author: Me. Justice Rehnquist Mr. Justice Brennan, Mr. Justice Stevens,

text:
    FITZPATRICK et al. v. BITZER, CHAIRMAN, STATE EMPLOYEES’ RETIREMENT COMMISSION et al.
    No. 75-251.
    Argued April 20-21, 1976
    Decided June 28, 1976

      RbhNquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Marshall, BlackmüN, and Powell, JJ., joined. BreNNAN, J., post, p. 457, and SteveNS, J., post, p. 458, filed opinions concurring in the judgment.

      Paul W. Orth argued the cause for petitioners in No. 75-251 and for respondents in No. 75-283. With him on the brief in No. 75-251 were Austin Carey, Jr., Edward Gallant, Jack Greenberg, and Eric Schnapper. With him on the brief in No. 75-283 were Messrs. Carey and Gallant.

      Sidney D. Giber, Assistant Attorney General of Connecticut, argued the cause for respondents in No. 75-251 and for petitioners in No. 75-283. With him on the briefs were Carl R. Ajello, Attorney General, and Bernard F. McGovern, Jr., Assistant Attorney General.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae in both cases. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, and Walter W. Barnett.

      Together with No. 75-283, Bitzer, Chairman, State Employees’ Retirement Commission, et al. v. Matthews et al., also on certiorari to the same court.

      Briefs of amici curiae urging reversal in No. 75-251 and affirmance in No. 75-283 were filed by Michael H. Gottesman,

        Armmd Derfner, Robert M. Weinberg, Albert E. Jenner, Paul R. Dimond, William E. Caldwell, Nathaniel R. Jones, Vilma Martinez, Joel Contreras, Morris J. Bailer, Melvin L. Wulf, and E. Richard Larson for the Lawyers Committee for Civil Rights under Law et al. Gary J. Greenberg filed a brief for Alan Rabinovitch as amicus curiae urging reversal in No. 75-251. Briefs of amici curiae urging reversal in No. 75-283 were filed by Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, N. Eugene Hill and Edward P. O’Brien, Assistant Attorneys General, Edmund E. White, Richard M. Skinner, Gloria F. DeHart, and Patrick G. Golden, Deputy Attorneys General, for the State of California; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Lillian .Z. Cohen, Assistant Attorney General, for the State of New York; and by Robert P. Kane, Attorney General, and Lawrence Silver and Melvin R. Shuster, Deputy Attorneys General, for the Commonwealth of Pennsylvania, joined by the Attorneys General for their respective States as follows: Robert L. Shevin of Florida, Arthur K. Bolton of Georgia, Ronald Amemiya of Hawaii, Theodore L. Sendak of Indiana, Richard C. Turner of Iowa, Francis B. Burch of Maryland, John C. Danforth of Missouri, Paul L. Douglas of Nebraska, Robert List of Nevada, David H. Souter of New Hampshire, William F. Hyland of New Jersey, Rufus L. Edmisten of North Carolina, Allen I. Olson of North Dakota, William J. Brown of Ohio, Daniel R. McLeod of South Carolina, R. A. Ashley, Jr., of Tennessee, John L. Hill of Texas, Andrew P. Miller of Virginia, and Chauncey H. Browning, Jr., of West Virigina. Jack Greenberg and Eric Schnapper filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging af-firmance in No. 75-283.

   Me. Justice Rehnquist

delivered the opinion of the Court.

In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under § 5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor of a private individual against a state government found to have subjected that person to employment discrimination on the basis of “race, color, religion, sex, or national origin/' The principal question presented by these cases is whether, as against the shield of sovereign immunity afforded the State by the Eleventh Amendment, Edelman v. Jordan, 415 U. S. 651 (1974), Congress has the power to authorize federal courts to enter such an award against the State as a means of enforcing the substantive guarantees of the Fourteenth Amendment. The Court of Appeals for the Second Circuit held that the effect of our decision in Edelman was to foreclose Congress’ power. We granted certiorari to resolve this important constitutional question. 423 IT. S. 1031 (1975). We reverse.

I

Petitioners in No. 75-251 sued in the United States District Court for the District of Connecticut on behalf of all present and retired male employees of the State of Connecticut. Their amended complaint asserted, inter alia, that certain provisions in the State’s statutory retirement benefit plan discriminated against them because of their sex, and therefore contravened Title VII of the 1964 Act, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. IV). Title VII, which originally did not include state and local govern-merits, had in the interim been amended to bring the States within its purview.

The District Court held that the Connecticut State Employees Retirement Act violated Title VII's prohibition against sex-based employment discrimination. 390 F. Supp. 278, 285-288 (1974). It entered prospective injunctive relief in petitioners’ favor against respondent state officials. Petitioners also sought an award of retroactive retirement benefits as compensation for losses caused by the State's discrimination, as well as “a reasonable attorney's fee as part of the costs.” But the District Court held that both would constitute recovery of money damages from the State’s treasury, and were therefore precluded by the Eleventh Amendment and by this Court’s decision in Edelman v. Jordan, supra.

On petitioners’ appeal, the Court of Appeals affirmed in part and reversed in part. It agreed with the District Court that the action, “insofar as it seeks damages, is in essence against the state and as such is subject to the Eleventh Amendment.” 519 P. 2d 559, 565 (1975). The Court of Appeals also found that under the 1972 Amendments to Title VII, “Congress intended to authorize a private suit for backpay by state employees against the state.” Id., at 568. Notwithstanding this statutory authority, the Court of Appeals affirmed the District Court and held that under Edelman a “private federal action for retroactive damages” is not a “constitutionally permissible method of enforcing Fourteenth Amendment rights.” 519 F. 2d, at 569. It reversed the District Court and remanded as to attorneys’ fees, however, reasoning that such an award would have only an “ancillary effect” on the state treasury of the kind permitted under Edelman, supra, at 667-668. 519 F. 2d, at 571. The petition filed here by the state employees in No. 75-251 contends that Congress does possess the constitutional power under § 5 of the Fourteenth Amendment to authorize their Title VII damages action against the State. The state officials’ cross-petition, No. 75-283, argues that under Edelman the Eleventh Amendment bars any award of attorneys’ fees here because it would be paid out of the state treasury.

II

In Edelman this Court held that monetary relief awarded by the District Court to welfare plaintiffs, by reason of wrongful denial of benefits which had occurred previous to the entry of the District Court’s determination of their wrongfulness, violated the Eleventh Amendment. Such an award was found to be indistinguishable from a monetary award against the State itself which had been prohibited in Ford Motor Co. v. Department of Treasury, 323 U. S. 459, 464 (1945). It was therefore controlled by that ease rather than by Ex parte Young, 209 U. S. 123 (1908), which permitted suits against state officials to obtain prospective relief against violations of the Fourteenth Amendment.

Edelman went on to hold that the plaintiffs in that case could not avail themselves of the doctrine of waiver expounded in cases such as Parden v. Terminal R. Co., 377 U. S. 184 (1964), and Employees v. Missouri Public Health Dept., 411 U. S. 279 (1973), because the necessary predicate for that doctrine was congressional intent to abrogate the immunity conferred by the Eleventh Amendment. We concluded that none of the statutes relied upon by plaintiffs in Edelman contained any authorization by Congress to join a State as defendant. The Civil Rights Act of 1871, 42 U. S. C. § 1983, had been held in Monroe v. Pape, 365 U. S. 167, 187-191 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant. The provisions of the Social Security Act relied upon by plaintiffs were held by their terms not to “authorize suit against anyone,” 415 U. S., at 674, and they, too, were incapable of supplying the predicate for a claim of waiver on the part of the State.

All parties in the instant litigation agree with the Court of Appeals that the suit for retroactive benefits by the petitioners is in fact indistinguishable from that sought to be maintained in Edelman, since what is sought here is a damages award payable to a private party from the state treasury.

Our analysis begins where Edelman ended, for in this Title VII case the “threshold fact of congressional authorization,” id., at 672, to sue the State as employer is clearly present. This is, of course, the prerequisite found present in Farden and wanting in Employees. We are aware of the factual differences between the type of state activity involved in Farden and that involved in the present case, but we do not think that difference is material for our purposes. The congressional authorization involved in Parden was based on the power of Congress under the Commerce Clause; here, however, the Eleventh Amendment defense is asserted in the context of legislation passed pursuant to Congress’ authority under § 5 of the Fourteenth Amendment.

