Acting on a complaint from a resident of the 4300 block of Reisterstown Road, Baltimore, Maryland, that there were rats in her basement, Gentry, an inspector of the Baltimore City Health Department, began an inspection of the houses in the vicinity looking for the source of the rats. In the middle of the afternoon of February 27, 1958, Gentry knocked on the door of appellant's detached frame home at 4335 Reisterstown Road. After receiving no response he proceeded to inspect the area outside the house. This inspection revealed that the house was in an "extreme state of decay," and that in the rear of the house there was a pile later identified as "rodent feces mixed with straw and trash and debris to approximately half a ton." During this inspection appellant came around the side of the house and asked Gentry to explain his presence. Gentry responded that he had evidence of rodent infestation and asked appellant for permission to inspect the basement area. Appellant refused. At no time did Gentry have a warrant authorizing him to enter. The next forenoon Gentry, in the company of two police officers, returned to appellant's house. After receiving no response to his knock, he reinspected the exterior of the premises. He then swore out a warrant for appellant's arrest alleging a violation of § 120 of Art. 12 of the Baltimore City Code. That section provides:
The Health Code of the City of Baltimore, of which § 120 is an important part, deals with many of the multiform aspects of hygiene in modern urban areas. A vital portion concerns the hygiene of housing. Typical of the content and method of enforcing its provisions is the section requiring that "[e]very dwelling and every part thereof shall be kept clean and free from any accumulation of dirt, filth, rubbish, garbage or similar matter, and shall be kept free from vermin or rodent infestation." Baltimore City Code, Art. 12, § 112. If the occupant of a building fails to meet this standard, he is notified by the Commissioner of Health to abate the substandard conditions.
We have said that "[t]he security of one's privacy against arbitrary intrusion by the police" is fundamental to a free society and as such protected by the Fourteenth
The history of the constitutional protection against official invasion of the citizen's home makes explicit the human concerns which it was meant to respect. In years prior to the Revolution leading voices in England and the Colonies protested against the ransacking by Crown officers of the homes of citizens in search of evidence of crime or of illegally imported goods. The vivid memory by the newly independent Americans of these abuses produced the Fourth Amendment as a safeguard against such arbitrary official action by officers of the new Union, as like provisions had already found their way into State Constitutions.
In 1765, in England, what is properly called the great case of Entick v. Carrington, 19 Howell's State Trials, col. 1029, announced the principle of English law which became part of the Bill of Rights and whose basic protection has become imbedded in the concept of due process of law. It was there decided that English law did not allow officers of the Crown to break into a citizen's home, under cover of a general executive warrant, to search for evidence of the utterance of libel. Among the reasons given for that decision were these:
Against this background two protections emerge from the broad constitutional proscription of official invasion. The first of these is the right to be secure from intrusion into personal privacy, the right to shut the door on officials of the state unless their entry is under proper authority of law. The second, and intimately related protection, is self-protection: the right to resist unauthorized entry which has as its design the securing of information to fortify the coercive power of the state against the individual, information which may be used to effect a further deprivation of life or liberty or property. Thus, evidence of criminal action may not, save in very limited and closely confined situations, be seized without a judicially issued search warrant. It is this aspect of the constitutional protection to which the quoted passages from Entick v. Carrington and Boyd v. United States refer. Certainly it is not necessary to accept any particular theory of the interrelationship of the Fourth and Fifth Amendments
But giving the fullest scope to this constitutional right to privacy, its protection cannot be here invoked. The attempted inspection of appellant's home is merely to determine whether conditions exist which the Baltimore Health Code proscribes. If they do appellant is notified to remedy the infringing conditions. No evidence for criminal prosecution is sought to be seized. Appellant is simply directed to do what he could have been ordered to do without any inspection, and what he cannot properly resist, namely, act in a manner consistent with the maintenance of minimum community standards of health and well-being, including his own. Appellant's resistance can only be based, not on admissible self-protection, but on a rarely voiced denial of any official justification for seeking to enter his home. The constitutional "liberty" that is asserted is the absolute right to refuse consent for an inspection designed and pursued solely for the protection of the community's health, even when the inspection is conducted with due regard for every convenience of time and place.
