Cf. Warden v. Haiiden. .387 U.S. 294. 309. 87 S.Ct. 1642. 1651. 18 L.Ed. 2d 782 (1967).
Finally, the District Court overlooked the fact that the California Supreme Court h.ns
ruled as a matter of state law that the legality of a search and seizure may be chnllpnff<vl
by anyone against whom evidence thus obtained is used. Kaplan v. Superior Court, 6 Cal.Sd
150. 08 Cal.T{i)tr. 640. 101 r.2d 1 (1971).
^"Petitioners assert that the District Court ignored the realities of California law and
practice that are said to preclude or make very difficult the use of subpoenas as investicatory
techniques. If true, the choice of procedures may not alw'ays be open to the diligent
prosecutor in the State of California.
445
nearly per se rule forbidding the search warrant and permitting only the sub-
poena duces tecum. The general submission Is that searches of newsi)ai)er othces
for evidence of erinie reasonably believed to be on tlie premises will seriously
threaten the ability of tlie press to gather, analyze, and disseminate news. Tliis
is said to be true for several reasons : lirst, searches will be pliysically disrui)tive
to such an extent that timely publication will be impeded. Second, confidential
sources of information will dry up. and the press will also lose opi^ortunitics to
cover various events because of fears of the participants that press tiles will be
readily available to the aulhorities. Third, reporters will be deterred from re-
cording and preserving their recollections for future use if such inlormation is
subject to seizure. Fourth, the processing of news and its dissemination will 1)6
chilled by the prosi)ects that searches will disclose internal editorial delibera-
tions. Fifth, the press will resort to self-censorship to conceal its possession of
information of iwtential interest to the police.
[13-16] It is true that the struggle from which the Fourth Amendment
emerged "is largely a historv of conllict between the Crown and the press,"
Stiniford v. Tcaus, 379 U.S. 470, 482, 8r> S.Ct. 506. 510, 13 L.Ed.2d 431 (1905»,
and that in issuing warrants and determining the reasonableness of a search,
state and federal magistrates should be aware that "unrestricted power of
search and seizure could also be an instrument for stifling liberty of expression."
Marchiis v. Search Warrant. 307 U.S. 717, 729, 81 S.Ct. 1708, 1715. 6 L.Ed.2d
1127 (1961). Wliere the materials sought to be seized may be protected by the
First Amendment, the requirements of the Fourth Amendment must be applied
with "scrupulous exactitude." Stanford v. Texas, supra, 379 U.S., at 485, 85
S.Ct.. at 511. "A seizure reasonable as to one type of material in one setting may
be unreasonable in a different setting or with respect to another kind of mate-
rial." Roaden v. Kentucky. 413 U.S. 496, 501. 93 S.Ct. 2796, 2800, 37 L.Ed.2d 757
(1973). Hence, in Stanford v. Texas, the Court invalidated a warrant authoriz-
ing the search of a private home for all books, records, and other materials
relating to the Communist Party, on the ground that whether or not the warrant
would have been sufficient in other contexts, it authorized the searchers to rum-
mage among and make .iudgments about books and papers and was the functional
equivalent of a general warrant, one of the principal targets of the Fourth
Amendment. Where lu'esumptively protected materials are sought to be seized,,
the warrant requirement should be administered to leave as little as jiossible to-
the discretion or Vi him of the officer in the field.
Similarly, where seizure is sought of allegedly obscene materials, the judg-
ment of the arresting officer alone is insufl^cient to justify issuance of a search
warrant or a seizure without a warrant incident to arrest. The procedure for
determining probable cause must afford an opportunity for the judicial officer
to "focus searchingly on the question of obscenity. '' Marcus v. Search Warrant,
supra, .307 U.S.. at 732, 81 S.Ct., at 1716: A Qnanfity of Books v. Kansas. 378
U.S. 205, 210, 84 S.Ct. 172.3. 172.5, 12 L.Ed.2d 809 (19fM) : Lcc Art Theatre. Inc. v.
Virginia. 392 U.S. 630. 637. 88 S.Ct. 2103. 2104. 20 L.Ed.2d 1313 (1968) : Roaden v.
Kentucky, supra. 413 U.S. at 502, 93 S.Ct. at 2800: Heller v. Neiv York, 413 U.S.
483. 489. 93 St.Ct. 2789. 2793. 37 L.Ed.2d 745 (1973).