As ratified by the States after the Civil War, that Amendment quite clearly contemplates limitations on their authority. In relevant part, it provides:

“Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The substantive provisions are by express terms directed at the States. Impressed upon them by those provisions are duties with respect to their treatment of private individuals. Standing behind the imperatives is Congress’ power to “enforce” them “by appropriate legislation.”

The impact of the Fourteenth Amendment upon the relationship between the Federal Government and the States, and the reach of congressional power under § 5, were examined at length by this Court in Ex 'parte Virginia, 100 U. S. 339 (1880). A state judge had been arrested and indicted under a federal criminal statute prohibiting the exclusion on the basis of race of any citizen from, service as a juror in a state court. The judge claimed that the statute was beyond Congress’ power to enact under either the Thirteenth or the Fourteenth Amendment. The Court first observed that these Amendments “were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress.” Id., at 345. It then addressed the relationship between the language of § 5 and the substantive provisions of the Fourteenth Amendment:

“The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. Such enforcement is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact. ... It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights. This is true in the general. But in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent. Nor can she deny to the general government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted. Indeed, every addition of power to the general government involves a corresponding diminution of the governmental powers of the States. It is carved out of them.
“The argument in support of the petition for a habeas corpus ignores entirely the power conferred upon Congress by the Fourteenth Amendment. Were it not for the fifth section of that amendment, there might be room for argument that the first section is only declaratory of the moral duty of the State .... But the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment. It is but a limited authority, true, extending only to a single class of cases; but within its limits it is complete." Id., at 346-348.

Ex parte Virginia’s early recognition of this shift in the federal-state balance has been carried forward by more recent decisions of this Court. See, e: g., South Carolina v. Katsenbach, 383 U. S. 301, 308 (1966); Mitchum v. Foster, 407 U. S. 225, 238-239 (1972).

There can be no doubt that this line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States. The legislation considered in each case was grounded on the expansion of Congress’ powers— with the corresponding diminution of state sovereignty— found to be intended by the Framers and made part of the Constitution upon the States’ ratification of those Amendments, a phenomenon aptly described as a “carv[ing] out” in Ex parte Virginia, supra, at 346.

It is true that none of these previous cases presented the question of the relationship between- the Eleventh Amendment and the enforcement power granted to Congress under § 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U. S. 1 (1890), are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce “by appropriate legislation” the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority. We think that Congress may, in determining what is “appropriate legislation” for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts. See Edelman v. Jordan, 415 U. S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945).

Ill

In No. 75-283, the state officials contest the Court of Appeals’ conclusion that an award of attorneys’ fees in this case would under Edelman have only an “ancillary effect” on the state treasury and could therefore be permitted as falling outside the Eleventh Amendment under the doctrine of Ex parte Young, 209 U. S. 123 (1908). 415 U. S., at 667-668. We need not address this question, since, given the express congressional authority for such an award in a case brought under Title VII, it follows necessarily from our holding in No. 75-251 that Congress’ exercise of power in this respect is also not barred by the Eleventh Amendment. We therefore affirm the Court of Appeals’ judgment in No. 75-283 on this basis.

The judgment in No. 75-251 is

Reversed.

The judgment in No. 75-283 is

Affirmed.

Mr. Justice Brennan,

concurring in the judgment.

This suit was brought by present and retired employees of the State of Connecticut against the State Treasurer, the State Comptroller, and the Chairman of the State Employees’ Retirement Commission. In that circumstance, Connecticut may not invoke the Eleventh Amendment, since that Amendment bars only federal-court suits against States by citizens of other States. Rather, the question is whether Connecticut may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to a claim for damages under Title VII. In my view Connecticut may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U. S. 279, 298 (1973): The States surrendered that immunity, in Hamilton’s words, “in the plan of the Convention” that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id., at 319 n. 7; Edelman v. Jordan, 415 U. S. 651, 687 (1974) (Brennan, J., dissenting); Parden v. Terminal R. Co., 377 U. S. 184 (1964). Congressional authority to enact the provisions of Title VII at issue in this case is found in the Commerce Clause, Art. I, § 8, cl. 3, and in § 5 of the Fourteenth Amendment, two of the enumerated powers granted Congress in the Constitution. Cf. Oregon v. Mitchell, 400 U. S. 112, 131-134 (1970) (Black, J.); id., at 135-150 (Douglas, J.); id., at 216-217 (Harlan, J.); id., at 236-281 (Brennan, White, and Marshall, JJ.) ; id., at 282-284 (Stewart, J.); Katzenbach v. Morgan, 384 U. S. 641, 651 (1966). I remain of the opinion that “because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver.” Employees v. Missouri Public Health Dept., supra, at 300.

I therefore concur in the judgment of the Court.

Mr. Justice Stevens,

concurring in the judgment.

In my opinion the commerce power is broad enough to support federal legislation regulating the terms and conditions of state employment and, therefore, provides the necessary support for the 1972 Amendments to Title VII, even though Congress expressly relied on § 5 of the Fourteenth Amendment. But I do not believe plaintiffs proved a violation of the Fourteenth Amendment, and because I am not sure that the 1972 Amendments were “needed to secure the guarantees of the Fourteenth Amendment,” see Katzenbach v. Morgan, 384 U. S. 641, 651, I question whether § 5 of that Amendment is an adequate reply to Connecticut’s Eleventh Amendment defense. I believe the defense should be rejected for a different reason.

Even if the Eleventh Amendment does cover a citizen’s suit against his own State, it does not bar an action against state officers enforcing an invalid statute, Ex parte Young, 209 U. S. 123, 159-160. Since the Connecticut pension law has been held to be invalid, at least in part, Ex parte Young makes it clear that the federal court properly acquired jurisdiction of the proceeding.

The Eleventh Amendment issue presented is whether the court has power to enter a judgment payable immediately out of trust assets which subsequently would be reimbursed from the general revenues of the State. Although I have great difficulty with a construction of the Eleventh Amendment which acknowledges the federal court’s jurisdiction of a case and merely restricts the kind of relief the federal court may grant, I must recognize that it has been so construed in Edelman v. Jordan, 415 TJ. S. 651, and that the language of that opinion would seem to cover this case. However, its actual holding appears to be limited to the situation in which the award is payable directly from state funds and “not as a necessary consequence of compliance in the future” with a substantive determination. Id., at 668.

The holding in Edelman does not necessarily require the same result in this case; this award will not be paid directly from the state treasury, but rather from two separate and independent pension funds. The fact that the State will have to increase its future payments into the funds as a consequence of this award does not, in my opinion, sufficiently distinguish this case from other cases in which a State may be required to conform its practices to the Federal Constitution and thereby to incur additional expense in the future. Since the rationale of Ex parte Young remains applicable to such cases, and since this case is not squarely covered by the holding in Edelman, I am persuaded that it is proper to reject the Eleventh Amendment defense.

With respect to the fee issue, even if the Eleventh Amendment were applicable, I would place fees in the same category as other litigation costs. Cf. Fairmont Co. v. Minnesota, 275 U. S. 70.

       Section 703 (a) of the Civil Rights Act of 1964 (hereinafter 1964 Act), 78 Stat. 255, 42 U. S. C. §2000e-2(a) (1970 ed. and Supp. IV), provides:

        “It shall be an unlawful employment practice for an employer—
      “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

       As relevant here, the definition of “person” in § 701 (a) of the 1964 Act, 78 Stat. 253, 42 U. S. C. §2000e (a), was amended by § 2 (1) of the Equal Employment Opportunity Act of 1972 (hereinafter the 1972 Amendments), 86 Stat. 103, 42 U. S. C. §2000e (a) (1970 ed., Supp, IV), to include “governments, governmental agencies, [and] political subdivisions.”
      The express exclusion of “a State or political subdivision thereof” provided in § 701 (b) of the former was stricken by § 2 (2) of the latter, 86 Stat. 103, 42 U. S. C. §2000e (b) (1970 ed., Supp. IV). Section 2 (5) of the 1972 Amendments, 86 Stat. 103, 42 U. S. C. §2000e(f) (1970 ed., Supp. IV), amended § 701(f) of the 1964 Act, 42 U. S, C. § 2000e (f), to include within the definition of “employee” those individuals “subject to the civil service laws of a State government, governmental agency or political subdivision.”
      The 1972 Amendments retained the right of an individual aggrieved by an employer’s unlawful employment practice to sue on his or her own behalf, upon satisfaction of the statutory procedural prerequisites, and made clear that that right was being extended to persons aggrieved by public employers. See 1972 Amendments, § 4 (a), 86 Stat. 104, 42 U. S. C. §§2000o-5 (a)-(g) (1970 ed., Supp. IV).

