Boyd v. United States is a landmark case in the development of privacy protections, establishing a relationship between the Fourth and Fifth Amendments to the United States Constitution. In Boyd the Supreme Court ruled that the seizure or compulsory production of a person’s personal papers to be used as evidence against that person is the same as compelling self-incrimination. Ultimately, this broad interpretation of the amendments was severely limited by subsequent Supreme Court cases.
E. A. Boyd & Sons, an importing company, was accused of importing 35 cases of plate glass into New York City without paying a duty required under an 1874 customs act. The two partners in Boyd attempted to import the 35 cases to furnish glass needed in the construction of a government building. The glass specified was foreign glass. The partners understood that if part or all of the glass was furnished from the partnership’s existing duty-paid inventory, it could be replaced by duty free imports. Pursuant to this arrangement, 29 cases of glass were imported duty free. The partners then claimed they were entitled to the duty-free entry of an additional 35 cases, which were soon to arrive. The forfeiture action concerned these 35 cases.
The case as filed was civil in nature, but the Supreme Court ruled that the 1874 customs act, which allowed the imposition of both fines and prison sentences, was essentially criminal in nature. Boyd was accused of committing fraud under that act. To prove his case, the prosecuting attorney needed Boyd’s records of a previous shipment involving 29 cases of plate glass. The district attorney obtained an order from the district judge requiring Boyd to produce the invoice for the 29 cases. Boyd produced the invoice and was found guilty, and the government seized the 35 cases of plate glass. Although he complied with the order, Boyd complained and appealed, arguing his constitutional rights were denied. The Supreme Court ruled in the partners’ favor.
In reaching its decision, the Court spent significant time analyzing the origins of the 1874 act at issue. That act was an amendment of an 1867 act that itself was an amendment of an 1863 act. The original amendments of the act allowed “[t]he district judge, on complaint and affidavit that any fraud on the revenue had been committed by any person interested or engaged in the importation of merchandise, to issue his warrant to the marshal to enter any premises where any invoices, topics, or papers were deposited relating to such merchandise, and to take possession of such topics and papers.” The Court noted that the act “was the first legislation of the kind” ever enacted. It was “adopted at a period of great national excitement [during the Civil War], when the powers of the government were subjected to a severe strain to protect the national existence.” In 1874 the act was amended to allow the Court to order the defendant in the action to produce the topics or papers.
The first step in the Court’s consideration of Boyd’s argument was to find that the requirement that Boyd produce documents in response to a court order was still a “search and seizure” and fell “within the scope of the fourth amendment.” The more difficult question for the Court was whether the search was “an ‘unreasonable search and seizure’ within the meaning of the fourth amendment of the constitution.”
The Court distinguished searches for “stolen or forfeited goods” and “seizure of a man’s private topics and papers for the purpose of obtaining information therein contained.” The simple answer: “In one case, the government is entitled to the possession of the property; in the other it is not,” the Court ruled. Using a historical approach, the Court examined the use of “writs of assistance” in England and the colonies before the American Revolution. Basically, a writ of assistance allowed a revenue officer collecting taxes for the crown to search any home or building for smuggled goods. Colonists, who were smuggling a wide variety of goods to avoid taxes imposed by the king, hated the practice. The Court noted that in 1761 Boston patriot James Otis called the writs “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law topic, since they placed ‘the liberty of every man in the hands of every petty officer.’” The Supreme Court noted that Otis’s comments occurred during a debate that was “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.” In other words, opposition to the writs, and the searches they allowed, was a fundamental cause of the Revolutionary War.
To show the impropriety of the legislation under consideration in the case, the Supreme Court then discussed two cases that essentially resulted in the end of general warrants in Britain. General warrants, like writs of assistance, allowed officers to seize persons or papers and, more specifically, were frequently issued to allow searches of private homes for topics or papers that could be used to convict the home owner of libel.
The first case was that of John Wilkes, developer of the North Briton, a newspaper that frequently denounced the crown and was considered “heinously libelous.” In April 1763 Wilkes published an article in his paper lambasting the king for a message presented in Parliament. After that, Lord Halifax, the British secretary of state, issued a general warrant and Wilkes’s home was searched. Wilkes was arrested and temporarily imprisoned in the Tower of London. After charges were dismissed, Wilkes sued for trespass. He won. The officer who searched Wilkes’s home was ordered to pay £1000 and Halifax was ordered to pay £4000.
The second case was Entick v. Carrington and Three Other King’s Messengers, decided in 1765. Lord Halifax had again issued a general warrant, and the resulting search of John Entick’s home found no libelous materials. In concluding his decision, Lord Camden noted, “It is very certain that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty.”
The importance of these old English cases for the Supreme Court lay not in the holdings alone but in the fact that “every American statesman, during our revolutionary and formative period as a nation, was undoubtedly familiar” with the principles expressed in those decisions. In other words, when the Founding Fathers incorporated the right against self-incrimination into the Constitution, they were incorporating the principles that had been decided in British courts almost two decades before the Constitution and the Bill of Rights were drafted. The Court concluded that the drafters of the Constitution would never have approved of the series of statutes under consideration in Boyd: “The struggles against arbitrary power in which they had been engaged for more than 20 years would have been too deeply engraved in their memories to have allowed them to approve of such insidious disguises of the old grievance which they had so deeply abhorred.”
