No. 74-1646
Argued: February 25, 1976Decided: June 29, 1976
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- 1. The search of petitioner’s offices for business records, their seizure, and subsequent introduction into evidence did not offend the Fifth Amendment’s proscription that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Although the records seized contained statements that petitioner voluntarily had committed to writing, he was never required to say anything. The search for and seizure of these records were conducted by law enforcement personnel, and when the records were introduced at trial, they were authenticated by prosecution witnesses, not by petitioner. Therefore, any compulsion of petitioner to speak, other than the inherent psychological
- pressure to respond at trial to unfavorable evidence, was not present. Pp. 470-477.
- 2. The searches and seizures were not “unreasonable” in violation of the Fourth Amendment. Pp. 478-484.
- (a) The warrants were not rendered fatally “general” by the “together with” phrase, which appeared in each warrant at the end of a sentence listing the specified items to be seized, all pertaining to Lot 13T. This 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. Pp. 479-482.
- (b) The seizure of the documents pertaining to a lot other than Lot 13T in the same subdivision and subject to the same liens as Lot 13T did not violate the principle that when 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,” Warden v. Hayden, 387 U.S. 294, 307 . The investigators reasonably could have believed that the evidence specifically dealing with fraudulent conduct respecting the other lot could be used to show petitioner’s intent to defraud with respect to Lot 13T, and although such evidence was used to secure additional charges against petitioner, its suppression was not required. Pp. 482-484.
24 Md. App. 128, 331 A. 2d 78, affirmed.
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 Solicitor [427 U.S. 463, 465] General Frey, Stuart A. Smith, and Edward R. Korman.
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 Andresen 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 [427 U.S. 463, 466] 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. 1 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 [427 U.S. 463, 467] 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 [427 U.S. 463, 468] 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. 2 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. 3 The fifth item contained drafts of [427 U.S. 463, 469] 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. 4 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). [427 U.S. 463, 470]
We granted certiorari limited to the Fourth and Fifth Amendment issues. 423 U.S. 822 (1975). 5
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 [427 U.S. 463, 471] 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 [427 U.S. 463, 472] 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. 6 Compulsion of the accused was also absent in Couch v. United States, [427 U.S. 463, 473] 409 U.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. 7
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 [427 U.S. 463, 474] 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 [427 U.S. 463, 475] 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 [427 U.S. 463, 476] any of the policies undergirding the privilege. Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964). 8
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 accusatorial system and manifestations of its demands.” Watts v. Indiana, 338 U.S. 49, 54 (1949). None of these [427 U.S. 463, 477] 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.” [427 U.S. 463, 478]
III
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). 9 [427 U.S. 463, 479]
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 [427 U.S. 463, 480] 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. 10 We think it clear from the context [427 U.S. 463, 481] 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 [427 U.S. 463, 482] other crimes but only to search for and seize evidence relevant to the crime of false pretenses and Lot 13T. 11
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 [427 U.S. 463, 483] 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:
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- “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.