       Petitioners had also alleged that the retirement plan was contrary to the Equal Protection Clause of the Fourteenth Amendment, but in view of its ruling under Title VII the District Court found no reason to address the constitutional claim. 390 F. Supp., at 290.

       In No. 75-251, respondent Bitzer is the Chairman of the State Employees’ Retirement Commission, and the other respondents are the Treasurer and the Comptroller of the State of Connecticut. These officials are cross-petitioners in No. 75-283.

       Section 706 (g) of the 1964 Act, 78 Stat. 261, as amended, 86 Stat. 107, 42 U. S. C. § 2000e-5 (g) (1970 ed., Supp. IV), provides in part:
      “If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.”

       See § 706 (k) of the 1964 Act, 78 Stat. 261, 42 TJ. S. C. § 2000e-5(k).

       Respondent state oficiáis did not appeal from the District Court’s finding of a Title VII violation and the entry of prospective in-junctive relief.

       The Court of Appeals rejected petitioners’ arguments that the retroactive benefits would not be paid out of public funds from the state treasury, and that the rule in Edelman and Ford Motor Co. was therefore inapplicable. 519 F. 2d, at 564-565. Petitioners have not challenged this ruling here.

       There is no dispute that in enacting the 1972 Amendments to Title VII to extend coverage to the States as employers, Congress exercised its power under § 5 of the Fourteenth Amendment. See, e. g., H. R. Rep. No. 92-238, p. 19 (1971); S. Rep. No. 92-415, pp. 10-11 (1971). Cf. National League of Cities v. Usery, 426 U. S. 833 (1976).

       “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
      “Section 2. Congress shall have power to enforce this article by appropriate legislation.”

       Apart from their claim that the Eleventh Amendment bars enforcement of the remedy established by Title VII in this case, respondent state officials do not contend that the substantive provisions of Title VII as applied here are not a proper exercise of congressional authority under § 5 of the Fourteenth Amendment.

       See n. 6, supra.

       As Mr. Chief Justice Marshall has pointed out, the Eleventh Amendment is not literally applicable to this situation. See Cohens v. Virginia, 6 Wheat. 264, 412; see also Employees v. Missouri Public Health Dept., 411 U. S. 279, 298-324 (Brennan, J., dissenting).

       Neither the language of the Eleventh Amendment nor the rationale of Ex parte Young draws any distinction between proceedings in law or in equity. The Amendment provides: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.’-' U. S. Const., Arndt. 11.


source: Caselaw Access Project

license: Public Domain

text:
    UTAH v. UNITED STATES
    No. 31,
    Orig.
    Decided February 19, 1975
    Decree entered February 19, 1975 — Further decree entered June 28, 1976
   DECREE

It is ordered, adjudged, and decreed that:

1. Taking into consideration Sections 1, 2, and 5 of the decree of this Court entered May 22, 1972, Utah v. United States, 406 U. S. 484, 485-486, Sections 1, 2, and 4 of the decree of this Court entered February 19, 1975, Utah v. United States, 420 U. S. 304, 305-306, and the further proceedings had herein pursuant to the decree of this Court entered February 19, 1975, Utah v. United States, 420 U. S. 304, and

2. Subject to any federal regulatory authority that may extend to the Great Salt Lake or its shorelands, the United States of America, its departments and agencies, are enjoined from asserting against the State of Utah any claim of right, title and interest:

(a) to any lands within the meander line of the Great Salt Lake (as duly surveyed prior to or in accordance with Section 1 of the Act of June 3, 1966, 80 Stat. 192), with the exception of any lands within the Bear River Migratory Bird Refuge, the Weber Basin Federal Reclamation Project, and the Hill Air Force Range (as bounded by water’s edge June 15, 1967), the title to which last-named parcel is not decided by this decree;

(b) to the natural resources and living organisms in or beneath the lands delineated in (a) above; and

(c) to the natural resources and living organisms either within the waters of the Great Salt Lake, or extracted therefrom, as delineated in (a) above.

3. The State of Utah is not required to pay the United States for the lands, including the minerals, delineated in paragraph 2 above of this decree.

4. The prayer of the United States in its answer to the State of Utah’s Complaint that this Court “confirm, declare and establish that the United States is the owner of all right, title and interest in all of the lands described in Section 2 of the Act of June 3, 1966, 80 Stat. 192, as amended by the Act of August 23, 1966, 80 Stat. 349, and that the State of Utah is without any right, title or interest in such lands, save for the right to have these lands conveyed to it by the United States, and to pay for them, in accordance with the provisions of the Act of June 3,1966, as amended,” is denied.

Me. Justice Marshall took no part in the consideration or decision of this decree.

      When “lands” appears in this decree to describe the interests involved, the word is used to include the brines and minerals in solution in the brines or precipitated or extracted therefrom.


author: Mr. Justice Blackmun Mr. Justice Brennan, Mr. Justice Marshall,

text:
    ANDRESEN v. MARYLAND
    No. 74-1646.
    Argued February 25, 1976
    Decided June 29, 1976

      BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, RehNquist, and SteveNS, JJ., joined. BreNNAN, J., post, p. 484, and Marshall, J., post, p. 493, filed dissenting opinions.

      Peter C. Andresen, petitioner, pro se, argued the cause and filed a brief.

      Jon F. Oster, Deputy Attorney General of Maryland, argued the cause for respondent. With him on the brief were Francis B. Burch, Attorney General, and Clarence W. Sharp and Gilbert Rosenthal, Assistant Attorneys General.

      Deputy Solicitor General Randolph argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Bork, Deputy Solid-
      tor General Frey, Stuart A. Smith, and Edward R. K orman.

   Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents the issue whether the introduction into evidence of a person’s business records, seized during a search of his offices, violates the Fifth Amendment’s command that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” We also must determine whether the particular searches and seizures here were “unreasonable” and thus violated the prohibition of the Fourth Amendment.

I

In early 1972, a Bi-County Fraud Unit, acting under the joint auspices of the State’s Attorneys’ Offices of Montgomery and Prince George’s Counties, Md., began an investigation of real estate settlement activities in the Washington, D. C., area. At the time, petitioner Andre-sen was an attorney who, as a sole practitioner, specialized in real estate settlements in Montgomery County. During the Fraud Unit’s investigation, his activities came under scrutiny, particularly in connection with a transaction involving Lot 13T in the Potomac Woods subdivision of Montgomery County. The investigation, which included interviews with the purchaser, the mortgage holder, and other lienholders of Lot 13T, as well as an examination of county land records, disclosed that petitioner, acting as settlement attorney, had defrauded Standard-Young Associates, the purchaser of Lot 13T. Petitioner had represented that the property was free of liens and that, accordingly, no title insurance was necessary, when in fact, he knew that there were two outstanding liens on the property. In addition, investigators learned that the lienholders, by threatening to foreclose their liens, had forced a halt to the purchaser’s construction on the property. When Standard-Young had confronted petitioner with this information, he responded by issuing, as an agent of a title insurance company, a title policy guaranteeing clear title to the property. By this action, petitioner also defrauded that insurance company by requiring it to pay the outstanding liens.

The investigators, concluding that there was probable cause to believe that petitioner had committed the state crime of false pretenses, see Md. Ann. Code, Art. 27, § 140 (1976), against Standard-Young, applied for warrants to search petitioner’s law office and the separate office of Mount Vernon Development Corporation, of which petitioner was incorporator, sole shareholder, resident agent, and director. The application sought permission to search for specified documents pertaining to the sale and conveyance of Lot 13T. A judge of the Sixth Judicial Circuit of Montgomery County concluded that there was probable cause and issued the warrants.

