Recent Developments in the Law of Search and Seizure, 13 Minn. L. Rev. 1 (1928)

13 Minn. L. Rev. 1

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Minnesota Law Review

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University of Minnesota Law School Scholarship Repository Minnesota Law Review, Vols. 1-106:1

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(1917-2021) 1928 Recent Developments in the Law of Search and Seizure Osmond K. Fraenkel

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Part of the Law Commons Recommended Citation Osmond K. Fraenkel, Recent Developments in the Law of Search and Seizure, 13 MINN. L. REV. 1 (1928). Available at: https://doi.org/10.24926/265535.2942 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Minnesota Law Review, Vols. 1-106:1 (1917-2021) collection by an authorized administrator of the Scholarship Repository. For more information, please contact bkeele@umn.edu.

MINNESOTA

LAW REVIEW

Journal of the State Bar Assoctatson

VOLUME 13 DECEMBER, 1928 No. 1

RECENT DEVELOPMENTS IN THE LA\\

OF SEARCH AND SEIZURE

By OSMOND K. FRAENKEL*

S OME years ago, before the rapid development of the subject

under prohibition, I wrote an article which attempted to summanze the history of the fourth amendment and the then state of the law concerning searches and seizures.' Others have since discussed various aspects of the situation2and Mr Cornelius has

*Of the Bar of New York City. 'Concermng Searches and Seizures, (1921) 34 Harv. L. Rev. 361. compiled an extensive book on the subject.' There have, however, been recent developments which justify further discussion.

(a) THE USE OF ILLEGALLY OBTAINED EVIDENCE

The sharp difference of opinion among the various states on the admissibility of evidence obtained by illegal search has been generally noted. Professor Wigmore has been a persistent opponent of the rule laid down by the Supreme Court.' At the time of my earlier article (1920) this federal rule had received the support of only one state-Michigan.' It had, however not been explicitly rejected, the almost complete opposition being based on the old rule that no collateral inquiry would be made at trial as to the manner in which evidence had been obtained." Iowal and Vermont' had. however, permitted such inquiry and anticipated the result, if not the practice, of the Weeks Case'

Atkmson, Admissibility of Evidence obtained through unreasonable searches and seizures, (1925) 25 Col. L. Rev. 11. Atkinson, Prohibition and the Doctrine of the Weeks Case, (1925) 23 Mich. L. Rev. 748 and 59 Am. L. Rev. 728. Baker, Searches and Seizures under the National Prohibition Act, (1928) 16 Geo. L. J. 415. Carpenter, Admissibility of Evidence illegally obtained, (1925) 4 Or. L Rev. 160. Carroll, Search and Seizure Provisions of the Federal and State Constitutions, (1923) 10 Va. L. Rev. 124. Chaffee, Progress of the Law, 1919-1927, Evidence: Searches and Seizures, (1922) 35 Harv. L. Rev. 694. Elledge, Evidence Illegally Ob-tamed, Inadmissible in Criminal Trial, (1927) 5 Tex. L. Rev. 424. Ely, Federal Constitutional Limitations on Searches by State Authority, (1927), 12 St. L. L. Rev. 159. Ely, Probable Cause, (1928) 13 St. L. L. Rev. 101. Freund, Search and Seizure, (1924) 56 Chic. Leg. N. 211. Gault. Requirements as to Search Warrants and the Use of Evidence obtained with and without Warrant, (1926) 4 Mich. S. B. J. 163. Harno, Evidence obtained by Illegal Search and Seizure, (1925) 19 Ill. L. Rev. 303. Lecliner, Right of Search under the Federal Constitution, (1923) 6 Bi-Mo. L. Rev. 2-". McKee, Admissibility of Evidence illegally obtained, (1923) 20 Ohio L. B. 593. Meuth, Admissibility of Evidence obtained by Illegal Search and Seizure, (1923) 11 Ky. L J. 223. Nelson, Search and Seizure, (1923) 9 A. B. A. J. 773. Patterson, Case for admitting in evidence liquor illegally seized, (1924) 3 Ore. L. Rev. 334. Powell, Supreme Court's construction of the Federal Const. in 1920-21, (1922) 20 Mich. L. Rev. 381. 390. Rosebraugh, Case for the exclusion of evidence obtained by illegal search, (1924) 3 Or. L. Rev. 323. Skipworth, Law of Search and Seizure, (1924)

In the intervening years the question has been reconsidered in almost every state. New Hampshire,10 New Mexico" and

1 2 - Vermont alone have had no new cases. plied to Person and Vehicle, (1927) 2 Ala. L. J. 233. White, Admissibility of Evidence illegally obtained, (1923) 20 Ohio L. B. 623. Wigmorc, Using Evidence obtained by Illegal Search and Seizure, (1922) 8 A. B. A. J. 479. Wood, Scope of Constitutional Immunity against Searches and Seizures, (1927) 34 W Va. L. Q. 1, and (1928) 34 W Va. L. Q. 137 Woodson, Search of Automobile on Information without Warrant, (1927) 6 Or. L. Rev. 177 See also notes in 24 A. L. R. 1408 32 A. L. R. 408 40 A. 1_. R. 1145 and 52 A. L. R. 477

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