attorney General of Indiana, Harold L. Folley, Deputy Attorney General, and John J. Dillon for the Aeronautics Commission of Indiana et al.; by Roger Arnebergh, Alexander G. Brown, J. Elliott Drinard, Sidney Goldstein, Daniel B. Goldberg, Henry P. Kucera, John C. Melaniphy, Robert E. Michal-ski, Thomas J. Neenan, John W. Sholenberger, Barnett I. Shur, Fred G. Stickel III, Charles S. Rhyne, Brice W. Rhyne and Alfred,J. Tighe, Jr., for the National Institute of Municipal Law Officers; and by John E. Stephen and George S. Laphan, Jr., for the Air Transport Association.
   Mr. Justice White

delivered the opinion of the Court.

Pursuant to a 20-year lease with the City of Gary, Indiana, petitioners are. the operators of Gary Municipal Airport, one of the airports included in the National Airport Plan. They seek review of a decision invalidating the city’s airport zoning ordinance, which, with regard to buildings and other structures in the immediate vicinity of the airport, prescribes height limitations based upon a 40-to-l glide angle for approaching aircraft (i. e., at a distance of 40 feet from the end of the planned runway, structures may not exceed one foot in height). After passage of the'ordinance, respondent,, the Indiana Toll Road Commission, constructed a toll road parallel to the south side of the airport and 443 feet from the end of the. planned runway. Contending that at that location the ordinance prescribes a maximum height of 18.08 feet above the surrounding land and that respondent’s toll road (which is raised 29.8 feet above the surrounding land surface) violates the ordinance, petitioners brought suit in the Indiana Courts for injunctive relief and damages. Although it refused to grant an injunction, the trial court awarded petitioners damages of $164,000 and costs. That judgment was reversed by the Supreme Court of Indiana, which concluded that “the ordinance purported to authorize an unlawful and unconstitutional appropriation of property rights without payment of compensation.” 244 Ind. 574, 584, 193 N. E. 2d 237, 242. Because it appeared that the. case involved the validity of airport zoning regulations under the Fourteenth Amendment of the Constitution of the United States and therefore presented important questions affecting the National Airport Plan not previously considered by this Court, we granted certiorari. 377 U. S. 942.

Respondent suggests, however, that we are without jurisdiction to review the judgment of the Supreme Court of Indiana because that judgment was based on an independent and adequate state ground. It is undoubtedly

“ ‘the settled rule that where the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, our jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the judgment.’ Fox Film Corp. v. Muller, 296 U. S. 207, 210.” Cramp v. Board of Public Instruction, 368 U. S. 278, 281.

As we have concluded that respondent is correct in its contention that the judgment sought to be reviewed is supported by an independent and adequate state ground, we dismiss the writ of certiorari as improvidently granted.

In the Indiana Supreme Court respondent relied on the just compensation requirement of the.Indiana Constitution as well as on the Due Process Clause of the Fourteenth Amendment. The Indiana Supreme Court stated the issue for decision as whether “the ordinance purport [s] to effect a taking of private property for public use in violation of the provisions of Article 1, § 21 of the Indiana Constitution and the Fourteenth Amendment to the Constitution of the United States.” 244 Ind., at 577, 193 N. E. 2d, at 238. In resolving that issue, however, the Indiana Supreme Court, quite understandably, did not analyze separately the effect of the two provisions but considered them together. From that fact petitioners would have us. conclude that the state ground of decision — invalidity of the zoning ordinance under Art. 1, § 21, of the Indiana Constitution — “is so interwoven with the other as not to be an independent matter . . . .” Enterprise Irrig. District v. Canal Co., 243 U. S. 157, 164 (dictum). (Emphasis added.) We cannot agree.

Quoting both Art. 1, § 21, of the Indiana Constitution and § 1 of the Fourteenth Amendment and citing both a decision of this Court, Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, and one of its own decisions, General Outdoor Advertising Co. v. City of Indianapolis, 202 Ind. 85, 172 N. E. 309 (1930), the Indiana Supreme Court began its analysis with the proposition that private property may not be taken for public use without compensation. Two issues were singled out as determinative of whether the ordinance under consideration violated that constitutional protection: “(1) Whether air space above land is a constitutionally protected property right, and (2) whether in the instant case there has been a constitutionally proscribed taking.” 244 Ind., at 578, 193 N. E. 2d, at 239.