The searches of the two offices were conducted simultaneously during daylight hours on October 31, 1972. Petitioner was present during the search of his law office and was free to move about. Counsel for him was present during the latter half of the search. Between 2% and 3% of the files in the office were seized. A single investigator, in the presence of a police officer, conducted the search of Mount Vernon Development Corporation. This search, taking about four hours, resulted in the seizure of less than 5% of the corporation’s files.

Petitioner eventually was charged, partly by information and partly by indictment, with the crime of false pretenses, based on his misrepresentation to Standard-Young concerning Lot 13T, and with fraudulent misappropriation by a fiduciary, based on similar false claims made to three home purchasers. Before trial began, petitioner moved to suppress the seized documents. The trial court held a full suppression hearing. At the hearing, the State returned to petitioner 45 of the 52 items taken from the offices of the corporation. The trial court suppressed six other corporation items on the ground that there was no connection between them and the crimes charged. The net result was that the only item seized from the corporation’s offices that was not returned by the State or suppressed was a single file labeled “Potomac Woods General.” In addition, the State returned to petitioner seven of the 28 items seized from his law office, and the trial court suppressed four other law office items based on its determination that there was no connection between them and the crime charged.

With respect to all the items not suppressed or returned, the trial court ruled that admitting them into evidence would not violate the Fifth and Fourth Amendments. It reasoned that the searches and seizures did not force petitioner to be a witness against himself because he had not been required to produce the seized documents, nor would he be compelled to authenticate them. Moreover, the search warrants were based on probable cause, and the documents not returned or suppressed were either directly related to Lot 13T, and therefore within the express language of the warrants, or properly seized and otherwise admissible to show a pattern of criminal conduct relevant to the charge concerning Lot 13T.

At trial, the State proved its case primarily by public land records and by records provided by the complaining purchasers, lienholders, and the title insurance company. It did introduce into evidence, however, a number of the seized items. Three documents from the “Potomac Woods General” file, seized during the search of petitioner's corporation, were admitted. These were notes in the handwriting of an employee who used them to prepare abstracts in the course of his duties as a title searcher and law clerk. The notes concerned deeds of trust affecting the Potomac Woods subdivision and related to the transaction involving Lot 13T. Five items seized from petitioner's law office were also admitted. One contained information relating to the transactions with one of the defrauded home buyers. The second was a file partially devoted to the Lot 13T transaction; among the documents were settlement statements, the deed conveying the property to Standard-Young Associates, and the original and a copy of a notice to the buyer about releases of liens. The third item was a file devoted exclusively to Lot 13T. The fourth item consisted of a copy of a deed of trust, dated March 27, 1972, from the seller of certain lots in the Potomac Woods subdivision to a lienholder. The fifth item contained drafts of documents and memoranda written in petitioner’s handwriting.

After a trial by jury, petitioner was found guilty upon five counts of false pretenses and three counts of fraudulent misappropriation by a fiduciary. He was sentenced to eight concurrent two-year prison terms.

On appeal to the Court of Special Appeals of Maryland, four of the five false-pretenses counts were reversed because the indictment had failed to allege intent to defraud, a necessary element of the state offense. Only the count pertaining to Standard-Young’s purchase of Lot 13T remained. With respect to this count of false pretenses and the three counts of misappropriation by a fiduciary, the Court of Special Appeals rejected petitioner’s Fourth and Fifth Amendment Claims. Specifically, it held that the warrants were supported by probable cause, that they did not authorize a general search in violation of the Fourth Amendment, and that the items admitted into evidence against petitioner at trial were within the scope of the warrants or were otherwise properly seized. It agreed with the trial court that the search had not violated petitioner’s Fifth Amendment rights because petitioner had not been compelled to do anything. 24 Md. App. 128, 331 A. 2d 78 (1975).

We granted certiorari limited to the Fourth and Fifth Amendment issues. 423 U. S. 822 (1975).

II

The Fifth Amendment, made applicable to the States by the Fourteenth Amendment, Malloy v. Hogan, 378 U. S. 1, 8 (1964), provides that “[n]o person . , . shall be compelled in any criminal case to be a witness against himself.” As the Court often has noted, the development of this protection was in part a response to certain historical practices, such as ecclesiastical inquisitions and the proceedings of the Star Chamber, “which placed a premium on compelling subjects of the investigation to admit guilt from their own lips.” Michigan v. Tucker, 417 U. S. 433, 440 (1974). See generally L. Levy, Origins of the Fifth Amendment (1968). The “historic function” of the privilege has been to protect a “ ‘natural individual from compulsory incrimination through his own testimony or personal records.' ” Bellis v. United States, 417 U. S. 85, 89-90 (1974), quoting from United States v. White, 322 U. S. 694, 701 (1944).

There is no question that the records seized from petitioner’s offices and introduced against him were incriminating. Moreover, it is undisputed that some of these business records contain statements made by petitioner. Cf. United States v. Mara, 410 U. S. 19, 21-22 (1973); United States v. Dionisio, 410 U. S. 1 (1973); Gilbert v. California, 388 U. S. 263, 266-267 (1967); United States v. Wade, 388 U. S. 218 (1967); and Schmerber v. California, 384 U. S. 757 (1966). The question, therefore, is whether the seizure of these business records, and their admission into evidence at his trial, compelled petitioner to testify against himself in violation of the Fifth Amendment. This question may be said to have been reserved in Warden v. Hayden, 387 U. S. 294, 302-303 (1967), and it was adverted to in United States v. Miller, 425 U. S. 435, 441 n. 3 (1976).

Petitioner contends that “the Fifth Amendment prohibition against compulsory self-incrimination applies as well to personal business papers seized from his offices as it does to the same papers being required to be produced under a subpoena.” Brief for Petitioner 9. He bases his argument, naturally, on dicta in a number of cases which imply, or state, that the search for and seizure of a person's private papers violate the privilege against self-incrimination. Thus, in Boyd v. United States, 116 U. S. 616, 633 (1886), the Court said: “[W]e have been unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” And in Hale v. Henkel, 201 U. S. 43, 76 (1906), it was observed that “the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person ... is entitled to protection.”

We do not agree, however, that these broad statements compel suppression of this petitioner’s business records as a violation of the Fifth Amendment. In the very recent case of Fisher v. United States, 425 U. S. 391 (1976), the Court held that an attorney’s production, pursuant to a lawful summons, of his client’s tax records in his hands did not violate the Fifth Amendment privilege of the taxpayer “because enforcement against a taxpayer’s lawyer would not ‘compel’ the taxpayer to do anything — and certainly would not compel him to be a ‘witness’ against himself.” Id., at 397. We recognized that the continued validity of the broad statements contained in some of the Court’s earlier cases had been discredited by later opinions. Id., at 407-409. In those earlier cases, the legal predicate for the inadmissibility of the evidence seized was a violation of the Fourth Amendment; the unlawfulness of the .search and seizure was thought to supply the compulsion of the accused necessary to invoke the Fifth Amendment. Compulsion of the accused was also absent in Couch v. United States, 409 TJ. S. 322 (1973), where the Court held that a summons served on a taxpayer’s accountant requiring him to produce the taxpayer’s personal business records in his possession did not violate the taxpayer’s Fifth Amendment rights.

Similarly, in this case, petitioner was not asked to say or to do anything. The records seized contained statements that petitioner had voluntarily committed to writing. The search for and seizure of these records were conducted by law enforcement personnel. Finally, when these records were introduced at trial, they were authenticated by a handwriting expert, not by petitioner. Any compulsion of petitioner to speak, other than the inherent psychological pressure to respond at trial to unfavorable evidence, was not present.

This case thus falls within the principle stated by Mr. Justice Holmes: “A party is privileged from producing the evidence but not from its production.” Johnson v. United States, 228 U. S. 457, 458 (1913). This principle recognizes that the protection afforded by the Self-Incrimination Clause of the Fifth Amendment “adheres basically to the person, not to information that may incriminate him.” Couch v. United States, 409 U. S., at 328. Thus, although the Fifth Amendment may protect an individual from complying with a subpoena for the production of his personal records in his possession because the very act of production may constitute a compulsory authentication of incriminating information, see Fisher v. United States, supra, a seizure of the same materials by law enforcement officers differs in a crucial respect — the individual against whom the search is directed is not required to aid in the discovery, production, or authentication of incriminating evidence.