The power of inspection granted by the Baltimore City Code is strictly limited, more exacting than the analogous provisions of many other municipal codes. Valid grounds for suspicion of the existence of a nuisance must exist. Certainly the presence of a pile of filth in the back yard combined with the run-down condition of the house gave adequate grounds for such suspicion. The inspection must be made in the day time. Here was no midnight knock on the door, but an orderly visit in the middle of the afternoon with no suggestion that the hour was inconvenient. Moreover, the inspector has no power to force
Thus, not only does the inspection touch at most upon the periphery of the important interests safeguarded by the Fourteenth Amendment's protection against official intrusion, but it is hedged about with safeguards designed to make the least possible demand on the individual occupant, and to cause only the slightest restriction on his claims of privacy. Such a demand must be assessed in the light of the needs which have produced it.
Inspection without a warrant, as an adjunct to a regulatory scheme for the general welfare of the community and not as a means of enforcing the criminal law, has antecedents deep in our history. For more than 200 years Maryland has empowered its officers to enter upon ships, carriages, shops, and homes in the service of the common welfare. In pre-revolutionary days trade, on which the viability of the struggling Colonies depended, was of primary concern. Thus, at a time when the tobacco trade was a vital part of Maryland's economy, inspections of ships and carriages without a warrant could be made to enforce uniform standards for packing and shipping tobacco.
In 1776 the newly independent State of Maryland incorporated, as part of its basic Declaration of Rights, the principle
This provision was a product of the same history of abuse and protest that gave birth to the Fourth Amendment.
From the passage of this ordinance to the present the prevention and abatement of "nuisances" on private property has been one of the chief concerns of the Baltimore City Health Department.
The power here challenged rests not only on a long history of its exercise. It is a power which was continually strengthened and applied to wider concerns through those very years when the right of individuals to be free from peremptory official invasion received increasing legislative and judicial protection. Nor is this a situation where a new body of knowledge displaces previous premises of action. There is a total want of important modification in the circumstances or the structure of society which calls for a disregard of so much history. On the contrary, the problems which gave rise to these ordinances have multiplied manifold, as have the difficulties of enforcement. The need to maintain basic, minimal standards of housing, to prevent the spread of disease and of that pervasive breakdown in the fiber of a people which is produced by slums and the absence of the barest essentials of civilized living, has mounted to a major concern of American government. The growth of cities, the crowding of populations, the increased awareness of the responsibility of the state for the living conditions of its citizens, all have combined to create problems of the
That there is "a total unlikeness" between "official acts and proceedings," Boyd v. United States, 116 U.S. 616, 624, for which the legal protection of privacy requires a
In light of the long history of this kind of inspection and of modern needs, we cannot say that the carefully circumscribed demand which Maryland here makes on appellant's freedom has deprived him of due process of law.
MR. JUSTICE WHITTAKER, concurring.
The core of the Fourth Amendment prohibiting unreasonable searches applies to the States through the Due Process Clause of the Fourteenth Amendment. Wolf v. Colorado, 338 U.S. 25. I understand the Court's opinion to adhere fully to that principle. And being convinced that the health inspector's request for permission to enter petitioner's premises in midday for the sole purpose of attempting to locate the habitat of disease-carrying rodents known to be somewhere in the immediate area was not a request for permission to make, and that the Code procedures followed did not amount to enforcement
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concur, dissenting.
The decision today greatly dilutes the right of privacy which every homeowner had the right to believe was part of our American heritage. We witness indeed an inquest over a substantial part of the Fourth Amendment.
The question in this case is whether a search warrant is needed to enter a citizen's home to investigate sanitary conditions. The Court holds that no search warrant is needed, that a knock on the door is all that is required, that for failure of the citizen to open the door he can be punished. From these conclusions I am forced to dissent.