In holding that landowners did have a protected property interest in the airspace above their land, the court first discussed an Indiana statute, Acts 1927, c. 43, § 3, Burns Ind. Stat. Ann. § 14-103 (1950 Repl.) (“The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, . . and a prior interpretation, of state law, Capitol Airways, Inc. v. Indianapolis P. & L. Co., 215 Ind. 462, 466, 18 N. E. 2d 776, 778 (1939) (airport operator has no right to damages from public utility whose power .line obstructs flight into and out of airport). In addition, the Indiana Supreme Court cited and discussed two cases of this Court holding low altitude overflights to constitute a taking of an air easement requiring just compensation under the United States Constitution. Griggs v. Allegheny County, 369 U. S. 84; United States v. Causby, 328 U. S. 256. But nothing in the court’s opinion suggests that its conclusion that “[i]n the light of the above authorities . . . the reasonable and ordinary use of air space above land is a property right which cannot be taken without the payment of compensation,” 244 Ind., at 581, 193 N. E. 2d, at 240, flows from a federal rather than a state source. Indeed, the organization and language of the opinion indicates that, at the least, state law is an equal ground of decision.

The discussion of the second question — whether the ordinance effects a proscribed taking, as opposed to a reasonable regulation under the police power — similarly interlaces Indiana and federal decisions, as well as decisions of other state courts. Again there is no intimation that the conclusion that the ordinance entails “an unlawful and unconstitutional appropriation of property rights without payment of compensation,” 244 Ind., at 584, 193 N. E. 2d, at 242, is based less forcefully on the Indiana Constitution than on the Fourteenth Amendment.

In such circumstances, even though a state court’s opinion relies on similar provisions in both the State and Federal Constitutions, the state constitutional provision has been held to provide an independent and adequate ground of decision depriving this Court of jurisdiction to review the state judgment. New York City v. Central Savings Bank, 306 U. S. 661, explained in Minnesota v. National Tea Co., 309 U. S. 551, 556-557; Lynch v. New York ex rel. Pierson, 293 U. S. 52. This is not á case like those cited by petitioners where the lower court opinion as a whole “leaves the impression that the court probably felt constrained to rule as it did because of [decisions applying the Fourteenth Amendment],” Minnesota v. National Tea Co., supra, at 554-555, or “because it felt under compulsion of federal law as enunciated by this Court so to hold,” Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5, with the result that the state and federal grounds are “so interwoven that we are unable to conclude that the judgment rests upon an independent interpretation of the state law,” State Tax Comm’n v. Van Cott, 306 U. S. 511, 514. See also Perkins v. Benguet Mining Co., 342 U. S. 437, 443, 448-449; Enterprise Irrig. District v. Canal Co., supra. Under our settled decisions the state ground in this case must be regarded as an independent and adequate ground of decision, and we so hold.

Petitioners nevertheless contend that the state ground of decision is not adequate because it is inconsistent with the policy of the Federal Airport Act, 60 Stat. 170, as amended, 49 U. S. C. § 1101 et seq. (1958 ed. and Supp. V), and therefore founders on the Supremacy Clause. The premises underlying petitioners’ argument are that the Federal Airport Act is predicated on a determination by Congress that airport zoning is essential to assure compatible land use in the vicinity of airports without prohibitive cost and that the decision of the Indiana Supreme Court in this case signifies the total nullification of airport zoning. We think the second premise is* unfounded. The Indiana Supreme ‘Court had before it a case in which the effect of the ordinance was to establish a maximum height of 18 feet for structures on respondent’s land. Although it recognized that zoning regulations may be upheld as a reasonable exercise of the police power “where the owner of property is merely restricted in the use and enjoyment of his property,” 244 Ind., at 581, 193 N. E. 2d, at 240-241, the court held that a taking requiring compensation — rather than mere regulation — was effected here because “the City of Gary has attempted, by the passage of the ordinance under consideration, to take and appropriate to its own use the ordinarily usable air space of property adjacent to the Gary Airport . . . .” 244 Ind., at 582, 193 N. E. 2d, at 241. (Emphasis added.) As we read the opinion of the Indiana Supreme Court, it certainly does not portend the wholesale invalidation of all airport • zoning laws. And no substantial claim can be made that Congress intended to preclude such an application of state law as is involved in the present case. On March 11 of last year Congress did indicate its interest in furthering airport zoning when it amended § 11 of the Federal Airport Act to require as an additional condition of approval of an airport project seeking federal aid that:

“(4) appropriate action, including the adoption of zoning laws, has been or will be taken, to the extent reasonable, to restrict the use of land adjacent to or in the immediate vicinity of the airport to activities and purposes compatible with normal airport operations including landing and take-off of aircraft.” P. L. 88-280, 1964 U. S. Code Cong. & Adm. News 514. (Emphasis added.)