A contrary determination that the seizure of a person’s business records and their introduction into evidence at a criminal trial violates the Fifth Amendment, would undermine the principles announced in earlier cases. Nearly a half century ago, in Marron v. United States, 275 U. S. 192 (1927), the Court upheld, against both Fourth and Fifth Amendment claims, the admission into evidence of business records seized during a search of the accused’s illegal liquor business. And in Abel v. United States, 362 U. S. 217 (1960), the Court again upheld, against both Fourth and Fifth Amendment claims, the introduction into evidence at an espionage trial of false identity papers and a coded message seized during a search of the accused’s hotel room. These cases recognize a general rule: "There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant.” Gouled v. United States, 255 U. S. 298, 309 (1921).

Moreover, a contrary determination would prohibit the admission of evidence traditionally used in criminal cases and traditionally admissible despite the Fifth Amendment. For example, it would bar the admission of an accused’s gambling records in a prosecution for gambling; a note given temporarily to a bank teller during a robbery and subsequently seized in the accused's automobile or home in a prosecution for bank robbery; and incriminating notes prepared, but not sent, by an accused in a kidnaping or blackmail prosecution.

We find a useful analogy to the Fifth Amendment question in those cases that deal with the “seizure” of oral communications. As the Court has explained, “‘[t]he constitutional privilege against self-incrimination ... is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him.' ” Bellis v. United States, 417 U. S., at 88, quoting United States v. White, 322 U. S., at 698. The significant aspect of this principle was apparent and applied in Hoffa v. United States, 385 U. S. 293 (1966), where the Court rejected the contention that an informant's “seizure” of the accused’s conversation with him, and his subsequent testimony at trial concerning that conversation, violated the Fifth Amendment. The rationale was that, although the accused’s statements may have been elicited by the informant for the purpose of gathering evidence against him, they were made voluntarily. We see no reasoned distinction to be made between the compulsion upon the accused in that case and the compulsion in this one. In each, the communication, whether oral or written, was made voluntarily. The fact that seizure was contemporaneous with the communication in Hoffa but subsequent to the communication here does not affect the question whether the accused was compelled to speak.

Finally, we do not believe that permitting the introduction into evidence of a person’s business records seized during an otherwise lawful search would offend or undermine any of the policies undergirding the privilege. Murphy v. Waterfront Comm’n, 378 U. S. 52, 55 (1964).

In this case, petitioner, at the time he recorded his communication, at the time of the search, and at the time the records were admitted at trial, was not subjected to “the cruel trilemma of self-accusation, perjury or contempt.” Ibid. Indeed, he was never required to say or to do anything under penalty of sanction. Similarly, permitting the admission of the records in question does not convert our accusatorial system of justice into an inquisitorial system. “The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights — these are all characteristics of the ac-cusatorial system and manifestations of its demands.” Watts v. Indiana, 338 U. S. 49, 54 (1949). None of these attributes is endangered by the introduction of business records “independently secured through skillful investigation.” Ibid. Further, the search for and seizure of business records pose no danger greater than that inherent in every search that evidence will be “elicited by inhumane treatment and abuses.” 378 U. S., at 55. In this case, the statements seized were voluntarily committed to paper before the police arrived to search for them, and petitioner was not treated discourteously during the search. Also, the “good cause” to “disturb,” ibid., petitioner was independently determined by the judge who issued the warrants; and the State bore the burden of executing them. Finally, there is no chance, in this case, of petitioner’s statements being self-deprecatory and untrustworthy because they were extracted from him — they were already in existence and had been made voluntarily.

We recognize, of course, that the Fifth Amendment protects privacy to some extent. However, “the Court has never suggested that every invasion of privacy violates the privilege.” Fisher v. United States, 425 U. S., at 399. Indeed, we recently held that unless incriminating testimony is “compelled,” any invasion of privacy is outside the scope of the Fifth Amendment’s protection, saying that “the Fifth Amendment protects against ‘compelled self-incrimination, not [the disclosure of] private information.’ ” Id., at 401. Here, as we have already noted, petitioner was not compelled to testify in any manner.

Accordingly, we hold that the search of an individual’s office for business records, their seizure, and subsequent introduction into evidence do not offend the Fifth Amendment’s proscription that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”

Ill

We turn next to petitioner’s contention that rights guaranteed him by the Fourth Amendment were violated because the descriptive terms of the search warrants were so broad as to make them impermissible “general” warrants, and because certain items were seized in violation of the principles of Warden v. Hayden, 387 U. S. 294 (1967).

The specificity of the search warrants. Although petitioner concedes that the warrants for the most part were models of particularity, Brief for Petitioner 28, he contends that they were rendered fatally “general” by the addition, in each warrant, to the exhaustive list of particularly described documents, of the phrase “together with other fruits, instrumentalities and evidence of crime at this [time] unknown.” App. A. 95-A. 96, A. 115. The quoted language, it is argued, must be read in isolation and without reference to the rest of the long sentence at the end of which it appears. When read “properly/’ petitioner contends, it permits the search for and seizure of any evidence of any crime.

General warrants, of course, are prohibited by the Fourth Amendment. “[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings. . . . [The Fourth Amendment addresses the problem] by requiring a 'particular description’ of the things to be seized.” Coolidge v. New Hampshire, 403 U. S. 443, 467 (1971). This requirement '"makes general searches . . . 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.’ ” Stanford v. Texas, 379 U. S. 476, 485 (1965), quoting Marron v. United States, 275 U. S., at 196.

In this case we agree with the determination of the Court of Special Appeals of Maryland that the challenged phrase must be read as authorizing only the search for and seizure of evidence relating to “the crime of false pretenses with respect to Lot 13T.” 24 Md. App., at 167, 331 A. 2d, at 103. The challenged phrase is not a separate sentence. Instead, it appears in each warrant at the end of a sentence containing a lengthy list of specified and particular items to be seized, all pertaining to Lot 13T. We think it clear from the context that the term “crime” in the warrants refers only to the crime of false pretenses with respect to the sale of Lot 13T. The “other fruits” clause is one of a series that follows the colon after the word “Maryland.” All clauses in the series are limited by what precedes that colon, namely, “items pertaining to . . . lot 13, block T.” The warrants, accordingly, did not authorize the executing officers to conduct a search for evidence of other crimes but only to search for and seize evidence relevant to the crime of false pretenses and Lot 13T.

The admissibility of certain items of evidence in light of Warden v. Hayden. Petitioner charges that the seizure of documents pertaining to' a lot other than Lot 13T violated the principles of Warden v. Hayden and therefore should have been suppressed. His objection appears to be that these papers were not relevant to the Lot 13T charge and were admissible only to prove another crime with which he was charged after the search. The fact that these documents were used to help form the evidentiary basis for another charge, it is argued, shows that the documents were seized solely for that purpose.

The State replies that Warden v. Hayden was not violated and that this is so because the challenged evidence is relevant to the question whether petitioner committed the crime of false pretenses with respect to Lot 13T. In Maryland, the crime is committed when a person makes a false representation of a past or existing fact, with intent to defraud and knowledge of its falsity, and obtains any chattel, money, or valuable security from another, who relies on the false representation to his detriment. Polisher v. State, 11 Md. App. 555, 560, 276 A. 2d 102, 104 (1971). Thus, the State is required to prove intent to defraud beyond a reasonable doubt. The State consequently argues that the documents pertaining to another lot in the Potomac Woods subdivision demonstrate that the misrepresentation with respect to Lot 13T was not the result of mistake on the part of petitioner.

In Warden v. Hayden, 387 U. S., at 307, the Court stated that when the police seize “ ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required.” In this case, we conclude that the trained special investigators reasonably could have believed that the evidence specifically dealing with another lot in the Potomac Woods subdivision could be used to show petitioner’s intent with respect to the Lot 13T transaction.

The Court has often recognized that proof of similar acts is admissible to show intent or the absence of mistake. In Nye & Nissen v. United States, 336 U. S. 613 (1949), for example, a case involving a scheme of fraudulent conduct, it was said:

“The evidence showed the presentation of eleven other false invoices. . . . The trial court also admitted it at the conclusion of the case ‘for the sole purpose of proving guilty intent, motive, or guilty knowledge’ of the defendants. Evidence that similar and related offenses were committed in this period tended to show a consistent pattern of conduct highly relevant to the issue of intent.” Id., at 618.