The Due Process Clause of the Fourteenth Amendment enjoins upon the States the guarantee of privacy embodied in the Fourth Amendment (Wolf v. Colorado, 338 U.S. 25)—whatever may be the means established under the Fourth Amendment to enforce that guarantee. The Court now casts a shadow over that guarantee as respects searches and seizures in civil cases. Any such conclusion would require considerable editing and revision of the Fourth Amendment. For by its terms it protects the citizen against unreasonable searches and seizures by government, whatever may be the complaint. The words are broad and inclusive:
It is said, however, that this fine is so small as to amount only to an assessment to cover the costs of the inspection. Yet if this fine can be imposed, the premises can be revisited without a warrant and repeated fines imposed. The truth is that the amount of the fine is not the measure of the right. The right is the guarantee against invasion of the home by officers without a warrant. No officer of government is authorized to penalize the citizen because he invokes his constitutional protection.
Moreover, the protection of the Fourth Amendment has heretofore been thought to protect privacy when civil litigation, as well as criminal prosecutions, was in the offing. Why otherwise the great care exercised by the Court in restricting agencies like the Federal Trade Commission in making investigations in support of their power to issue cease and desist orders? Fear of trespassing on Fourth Amendment rights was expressly made the
The Court misreads history when it relates the Fourth Amendment primarily to searches for evidence to be used in criminal prosecutions. That certainly is not the teaching of Entick v. Carrington, 19 Howell's St. Tr. col. 1029. At that time—1765—it was the search for the nonconformist that led British officials to ransack private homes. The commands of our First Amendment (as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick v. Carrington, supra. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination but "conscience and human dignity and freedom of expression as well." See Ullmann v. United States, 350 U.S. 422, 445 et seq. (dissent); Feldman v. United States, 322 U.S. 487, 499 (dissent). It is only in that setting that Entick v. Carrington, supra, can be understood, as evidenced by Lord Camden's long review of the oppressive practices directed at the press by the Star Chamber, the Long Parliament, and the Licensing Acts. 19 Howell's St. Tr. cols. 1069-1072. It was in the setting of freedom of expression that Lord Camden denounced the general warrants. Taylor, The American Constitution (1911), p. 234, gives the correct interpretation of that historical episode:
This history, also recounted in Boyd v. United States, 116 U.S. 616, 625-626, was, in the words of Mr. Justice Bradley, "fresh in the memories of those who achieved our independence and established our form of government." The Fourth Amendment thus has a much wider frame of reference than mere criminal prosecutions.
The fallacy in maintaining that the Fourth Amendment was designed to protect criminals only was emphasized by Judge Prettyman in District of Columbia v. Little, 178 F.2d 13, 16-17, aff'd on other grounds, 339 U.S. 1:
Judge Prettyman added that the Fourth Amendment applied alike to health inspectors as well as to police officers—indeed to every and any official of government seeking admission to any home in the country:
The well-known protest of the elder Pitt against invasion of the home by the police, had nothing to do with criminal proceedings.
While this statement did not specifically refer to the general warrant, it was said in reference to the danger of excise officers entering private homes to levy the "Cyder Tax." 15 Hansard, Parliamentary History of England (1753-1765) p. 1307.
Some of the statutes which James Otis denounced did not involve criminal proceedings. They in the main regulated customs and allowed forfeitures of goods shipped into the Colonies in violation of English shipping regulations.
The philosophy of the Fourth Amendment was well expressed by Mr. Justice Butler speaking for the Court in Agnello v. United States, 269 U.S. 20, 32. "The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws." We have emphasized over and again that a search without a warrant can be made only in exceptional circumstances. If a house is on fire or if the police see a fugitive enter a building, entry without a search warrant can of course be made. Yet absent such extraordinary situations, the right of privacy must yield only when a judicial officer issues a warrant for a search on a showing of probable cause. Johnson v. United States, 333 U.S. 10, 14; Trupiano v. United States, 334 U.S. 699, 705; McDonald v. United States, 335 U.S. 451, 454-455. As we said in McDonald v. United States, supra, 455-456:
In the present case, the homeowner agreed to let the inspector in, if he got a search warrant. But none was ever sought. No excuse exists here for not getting a search warrant. A whole day elapsed between the first inspection and the arrest. The only reason given for not getting a warrant was the officer's convenience:
That is indeed flimsy ground for denying this home-owner the constitutional protection afforded by a search warrant.