That requirement, however, is presently implemented by the Federal Aviation Agency by obtaining an assurance from the project sponsor that he will prevent the construction of obstructions to air navigation, “either by the acquisition and retention of easements or other interests in or rights for the use of land or airspace or by the adoption and enforcement of zoning regulations.” Form FAA-1624, Part III 7, Sponsor Assurances. And amounts expended to acquire “land or interests therein or easements through or other interests in air space” are among “the allowable project costs” that may be recompensed under § 13 of the Federal Airport Act, 60 Stat. 177, as amended, 49 U. S. C. § 1112 (a) (2) (1958 ed., Supp. V),. Appearing as amicus curiae, the United States affirms that “[t]here is no basis for a contention that federal law removes State law restrictions on the exercise of the zoning power or defeats any State law right to compensation.” We conclude that the decision of the Supreme Court of Indiana in this case is compatible with the congressional policy embodied in the Federal Airport Act.

The writ of certiorari is dismissed as improvidently granted.

It is so ordered.

Mr. Justice Stewart,

with whom Mr. Justice Black joins,

dissenting.

Although the.opinion of the Supreme Court of Indiana relies on state and federal precedents, I can find nowhere in its opinion any clear indication of whether that court’s ultimate conclusion is based upon the Federal Constitution, the Constitution of Indiana, or both. Therefore, I think the posture of this case is identical to that presented in Minnesota v. National Tea Co., 309 U. S. 551, and that we should, as the Court did there, vacate the judgment of the State Supreme Court and remand the cause for further proceedings.

“It is important that this Court not indulge in needless dissertations on constitutional law. It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a. determination by this Court of the validity under the federal constitu-' tion of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases. Only then can we ascertain whether or not our jurisdiction to review should be invoked. Only by that procedure can the responsibility for striking down or upholding state legislation be fairly placed. . For no other course assures that important federal issues, such as have been argued here, will reach this Court for adjudication; that state courts will not be the final arbiters of important issues under the federal constitution; and that we will not encroach on the constitutional jurisdiction of the states. This is not a mere technical rule nor a rule for our convenience. It touches the división of authority between state courts and this Court and is of equal importance to each. Only by such explicitness can the highest courts of the states and this Court keep within the bounds of their respective jurisdictions.” 309 U. S., at 557.

       Art. 1, §21, Ind. Const.:
      “No man’s particular services shall be demanded, without just compensation. No,man’s property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.”

       Petitioners’ pre-emption argument is not pressed in their petition for certiorari as a separate issue for review but only as bearing on the adequacy of the state ground of decision.. Nor have petitioners demonstrated that this issue was presented to the Indiana Supreme Court. In this regard petitioners quote that court’s statement that “[t]he federal government has recognized the requirement that easements for the glide angle needed for landing and take-off must be .acquired by condemnation proceedings and payment of just compensation,” 244 Ind., at 584, 193 N. E. 2d, at 242, but that conclusion was based on two cases condemning easements over property adjoining federal bases that were decided several years before the recent amendment to the Federal Airport Act, United States v. 48.10 Acres of Land, 144 F. Supp. 258 (D. C. S. D. N. Y. 1956); United States v. 443 Acres of Land, 137 F. Supp. 567 (D. C. N. D. Tex. 1956), not on any assessment of the policy of that Act. These circumstances of course bar petitioners from seeking reversal of the judgment below on the basis of their pre-emption claim, and it is therefore questionable whether petitioners may advance the same argument under the guise of an attack on the adequacy of the state ground of decision. We need not consider this problem further, however, because, as is explained in the text, infra, the pre-emption claim is insubstantial.

       Needless to say, we express no opinion in this case regarding the validity under the United States Constitution of the city’s airport zoning ordinance.