In the present case, when the special investigators secured the search warrants, they had been informed of a number of similar charges against petitioner arising out of Potomac Woods transactions. And, by reading numerous documents and records supplied by the Lot 13T and other complainants, and by interviewing witnesses, they had become familiar with petitioner's method of operation. Accordingly, the relevance of documents pertaining specifically to a lot other than Lot 13T, and their admissibility to show the Lot 13T offense, would have been apparent. Lot 13T and the other lot had numerous features in common. Both were in the same section of the Potomac Woods subdivision; both had been owned by the same person; and transactions concerning both had been handled extensively by petitioner. Most important was the fact that there were two deeds of trust in which both lots were listed as collateral. Unreleased liens respecting both lots were evidenced by these deeds of trusts. Petitioner’s transactions relating to the other lot, subject to the same liens as Lot 13T, therefore, were highly relevant to the question whether his failure to deliver title to Lot 13T free of all encumbrances was mere inadvertence. Although these records subsequently were used to secure additional charges against petitioner, suppression of this evidence in this case was not required. The fact that the records could be used to show intent to defraud with respect to Lot 13T permitted the seizure and satisfied the requirements of Warden v. Hayden.

The judgment of the Court of Special Appeals of Maryland is affirmed.

It is so ordered.

Mr. Justice Brennan,

dissenting.

In a concurring opinion earlier this Term in Fisher v. United States, 425 U. S. 391, 414 (1976), I stated my view that the Fifth Amendment protects an individual citizen against the compelled production of testimonial matter that might tend to incriminate him, provided it is matter that comes within the zone of privacy recognized by the Amendment to secure to the individual “a private inner sanctum of individual feeling and thought.” Couch v. United States, 409 U. S. 322, 327 (1973). Accordingly, the production of testimonial material falling within this zone of privacy may not be compelled by subpoena. The Court holds today that the search and seizure, pursuant to a valid warrant, of business records in petitioner’s possession and containing statements made by the petitioner does not violate the Fifth Amendment. I can perceive no distinction of meaningful substance between compelling the production of such records through subpoena and seizing such records against the will of the petitioner. Moreover, I believe that the warrants under which petitioner’s papers were seized were impermissibly general. I therefore dissent.

I

“There is no question that the records seized from petitioner’s offices and introduced against him were incriminating. Moreover, it is undisputed that some of these business records contain statements made by petitioner.” Ante, at 471. It also cannot be questioned that these records fall within the zone of privacy protected by the Fifth Amendment. Bellis v. United States, 417 U. S. 85, 87-88 (1974), squarely recognized that “[t]he privilege applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life.” The Court today retreats from this view. Though recognizing the value of privacy protected by the Fifth Amendment, see ante, at 477, and the “ 'right of each individual "to a private enclave where he may lead a private life,” ’ ” ante, at 476 n. 8, the Court declines, without adequate explanation, to include business records within that private zone comprising the mere physical extensions of an individual’s thoughts and knowledge. As I noted in Fisher, the failure to give effect to such a zone ignores the essential spirit of the Fifth Amendment: “[Business] records are at least an extension of an aspect of a person’s activities, though concededly not the more intimate aspects of one’s life. Where the privilege would have protected one’s mental notes of his business affairs in a less complicated day and age, it would seem that that protection should not fall away because the complexities of another time compel one to keep business records. Cf. Olmstead v. United States, 277 U. S. 438, 474 (1928) (Brandeis, J., dissenting).” 425 U. S., at 426-427 (BRENNAN, J.„ concurring in judgment).

As indicated at the outset, today’s assault on the Fifth Amendment is not limited to narrowing this view of the scope of privacy respected by it. The Court also sanctions circumvention of the Amendment by indulging an unjustified distinction between production compelled by subpoena and production secured against the will of the petitioner through warrant. But a privilege protecting against the compelled production of testimonial material is a hollow guarantee where production of that material may be secured through the expedient of search and seizure.

The matter cannot be resolved on any simplistic notion of compulsion. Search and seizure is as rife with elements of compulsion as subpoena. The intrusion occurs under the lawful process of the State. The individual is not free to resist that authority. To be sure, as the Court observes, “ [petitioner was present during the search of his law office and was free to move about,” ante, at 466, but I do not believe the Court means to suggest that petitioner was free to obstruct the investigators’ search through his files.

And compulsion does not disappear merely because the individual is absent at the time of search and seizure. The door to one’s house, for example, is as much the individual’s resistance to the intrusion of outsiders as his personal physical efforts to prevent the same. To refuse recognition to the sanctity of that door and, more generally, to confine the dominion of privacy to the mind, compels an unconstitutional disclosure by denying to the individual a zone of physical freedom necessary for conducting one’s affairs. True to this principle, a value enshrined by the Fifth Amendment, the Court carefully observed in Couch that “actual possession of documents bears the most significant relationship to Fifth Amendment protections against governmental compulsions upon the individual accused of crime,” 409 U. S., at 333, and that “[w]e do indeed attach constitutional importance to possession, but only because of its close relationship to those personal compulsions and intrusions which the Fifth Amendment forbids.” Id., at 336 n. 20. Couch also plainly indicated that it is not necessary that there be actual possession in order to invoke Fifth Amendment limitations, for “situations may well arise where constructive possession is so clear or the relinquishment of possession is so temporary and insignificant as to leave the personal compulsions upon the accused substantially intact.” Id., at 333.

Though the records involved in this case were clearly within petitioner’s possession or at least constructive possession, the Court avoids application of these principles and the values they protect by what I submit is a mischaracterization of Couch as concerned with the “possibility of compulsory self-incrimination by the principal’s implicit or explicit Testimony’ that the documents were those identified in the summons.” Ante, at 473 n. 7. Whether or not Couch was concerned with this possibility — and I believe that even under the most strained reading it was not — Couch was clearly concerned with whether production of documents in the possession of the accused's accountant pursuant to a summons directed to the accountant operated personally to compel the accused. It was in this regard that Couch recognized that “possession bears the closest relationship to the personal compulsion forbidden by the Fifth Amendment,” 409 U. S., at 331, a matter with which the Court refuses to deal in its treatment of Couch.

Couch only reflects the view of a long line of decisions explicitly recognizing that the seizure of private papers may violate the Fifth Amendment. As early as Boyd v. United States, 116 U. S. 616, 633 (1886), the Court was “unable to perceive that the seizure of a man’s private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself.” Though the Court in Boyd held that compelling a person to be a witness against himself was tantamount to an unreasonable search and seizure, it never required a search and seizure to be independently unreasonable in order that it violate the Fifth Amendment. And though the several decisions which have found a Fifth Amendment violation stemming from a search and seizure all involved unreasonable search and seizures, it has never been established, contrary to the Court’s assertion, ante, at 472, that the unlawfulness of the search and seizure is necessary to invoke the Fifth Amendment. Gouled v. United States, 255 U. S. 298 (1921), though also involving a Fourth Amendment violation, makes it clear that the illegality of the search and seizure is not a prerequisite for a Fifth Amendment violation. Under Gouled, a Fifth Amendment violation exists because the “[accused] is the unwilling source of the evidence,” id., at 306, a matter which does not depend on the illegality vel non of the search and seizure.

Until today, no decision by this Court had held that the seizure of testimonial evidence by legal process did not violate the Fifth Amendment. Indeed, with few exceptions, the indications were strongly to the contrary. See, e. g., United States v. Lefkowitz, 285 U. S. 452, 465-467 (1932); Weeks v. United States, 232 U. S. 383, 397 (1914); Hale v. Henkel, 201 U. S. 43, 76 (1906). More recently, Schmerber y. California, 384 U. S. 757, 767 (1966), noted that the “values protected by the Fourth Amendment . . . substantially overlap those the Fifth Amendment helps to protect,” and clearly indicated that in considering whether to suppress seized evidence, a first inquiry is whether its testimonial nature, if any, precludes its introduction in evidence. See id., at 760-765. Subsequent to Schmerber, Warden v. Hayden, 387 U. S. 294, 302-303 (1967), carefully observed that the items of clothing seized in that case were “not 'testimonial’ or 'communicative’ in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment.” These cases all reflect the root understanding of Boyd v. United States, 116 U. S., at 630: “It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence [to the Fifth Amendment]; but it is the invasion of his indefeasible right of personal security, personal liberty and private property .... [A]ny forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime ..., is within the condemnation of [the Amendment]. In this regard the Fourth and Fifth Amendments run almost into each other.”