For the Supreme Court, the critical questions addressed by British courts in the cited cases were at the very foundation of the concepts of “constitutional liberty and security.” Following its review of that history, the Court concluded that “any 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, or to forfeit his goods” should be condemned.
The next step in the Court’s analysis was to consider the statutory history leading up to the customs act of 1867. The Court found that the first congress, in creating the Judiciary Act of 1789, granted courts the power to compel persons to turn over topics or documents in their possession, provided such documents would have been ordered to be produced under the “ordinary rules of chancery.” The Court then noted, “Now it is elementary knowledge that one cardinal rule of the court of chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property. And any compulsory discovery by extorting the party’s oath, or compelling the production of his private topics and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government.”
Then the court examined the language of the Fourth and Fifth Amendments to the constitution:
We have already noticed the intimate relation between the two amendments. They throw great light on each other. For the “unreasonable searches and seizures” condemned in the fourth amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the fifth amendment; and compelling a man “in a criminal case to be a witness against himself,” which is condemned in the fifth amendment, throws light on the question as to what is an “unreasonable search and seizure” within the meaning of the fourth amendment.
The Court concluded there simply is no rational difference between the “seizure of a man’s private topics and papers to be used in evidence against him” and “compelling him to be a witness against himself.” The Court then warned that in order to protect against the erosion of “constitutional provisions for the security of person and property,” the courts must liberally construe those freedoms rather than apply a strict construction that “deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.”
Several of the Boyd Court’s holdings have not stood the test of time. Perhaps the most critical shortcoming is the failure of subsequent courts to follow the recommendation that protections of liberties be liberally construed.
Specifically, the application of the Fourth Amendment to subpoenas was limited by Hale v. Henkel, 201 U.S. 43 (1906). Purely evidentiary (but “nontestimo-nial”) materials, as well as contraband and fruits and instrumentalities of crime, may now be searched for and seized under proper circumstances (Warden v. Hay-den, 387 U.S. 294 (1967)). Also, the Supreme Court has eliminated the idea that “testimonial” evidence may never be seized and used in court (see Katz v. United States, 389 U.S. 347 (1967),establishing a reasonable expectation of privacy test for admission of tape-recorded conversations; and Osborn v. United States, 385 U.S. 323 (1966), on admissibility of tape-recorded conversation between attorney and client).
It is also clear that the Fifth Amendment does not independently prohibit the compelling of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating. The courts have therefore declined to extend the protection of the privilege to the provision of blood samples (Schmerber v. California, 384 U.S. 757, 763-764 (1966)), handwriting exemplars (Gilbert v. California, 388 U.S. 263, 265-267 (1967)), or voice exemplars (United States v. Wade, 388 U.S. 218, 222-223 (1967)) or to the donning of a blouse worn by the perpetrator (Holt v. United States, 218 U.S. 245 (1910)). Furthermore, despite Boyd, neither a partnership nor the individual partners are shielded from the compelled provision of partnership records on self-incrimination grounds (Bellis v. United States, 417 U.S. 85 (1974)).
The conclusion in Boyd that a person may not be forced to produce private papers has nonetheless often appeared as dictum in later Supreme Court decisions. To the extent, however, that the rule against compelling the production of private papers rested on the proposition that seizures of or subpoenas for “mere evidence,” including documents, violated the Fourth Amendment and therefore also transgressed the Fifth, the foundations for the rule have been washed away. In consequence, the prohibition against forcing the production of private papers has long been a rule searching for a rationale consistent with the proscriptions of the Fifth Amendment against compelling a person to give “testimony” that is self-incriminating.
The Supreme Court has noted that the act of producing evidence in response to a subpoena has communicative aspects of its own, wholly unrelated to the contents of the papers produced. Compliance tacitly concedes the papers’ existence and their possession or control by some party. It could also indicate a party’s belief that the papers are those sought (Curcio v. United States, 354 U.S. 118, 125 (1957)). Elements of compulsion are present, but the more difficult question is whether the “tacit averments” of the party are both “testimonial” and “incriminating” under the Fifth Amendment.
It is unlikely that admitting the existence and possession of papers will rise to the level of testimony afforded protection under the Fifth Amendment. When the existence and location of the papers are a foregone conclusion, a party adds little or nothing to the sum total of the government’s information by conceding that he in fact has the papers. Under these circumstances, by enforcement of the summons “no constitutional rights are touched. The question is not of testimony but of surrender” (In re Harris, 221 U.S. 274, 279 (1911)).
The historical and statutory history relied on by the Supreme Court in Boyd have great appeal to those concerned with finding privacy rights in the Constitution. But with subsequent Supreme Court rulings on specific evidentiary questions and with the denial of any convergence between the Forth and Fifth constitutional amendments, the holding in Boyd has effectively been reversed.