NCJ Number
39759
Journal
Brooklyn Law Review Volume: 43 Issue: 2 Dated: (WINTER 1977) Pages: 489-506
Date Published
1977
Length
18 pages
Annotation
N ANDRESEN V. MARYLAND (1976), THE SUPREME COURT HELD THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION DID NOT BAR THE INTRODUCTION IN EVIDENCE OF PERSONAL BUSINESS DOCUMENTS SEIZED PURSUANT TO A VALID SEARCH WARRANT.
Abstract
PRIOR TO ANDRESEN, PERSONAL DOCUMENTS CONTAINING INCRIMINATORY EVIDENCE HAD BEEN CONSIDERED THE ILLEGAL OBJECT OF AN OTHERWISE VALID SEARCH WARRANT, AND THEIR SUBSEQUENT INTRODUCTION INTO EVIDENCE HAD BEEN THOUGHT TO VIOLATE THE FIFTH AMENDMENT. CRITICAL TO THIS PROPOSITION WAS THE PRECEPT THAT BOTH THE FOURTH AND FIFTH AMENDMENTS HAVE A COMMON CONCERN - THE PROTECTION OF AN INDIVIDUAL'S PRIVACY. HOWEVER, IN ANDRESEN THE CONCERN THAT THE PRIVILEGE AGAINST SELF-INCRIMINATION PRESERVES THE RIGHT OF EACH INDIVIDUAL TO A PRIVATE ENCLAVE WHERE HE MAY LEAD A PRIVATE LIFE WAS IMPLICITLY REJECTED. THE ANDRESEN COURT HAS DRAWN A DISTINCTION BETWEEN SEARCH AND SEIZURE AND COMPELLED SELF-INCRIMINATION, THEREBY TERMINATING THE INTERPLAY BETWEEN THE TWO AMENDMENTS. THE ELEMENT OF TESTIMONIAL COMPULSION, NECESSARY TO THE INVOCATION OF THE FIFTH AMENDMENT, WAS FOUND ABSENT INDICATING THAT NOW IT IS THE MANNER OF ACQUISTION WHICH IS PARAMOUNT, NOT THE NATURE OF THE EVIDENCE. PRAGMATICALLY, LAW ENFORCEMENT PERSONNEL HAVE BEEN FURNISHED WITH AN EFFECTIVE TOOL, I.E., THE SEARCH WARRANT, FOR ACQUIRING CERTAIN DOCUMENTARY EVIDENCE OF CRIME HERETOFORE IMMUNE FROM SEIZURE....ELW