II

Even if a Fifth Amendment violation is not to be recognized in the seizure of petitioner’s papers, a violation of Fourth Amendment protections clearly should be, for the warrants under which those papers were seized were impermissibly general. General warrants are especially prohibited by the Fourth Amendment. The problem to be avoided is “not that of intrusion per se, but of a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U. S. 443, 467 (1971). Thus the requirement plainly appearing on the face of the Fourth Amendment that a warrant specify with particularity the place to be searched and the things to be seized is imposed to the end that “unauthorized invasions of The sanctity of a man’s home and the privacies of life’ ” be prevented. Berger v. New York, 388 U. S. 41, 58 (1967). “ ‘As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.’ ” Stanford v. Texas, 379 U. S. 476, 485 (1965) (quoting Marron v. United States, 275 U. S. 192, 196 (1927)).

The Court recites these requirements, but their application in this case renders their limitation on unlawful governmental conduct an empty promise. After a lengthy and admittedly detailed listing of items to be seized, the warrants in this case further authorized the seizure of “other fruits, instrumentalities and evidence of crime at this [time] unknown.” App. A. 96, A. 115. The Court construes this sweeping authorization to be limited to evidence pertaining to the crime of false pretenses with respect to the sale of Lot 13T. However, neither this Court’s construction of the warrants nor the similar construction by the Court of Special Appeals of Maryland was available to the investigators at the time they executed the warrants. The question is not how those warrants are to be viewed in hindsight, but how they were in fact viewed by those executing them. The overwhelming quantity of seized material that was either suppressed or returned to petitioner is irrefutable testimony to the unlawful generality of the warrants. The Court’s attempt to cure this defect by post hoc judicial construction evades principles settled in this Court’s Fourth Amendment decisions. “The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge Terry v. Ohio, 392 U. S. 1, 21 (1968). See Berger v. New York, supra, at 54; Johnson v. United States, 333 U. S. 10, 13-14 (1948). It is not the function of a detached and neutral review to give effect to warrants whose terms unassailably authorize the far-reaching search and seizure of a person’s papers, especially where that has in fact been the result of executing those warrants.

Mr. Justice Marshall,

dissenting.

I agree with Mr. Justice Brennan that the business records introduced at petitioner’s trial should have been suppressed because they were seized pursuant to a general warrant. Accordingly, I need not consider whether petitioner’s alternative contention — that the Fifth Amendment precludes the seizure of private papers, even pursuant to a warrant — can survive Fisher v. United States, 425 U. S. 391 (1976), and, if so, whether this Fifth Amendment argument would protect the business records seized in this case.

       Before these search warrants were executed, the Bi-County Fraud Unit had also received complaints concerning other Potomac Woods real estate transactions conducted by petitioner. The gist of the complaints was that petitioner, as settlement attorney, took money from three sets of home purchasers upon assurances that he would use it to procure titles to their properties free and clear of all encumbrances. It was'charged that he had misappropriated the money so that they had not received clear title to the properties as promised.

       It is established that the privilege against self-incrimination may not be invoked with respect to corporate records. Bellis v. United States, 417 U. S. 85, 88-89 (1974); Grant v. United States, 227 U. S. 74 (1913); Hale v. Henkel, 201 U. S. 43, 70 (1906). It appears, however, that the records seized at the corporation’s office were really not corporate records, but were records generated by petitioner’s practice as a real estate lawyer. United States Appendix of Exhibits 1-3.

       This item was introduced as proof that petitioner failed to pay recording taxes, a charge that was abandoned before the ease was submitted to the jury.

       The Solicitor General, in an amicus brief filed with this Court, has suggested that the evidence forming the basis of two of the counts of misappropriation by a fiduciary, which were upheld on appeal, was obtained entirely from sources other than petitioner’s offices. Brief for United States as Amicus Curiae 12-14, 24-25, n. 17. This fact, if true, does not, of course, affect our jurisdiction but it would permit us to apply the discretionary concurrent-sentence doctrine, Benton v. Maryland, 395 U. S. 784, 791 (1969), and thereby decline to consider petitioner’s constitutional claims. Barnes v. United States, 412 U. S. 837, 848 n. 16 (1973).

       Both the trial and appellate courts in this case recognized the conflict among the Federal Courts of Appeals over whether documentary evidence not obtainable by means of a subpoena or a summons may be obtained by means of a search warrant. Thus, in Hill v. Philpott, 445 F. 2d 144 (CA7), cert. denied, 404 U. S. 991 (1971), the Court of Appeals held that evidence not obtainable by means of a subpoena could not be seized by means of a search warrant. The substantial majority position is of the opposite view. Shaffer v. Wilson, 523 F. 2d 175 (CA10 1975), cert. pending, No. 75-601; United States v. Murray, 492 F. 2d 178, 191 (CA9 1973); Taylor v. Minnesota, 466 F. 2d 1119 (CA8 1972), cert. denied, 410 U. S. 956 (1973); United States v. Blank, 459 F. 2d 383 (CA6), cert. denied, 409 U. S. 887 (1972); United States v. Scharfman, 448 F. 2d 1352 (CA2 1971), cert. denied, 405 U. S. 919 (1972); United States v. Bennett, 409 F. 2d 888, 896 (CA2), cert. denied sub nom. Jessup v. United States, 396 U. S. 852 (1969). The majority position accords with the views of Wigmore. 8 J. Wigmore, Evidence §2264, p. 380 (McNaughton Rev. 1961).
      The Court of Special Appeals adopted the majority position and, therefore, upheld the admission of the records into evidence.

       In Boyd v. United States, 116 U. S. 616 (1886), for example, it was held that the Government could not, consistently with the Fourth Amendment, obtain “mere evidence” from the accused; accordingly, a subpoena seeking “mere evidence” constituted compulsion of the accused against which he could invoke the Fifth Amendment, The “mere evidence” rule was overturned in Warden v. Hayden, 387 U. S. 294, 301-302 (1967).
      The “convergence theory” of the Fourth and Fifth Amendments is also illustrated by Agnello v. United States, 269 U. S. 20 (1925), where the seizure of contraband pursuant to a search hot incident to arrest and otherwise unlawful in violation of the Fourth Amendment was held to permit the accused to invoke the Fifth Amendment when the Government sought to introduce this evidence in a criminal proceeding against him.

       Petitioner relies on the statement in Couch that “possession bears the closest relationship to the personal compulsion forbidden by the Fifth Amendment,” 409 U. S., at 331, in support of his argument that possession of incriminating evidence itself supplies the predicate for invocation of the privilege. Couch, of course, was concerned with the production of documents pursuant to a summons directed to the accountant where there might have been a possibility of compulsory self-incrimination by the principal’s implicit or explicit “testimony” that the documents were those identified in the summons. The risk of authentication is not present where the documents are seized pursuant to a search warrant.

       “The privilege against self-incrimination . . . reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusa-torial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load’ . . . ; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life’ . . . ; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,’ is often ‘a protection to the innocent.’ ”