[17. 18] Neither the Fouith Amendment nor the cases requiring consideration
of First Amendment values in issuing search warrants, however, call for imposing
the regime ordered by the District Court. Aware of the long struggle between
Crown and press and desiring to curb unjustified official intrusions, the Frumers
took the enormously important step of subjecting searches to the test of reason-
ableness and to the general rule requiring search warrants issued by neutral
magistrates. They nevertheless did not forbid warrants where the press was
involved, did not require special showings that subpoenas would be impractical,
and did not insist that the owner of the place to be searched, if connected witli
the press, must be shown to be implicated in the offenses being investigated.
Further, the prior cases do no more than insist that the courts apply the warrant
requirements with particular exactitude when First Amendment interests would
be endangered by the search. As we see it. no more than tliis is required wliere the
warrant requested is for the seizure of criminal evidence rensoimlily believed
to be on the premises occupied by a new.si)ar/er. Properly administered, the pre-
conditions for a warrant — probable cause, specificity with respect to the i)lac<> to
be searched and the things to be .seized, and overall reasonableness — sliould afford
sufficient protection against the harms that are assertedly threatened by war-
rants for searching newspaper offices.
There is no rea.son to believe, for example, that magistrates cannot guard
against searches of the type, scope, and intrusiveness that would actually inter-
446
fere with the timely publication of a newspaper. Nor, if the requirements of
specificity and reasonableness are properly applied, policed, and observed, will
there be any occasion or opportunity for officers to rummage at large in news-
paper files or to intrude into or to deter normal editorial and publication deci-
sions. The warrant issued in this case authorized nothing of this sort. Nor are
we convinced, anymore than we were in Branzhurg v. Hayes, 408 U.S. 665, 92
S.Ct. 2646, 33 L.Ed.2d 626 (1972), that confidential sources will disappear and
that the press will suppress news because of fears of warranted searches. What-
ever incremental effect there may be in this regard if search warrants, as well as
subpoenas, are permissible in proper circumstances, it does not make a consti-
tutional difference in our judgment.
The fact is that respondents and atnici have pointed to only a very few in-
stances in the entire United States since 1971 involving the issuance of warrants
f(»r searching newspaper premises. This reality hardly suggests abuse; and if
abuse occurs, there will be time enough to deal with it. Furthermore, the press
is not only an important, critical, and valuable asset to society, but it is not
easily intimidated — nor should it be.
[19-21] Respondents also insist that the press should be afforded opportunity
to litigate the State's entitlement to the material it seeks before it is turned over
ov seized and that whereas tbe search warrant procedure is defective in this
respect, resort to the subpoena would solve the problem. The Court has held that
a restraining order imposing a prior restraint upon free expression is invalid
for want of notice and opportunity for a hearing. Carroll v. Princess Anne. 393
U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (196S). and that seizures not merely for
use as evidence but entirely removing argual)ly protected materials from circu-
lation may be effected only after an adversary hearing and a judicial finding
of obscenity. A Quantity of Books v. Kansas, 37.'S U.S. 205, 84 S.Ct. 1273, 12
Li.Ed.2d 809 (1964). But presumptively protected materials are not necessarily
immune from seizure under warrant for use at a criminal trial. Not every such
seizure, and not even most, will impose a prior restraint. Heller v. New York,
supra. And surely a warrant to search newspaper premises for criminal evidence
such as the one issued here for news photographs taken in a pultlic place carries
no realistic threat of prior restraint or of any direct restraint whatsoever on
-the publication of the Daily or on its communication of ideas. The hazards of
â– such warrants can be avoided by a neutral magistrate carrying out his responsi-
bilities under the Fourth Amendment, for he has ample tools at his disposal to
.confine wan-ants to search within reasonable limits.
[22] We note finally that if the evidence sought by warrant is suflSciently con-
nected with the crime to satisfy the probable cause requirement, it will very likely
be sufficiently relevant to justify a subpoena and to withstand a motion to quash.
Further, Fifth Amendment and state shield law objections that might be as-
serted in opposition to compliance with a subpoena are largely irrelevant to
detremining the legality of a search warrant under the Fourth Amendment. Of
course, the Fourth Amendment does not prevent or advise against leigslative or
executive efforts to establish nonconstitutional protections against possible abuses
of the search warrant procedure, but we decline to reinterpret the Amendment
to impose a general constitutional barrier against warrants to search newspaper
premises, to require resort to subpoenas as a general rule, or to demand prior
notice and hearing in connection with the issuance of search warrants.
