Chapman v. United States (365 U.S. 610)/Dissent Clark
Mr. Justice CLARK, dissenting.
The Constitution condemns only an unreasonable search. As my Brother FRANKFURTER says, that determination 'turns on the circumstances presented by a particular situation.' 
As I read the record, Bridgaman had rented a house to Chapman. On a Sunday morning he called at the house to invite Chapman to church services. However, Bridgaman found Chapman gone, the house locked up and an 'awful scent' of whiskey mash all over the place, including an open but empty cellar. He reported these facts to state officers and, at his suggestion, two officers accompanied him to the house. They too smelled, as the Court says, 'a strong odor of 'whiskey mash' coming from the house.'
Under Georgia law, the use of premises for the manufacture or the keeping of liquor for disposition works 'a forfeiture of the rights of any lessee or tenant under any lease or contract for rent * * *.' ; Bridgaman advised the officers he was the owner of the house, had it leased out, and 'instructed' officer Harbin to enter it and 'see what('s) what in there.' The officers found a bathroom window unlocked. Bridgaman 'told' the officers 'to go in the window' and assisted in 'boosting' officer Harbin into the window and on into the house. Inside, the officer found a still set up for operation and 1,300 gallons of whiskey mash in the vats. There was neither household furniture nor other evidence of residential occupancy.
The Court sets aside Chapman's conviction on the ground that this search without a warrant was 'unreasonable.' For the life of me I cannot see why this is true. I agree with a unanimous Court of Appeals that 'under the circumstances of the search here made by the State officers, no illegality was shown.' (272 F.2d 73.)
The 'reasonableness' of the search hinges on the rights of the landlord under Georgia law in such a situation.
This Court refuses to honor the clear language of § 106, apparently because the Government 'cites no Georgia or other case' holding that a landlord may, under the circumstances here, enter on his premises. Instead, it bases its reversal on Taylor v. United States, 286 U.S. 1, 52 U.S. 466, 76 L.Ed. 951, and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 369, 92 L.Ed. 436, involving entry by officers, unaccompanied by the landlord, into a home without a search warrant when there was ample time to secure one. This doctrine, established by Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, was repudiated and specifically overruled only two years later in United States v. Rabinowitz, 339 U.S. 56, at page 66, 70 S.Ct. 430, at page 435, 94 L.Ed. 653. Furthermore, none of the cases cited by the Court involve the landlord-tenant circumstance controlling here.
As to Georgia law, the Court itself finds that 'no Georgia case' holds that landlords have a right of entry as was exercised by Bridgaman here. It says that, first, the window was forced, second, the entry was for purposes of search and, third, affirmance would "leave (tenants') homes secure only in the discretion of (landlords)" (quoting from Johnson, supra). The obvious answer to that is: 'Chapman was a tenant no more!' The statute provided for the forfeiture of his lease at his lessor's option when he began making whiskey on the premises. And Bridgaman so elected when he directed the officers to enter the house. It was Chapman who was the trespasser, not Bridgaman. The latter was merely repossessing his property, not abating a nuisance. Therefore, § 109 of the Georgia Code, cited by the Court, has no bearing here for that statute merely provides that the Attorney General 'may' abate such a nuisance. It has no reference to landlords qua landlords. Indeed, the officers here could have abated the nuisance without judicial help by destroying the still and all of its paraphernalia under authority of 58 Ga.Code Ann. (Cum. Supp.1958) § 207.  Likewise, Kilgore v. Paschall, 202 Ga. 416, 43 S.E.2d 520, also cited by the Court, is entirely inapposite. That case merely holds that the special statutory authorization, under an entirely different provision of the Georgia Code, § 110, to close up 'blind tigers,' i.e., public places of disrepute where gambling, drinking, etc., are carried on, must be brought by the Solicitor of the county wherein they are located. But even if it did hold that actions under § 109 must be brought by the Solicitor, that ruling would have no effect here, precisely because the present factual situation does not come under § 109 but under § 106 and § 207, supra.
Furthermore, there was ample reason for not getting a warrant here. It was Sunday afternoon and, as the Georgia officer testified, he had 'never got on on Sunday.' 'I don't think you can.' And this was buttressed by his further statements: 'Well, I didn't feel no call to get one.' 'The man that owned the house, he was there and he told us to go in the window and see what('s) what in there, so we went on in.' This shows a complete reliance by the officers on Bridgaman's direction to enter the house. This, I say, made the search entirely reasonable and therefore valid under the Fourth Amendment.
Every moment of every day, somewhere in the United States, a law enforcement officer is faced with the problem of search and seizure. He is anxious to obey the rules that circumscribe his conduct in this field. It is the duty of this Court to lay down those rules with such clarity and understanding that he may be able to follow them. For some years now the field has been muddy, but today the Court makes it a quagmire. It fashions a novel rule, supporting it with an old theory long since overruled. If Rabinowitz is no longer law the Court should say so. It is disastrous to law enforcement to leave at large the inconsistent rules laid down in these cases. It turns the wellsprings of democracy-law and order-into a slough of frustration. It turns crime detection into a game of 'cops and robbers.' We hear much these days of an increasing crime rate and a breakdown in law enforcement. Some place the blame on police officers. I say there are others that must shoulder much of that responsibility.
^1 I join in his opinion except for the last paragraph in which he concurs in the judgment of the court.
^2 58 Ga.Code Ann., § 106. Aside from eviction, there are no statutory procedural requirements as to forfeiture, the forfeit operating by virtue of § 106 at the option of the landlord.
^3 Section 207 provides in pertinent part: '(W)henever said apparatus (for making liquor is) * * * found or discovered by any sheriff, * * * the same shall be summarily destroyed and rendered useless by him without any formal order of the court.'