       Petitioner also contends that the affidavits do not establish probable cause and that the failure of the State formally to introduce the warrants into evidence violated his constitutional rights. These contentions may be disposed of summarily.
      The bases of petitioner’s argument that the affidavits failed to establish probable cause are two: The affidavits, in violation of Aguilar v. Texas, 378 U. S. 108 (1964), did not establish the reliability of the information or the credibility of the informants; and the information on which they were based was so stale that there was no reason to believe that the documents sought were still in petitioner’s possession.
      The affidavits clearly establish the reliability of the information related and the credibility of its sources. The complainants are named, their positions are described, and their transactions with petitioner are related in a comprehensive fashion. In addition, the special-agent affiants aver that they have verified, at least in part, the complainants’ charges by examining their correspondence with petitioner, numerous documents reflecting the transactions, and public land records. Copies of many of these records and documents are attached to the affidavits; others are described in detail. Finally, the agents aver that they have interviewed, with positive results, other persons involved in the real estate transactions that were the object of the investigation. Rarely have we seen warrant-supporting affidavits so complete and so thorough. Petitioner’s probable-cause argument is without merit. See United States v. Ventresca, 380 U. S. 102 (1965).
      It is also argued that there was a three-month delay between the completion of the transactions on which the warrants were based, and the ensuing searches, and that this time lapse precluded a determination that there was probable cause to believe that petitioner’s offices contained evidence of the crime. This contention is belied by the particular facts of the case. The business records sought were prepared in the ordinary course of petitioner’s business in his law office or that of his real estate corporation. It is eminently reasonable to expect that such records would be maintained in those offices for a period of time and surely as long as the three months required for the investigation of a complex real estate scheme. In addition, special investigators knew that petitioner had secured a release on Lot 13T with respect to one lien-holder only three weeks before the searches and that another lien remained to be released. All this, when considered with other information demonstrating that Potomac Woods was still a current concern of petitioner, amply supports the belief that petitioner retained the sought-for records.
      The final contention is that under Bumper v. North Garolina, 391 U. S. 543, 550 n. 15 (1968), the failure of the prosecution formally to introduce the warrants into evidence precludes the State from relying upon them to justify the searches. We reject the argument for two reasons. First, it appears that petitioner based this claim of error solely on state grounds in the Court of Special Appeals. Second, even if the claim is properly before us, it fails. Both the State and the petitioner referred to and extensively discussed the language and terms of the warrants during the suppression hearing, and the trial judge, in deciding the motion to suppress, made numerous references to the warrants. The present case, therefore, is a far cry from Bumper where the prosecution’s assertion that it had a search warrant was made for the first time during oral argument before this Court. There is nothing in the Fourth Amendment that requires us so to exalt formalism over substance.

       “[T]he following items pertaining to sale, purchase, settlement and conveyance of lot 13, block T, Potomac Woods subdivision, Montgomery County, Maryland:
      “title notes, title abstracts, title rundowns; contracts of sale and/or assignments from Raifaele Antonelli and Rocco Caniglia to Mount Vernon Development Corporation and/or others; lien payoff correspondence and lien pay-off memoranda to and from lienholders and noteholders; correspondence and memoranda to and from trustees of deeds of trust; lenders instructions for a construction loan or construction and permanent loan; disbursement sheets and disbursement memoranda; checks, check stubs and ledger sheets indicating disbursement upon settlement; correspondence and memo-randa concerning disbursements upon settlement; settlement statements and settlement memoranda; fully or partially prepared deed of trust releases, whether or not executed and whether or not recorded; books, records, documents, papers, memoranda and correspondence, showing or tending to show a fraudulent intent, and/or knowledge as elements of the crime of false pretenses, in violation of Article 27, Section 140, of the Annotated Code of Maryland, 1957 Edition, as amended and revised, together with other fruits, instru-mentalities and evidence of crime at this [time] unknown.” App. A. 95-A. 96, A. 115.
      Petitioner also suggests that the specific list of the documents to be seized constitutes a “general” warrant. We disagree. Under investigation was a complex real estate scheme whose existence could be proved only by piecing together many bits of evidence. Like a jigsaw puzzle, the whole “picture” of petitioner’s false-pretense scheme with respect to Lot 13T could be shown only by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little. The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the- suspect’s possession. The specificity with which the documents are named here contrasts sharply with the absence of particularity in Berger v. New York, 388 U. S. 41, 58-59 (1967), where a state eavesdropping statute which authorized eavesdropping “without requiring belief that any particular offense has been or is being committed; nor that the 'property’ sought, the conversations, be particularly described,” was invalidated.

       The record discloses that the officials executing the warrants seized numerous papers that were not introduced into evidence. Although we are not informed of their content, we observe that to the extent such papers were not within the scope of the warrants or were otherwise improperly seized, the State was correct in returning them voluntarily and the trial judge was correct in suppressing others.
      We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. Similar dangers, of course, are present in executing a warrant for the “seizure” of telephone conversations. In both kinds of searches, responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.

       Today’s decision is doubtless consistent with the recent trend of decisions to eviscerate Fourth Amendment protections. See, e. g., Texas v. White, 423 U. S. 67 (1975); United States v. Miller, 425 U. S. 435 (1976); United States v. Watson, 423 U. S. 411 (1976); United States v. Santana, ante, p. 38.

       There is no meaningful distinction between requiring petitioner in this ease to stand idly by while papers are extracted from his files and requiring the petitioner in Schmerber v. California, 384 U. S. 757 (1966), similarly to submit to the extraction of blood from his body. In either case, seizure is obtained by compulsion, yet in Schmerber, unlike here, Fifth Amendment limitations were recognized as applicable.

       Similarly, I recognized writing separately in Couch:

      "[S]urely the availability of the Fifth Amendment privilege cannot depend on whether or not the owner of the documents is compelled personally to turn the documents over to the Government. If private, testimonial documents held in the owner’s own possession are privileged under the Fifth Amendment, then the Government cannot nullify that privilege by finding a way to obtain the documents without requiring the owner to take them in hand and personally present them to the Government agents. Where the Government takes private records from, for example, a safety deposit box against the will of the owner of the documents, the owner has been compelled, in my view, to incriminate himself within the meaning of the Fifth Amendment.” 409 TJ. S., at 337 n. (concurring).

       As the Court notes, ante, at 474, Goided also observed that there is no special sanctity in papers rendering them immune from search and seizure. 255 U. S., at 309. The observation, however, was hedged with qualifications, see ibid., and Gouled itself makes clear that this was only a general proposition inapplicable in the case of private papers. See id., at 306.

       The Court cites Marron v. United States, 275 U. S. 192 (1927), as one exception, that decision having permitted the seizure of business records during the search of an illegal liquor business. Marrón, however, provides little, if any, foundation for the Court’s view. Though erring in the light of subsequent eases, the Court there did not view the business records as private papers or testimonial evidence. Rather, the records were viewed merely as “a part of the outfit or equipment actually used to commit the offense.” Id., at 199. Moreover, the aspect. of Marrón upon which the Court relies was clearly overruled in United States v. Lefkowitz, 285 U. S. 452 (1932) — the ostensible effort in Lefkowitz to distinguish it from Marrón notwithstanding.
      The Court also cites Abel v. United States, 362 U. S. 217 (1960), as supporting its position that private testimonial papers may be seized without violating the Fifth Amendment. The papers seized in that case, however, even if fairly characterizable as private and testimonial — a matter about which I have doubt — were not admitted for the purpose of utilizing their testimonial contents as evidence.
      Finally, this Court’s wiretapping cases also lend little support to the Court’s position. Two of those cases expressly recognized the danger to Fifth Amendment rights posed by wiretapping. See Berger v. New York, 388 U. S. 41, 56, 62 (1967); Osborn v. United States, 385 U. S. 323, 329 n. 7 (1966). All cases permitting seizure have involved conversations between two or more parties under other than what could be considered confidential circumstances. Grave questions would be raised, however, where conversations are seized from the privacy of the home or where the conversations are between parties who speak at other than arm’s length. In such circumstances there is danger that the zone of privacy recognized by the Fifth Amendment will have been invaded. See Olmstead v. United States, 277 U. S. 438, 471-479 (1928) (Brandeis, J., dissenting).

       Though one component of the rationale in these cases precluding the seizure of papers appears to be the “mere evidence” rule, which was repudiated in Warden v. Hayden, 387 U. S. 294 (1967), they also view such seizures as tantamount to the compulsion of testimony, an unlawful act conceptually distinct from the once unlawful act of seizing mere evidence. United States v. Lefkowitz, supra, at 466-467, for example, reiterates Boyd’s condemnation of the compulsory extraction of a man’s private papers. Similarly, Weeks v. United States, 232 U. S., at 397, recognized that the seizure of a man’s papers was an offense because it constituted the compulsory production of private papers. Accordingly, the doctrinal demise of the “mere evidence” rule left untouched the principles of these cases respecting the Fifth Amendment. See Fisher v. United States, 425 U. S. 391, 420-422, n. 5 (1976) (Brennan, J., concurring in judgment).

       By further observing that “[t]his case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure,” 387 U. S., at 303, Hayden, at the very least, clearly left open the question whether lawful seizure of testimonial evidence violated the Fifth Amendment.

       Testimony by investigators at the suppression hearing requested by the petitioner indicates that seizure of many of his papers occurred indiscriminately. See App. A. 155, A. 156.