We accordingly reject the reasons given by the District Court and adopted by
the Court of Appeals for holding the search for photographs at the Stanford Daily
to have been unreasonable within the meaning of the Fourth Amendment and iu
violation of the First Amendment. Nor has anything else presented here per-
suaded us that the Amendments forbade this search. It follows that the judg-
pient of the Court of Appeals is reversed.
So ordered.
Mr. .Tustioe Brennan took no part in the consideration or decision of this case.
Mr. .Justice Powell, concurring.
I join the opinion of the Court, and I write simply to emphasize what I take to
be the fundamental error of Mr. Justice STEWART'S dissenting opinnon. As I
understand that opinion, it would road into the Fourth Amendment, as a new
and per se exception, the rule that any search of an entity protected by the Press
Clause of the First Amendment is imreasonable so long as a subpoena could be
used as a substitute procedure. Even aside from the difficulties involved in de-
piding on a cfise-by-case bnsi.«i whether a subpoena can serve as an adequate
447
siibstittite.* I agree with the Court that there is no constitutional basis for such
a reading.
If the Framers had believed that the press was entitled to a special procedure,
not available to otliers, when government authorities required evidence in its
possession, one would have expected the terms of the Fourth Amendment to
reflect that belief. As the opinion of the Court points out, the struggle from which
the Fourth Amendment emerged was that between Crown and i)ress. Anfr. at
1981. The Framers were painfully aware of that history, and their response to
it was the Fourth Amendment. Ante, at 1981. Hence, there is every reason to
believe that the usual procedures contemplated by the Fourth Amendment do
indeed api)ly to the press, as to every other person.
This is not to say that a warrant which would be sufficient to support the
search of an ajmrtment or an automobile necessarily would be reasonable in
supporting the search of a newspaper oftice. As the Courfs oinnion makes clear,
ante, at 1981, 1982, the magistrate must judge the reasonableness of every war-
rant in light of the circumstances of the particular case, carefully considering
the description of the evidence .sought, the situation of the premises, and the
l>osition and interests of the owner or occupant. While there is no justification
for the establishment of a separate Fourth Amendment procedure for the press,
a magistrate asked to issue a warrant for the search of jiress offices can and
should take cognizance of the independent values protected by the First Amend-
ment — such as those highlighted by Mr. .Justice STEWART — when he weighs
such factors. If the reasonablene.ss and particularity requirements are thus
applied, the dangers are likely to be minimal." Ibid.
In any event considerations such as these are the pi'ovince of the Fourth
Amendment. There is no authority either in history or in the Constitution itself
for exempting certain classes of persons or entities from its reach.'
Mr. Justice Stewart, with whom Mr. Justice Marshall joins, dissenting.
Believing that the search by the police of the offices of The Stanford Daily
1 For example, respondent h.id .innounced a policy of destroying any phofojrraphs that
might aid prosecution of protestors. Apr. 118. l.")2-153. While this policy probably reflected
the deep feelings of the Vietnam era, and one may assume that under normal circumstnnces
few. If any, press entities would adopt a policy so hostile to law enforcement, respondent's
policy at least illustrates the possibility of such hostility. Use of a subpoena, as proposed by
the dissent would be of no utility in face of a policy of destroying evidence. And unless the
policy were publicly announced, it probably would be difficult to show the impracticallty of
a subpoena as opposed to a search warrant.
At oral argument, counsel for respondent stated that the announced policy of the Stan-
ford Daily conceivably could have extended to the destruction of evidence of any crime :
"QrESTioN. Let us assume you had a picture of the commission of a crime. For example,
in banks they take pictures regularly of. not only of robbery but of murder committed in
a bank and there have been pictures taken of the actual pulling of the trigger or the pointing
of the gun and pulling of the trigger. There is a very famous one related to the assassination
of President Kennedy.
"What would the "policy of the Stanford Daihj be with respect to that? Would it feel free
to destroy it at any time before a subponea had been served?
"Mr. Falk. The — literally read, the policy of the Daily requires me to give an affirmative
answer. I find it hard to believe that in an example such as that, that the policy v ould
have been carried out. It was not addressed to a picture of that kind or in that context.
"Question. W^ell, I am sure you were right. I was just getting to the scope of your theory.
Mr. Falk. Our — - —
"Question. What is the difference between the pictures Justice Powell just described
and the pictures they were thought to have?
"Mr. Faf.k. Well, it simply is a distinction that — —
"Question. Attacking police officers instead of the President. That is the only difference."
While the existence of this policy was not before the magistrate at the time of the
warrant's issuance. .S.5.3 F.Supp. 124*. 1."..5 n. 16 (ND Cal. 1972), it illustrates the possible
dangers of creating separate standards for the press alone.