We have as little reason for excluding this search from the Fourth Amendment as we would for limiting that Amendment to the kinds of warrants James Otis inveighed against—the writs of assistance and the general warrants. Cf. On Lee v. United States, 343 U.S. 747, 762; Schwartz v. Texas, 344 U.S. 199, 205. For as Chief Justice Vinson wrote in Nueslein v. District of Columbia, 73 App. D. C. 85, 87, 115 F.2d 690, 692, while the Fourth Amendment "was written against the background of the general warrants in England and the writs of assistance in the American colonies," it "gives a protection wider than these abuses." See 2 Ala. L. Rev. 314; 3 Vand L. Rev. 820; 63 Harv. L. Rev. 349. It was designed to protect the citizen against uncontrolled invasion of his privacy. It does not make the home a place of refuge from the law. It only requires the sanction of the judiciary rather than
We live in an era "when politically controlled officials have grown powerful through an ever increasing series of minor infractions of civil liberties." 17 U. of Chi. L. Rev. 733, 740. One invasion of privacy by an official of government can be as oppressive as another. Health inspections are important. But they are hardly more important than the search for narcotic peddlers, rapists, kidnappers, murderers, and other criminal elements. As we have seen, searches were once in their heyday when the government was out to suppress the nonconformists. That is the true explanation of Entick v. Carrington, supra. Many today would think that the search for subversives was even more important than the search for unsanitary conditions. It would seem that the public interest in protecting privacy is equally as great in one case as in another. The fear that health inspections will suffer if constitutional safeguards are applied is strongly held by some. Like notions obtain by some law enforcement officials who take shortcuts in pursuit of criminals. The same pattern appears over and again whenever government seeks to use its compulsive force against the citizen. Legislative Committees (Watkins v. United States, 354 U.S. 178; Sweezy v. New Hampshire, 354 U.S. 234), one-man grand juries (In re Oliver, 333 U.S. 257), fire marshals (In re Groban, 352 U.S. 330, 337), police (Rochin v. California, 342 U.S. 165; On Lee v. United States, supra, 762; Leyra v. Denno, 347 U.S. 556), sometimes seek to place their requirements above the Constitution. The official's measure of his own need often does not square with the Bill of Rights.
Certainly this is a poor case for dispensing with the need for a search warrant. Evidence to obtain one was
That problem, while important overall, is not important to the situation with which we deal. Figures submitted by the Baltimore Health Department show that citizens
England—a nation no less mindful of public health than we and keenly conscious of civil liberties—has long proceeded on the basis that where the citizen denies entrance to a health inspector, a search warrant is needed. Public Health Act of 1936, 26 Geo. 5 & 1 Edw. 8, c. 49, §§ 285-287; Vines v. Governors, 63 J. P. 244 (Q. B. 1899); Robinson v. Corporation of Sutherland,  1 Q. B. 751; Wimbledon Urban District Counsel v. Hastings, 87 L. T. Rep. (5 N. S.) 118 (K. B. 1902); Consett Urban District Council v. Crawford,  2 K. B. 183; 24 Halsbury's Laws (2d ed. 1937), p. 102, note m.
We cannot do less and still be true to the command of the Fourth Amendment which protects even the lowliest home in the land from intrusion on the mere say-so of an official.
"Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities, a prophetic glance of his eyes into futurity, and a rapid torrent of impetuous eloquence, he hurried away all before him. American Independence was then and there born. The seeds of patriots and heroes, to defend the Non sine Diis animosus infans; to defend the vigorous youth, were then and there sown. Every man of an immense crouded audience appeared to me to go away as I did, ready to take arms against Writs of Assistance Then and there, was the first scene of the first act of opposition, to the arbitrary claims of Great Britain. Then and there, the child Independence was born. In fifteen years, i. e. in 1776, he grew up to manhood and declared himself free." Id., at 60-61.
Of 57 cities whose health codes were studied by the Urban Renewal Administration, 36 empowered their officers to enter and inspect for violations. See Provisions of Housing Codes in Various American Cities, Urban Renewal Bulletin No. 3 (published by Urban Renewal Administration of the Housing and Home Finance Agency 1956).
For a discussion of some of the problems of Urban Renewal, see Note, 72 Harv. L. Rev. 504.