• - Similarly, tlie magnitude of a proposed search directed at ana third party, togetlier
with the nature and significance of the material sought, are factors properly considered
as bearing on the reasonableness and particularity requirements. Moreover, there is no
reason why police officers executing a warrant should not seek the cooperation of the
subject party, in order to prevent needless disruption.
3 The concurring opinion in Branzburg v. Ilaijes. 408 U.S. 66.5. 709-710, 92 S.Ct. 2646,
2671, 33 L.Ed.2d 626 (1972) (Powell, J., concurring), does not support the view that
the Fourth .Amendment contains an implied exception for the press, through the opera-
tion of the First Amendment. That opinion noted only that in considering a motion to
quash a subpoena directed to a newsman, the court should balance the competing values
of a free press and the societal interest in detecting and prosecuting crime. The concur-
rence expressed no doubt as to the applicability of the subpoena procedure to- members
Of the press. Rather than advocating the creation of a special procedural exception for
the press, it approved recognition of First Amendment concerns within the apulicable
procedure. The concurring opinion may, however, properly be read as suporting the
view expressed In the text above, and in the Court's opinion, that under the warrant
requirement of the Fourth Amendment, the magistrate should consider the values of a
free press as well as the societal interest in enforcing the criminal laws.
448
in f linseed the First and Fourteenth Amendments' guarantee of a free press, I
respectfully dissent.^
I
It seems to me self-evident that police searches of newspaper offices burden
the freedom of the press. The most immediate and obvious First Amendment in-
jury caused by such a visitation by the police is physical disruption of the opera-
tion of the newspaper. Policemen occupying a newsroom and searching it
thoroughly for what may be an extended period of time ^ will inevitably interrupt
its normal operations, and thus impair or even temporarily prevent the processes
of newsgathering, writing, editing, and publishing. By contrast, a subpoena woidd
afford the newspaper itself an opportunity to locate whatever material might be
reiiuested and produce it.
But there is another and more serious burden on a free press imposed by an
unannounced police search of a newspaper office: the possibility of disclosure
of information received from confidential sources, or of the identity of the sources
themselves. Protection of those sources is necessary to ensure that the press can
fulfill its constitutionally designated function of informing the public,^ because
impoi'tant information can often be obtained only by an assurance that the source
will not be revealed. Branzhurg v. Hayes, 408 U.S. 665, 725-736, 92 S.Ct. 2646,
2671-2677. 33 L.Ed.2d 626 (dissenting opinion).* And the Court has recognized
that "without some protection for seeking out the news, freedom of the press
could be eviscerated.' " Pell v. Procunier, 417 U.S. 817, 833, 94 S.Ct. 2800, 2809,
41 L.Ed.2d 495.
Today the Court does not question the existence of this constitutional pro-
tection, but says only that it is not "convinced . . . that confidential sources will
disappear and that the press will suppress news because of fears of warranted
searches." Ante, at 1982. This facile conclusion seems to me to ignore common
â– experience. It requires no blind leap of faith to understand that a person who
gives information to a journalist only on condition that his identity will not be
revealed will be less likely to give that information if he knows that, despite the
journalists' assurance his identity may in fact be disclosed. And it cannot be de-
nied that confidential information may be exposed to the eyes of police officers
who execute a search warrant by rummaging through the files, cabinets, desks
and waste-baskets of a newsroom.^ Since the indisputable effect of such searches
will thus be to prevent a newsman from being able to promise confidentiality to
his porential .sources, it seems obvious to me that a journalist's access to in-
formation, and thus the public's will thereby be impaired.*
A search warrant allows police officers to ransack the files of a newspaper,
reading each and every document until they have found the one named in the
warrant," while a subpoena would permit the newspaper itself to produce only the
1 1 apree witli the Court that thp Fourth Amendment does not forbid the issuance of
eeardi warrants ••simply because llie owner or possessor of the place to be searched is
not then reasonably suspected of criminal involvement." Ante, at 1979. Tims, contrary ta
the understanding expressed in the concurring opinion, I do not "read" anything ••into
the Fourth Amendment." Ante, at 19S3. Instead, I would simply enforce the provisions
of the First Amendment.
= One search of a radio station in Los Angeles lasted over eight hours. Note, Search
and Seizure of the jNIedia : A Statutorv. Fourth Amendment and First Amendment
Analysis, 2S Stan. L.Kev. 957. 957-959 (1976).
sSee Mills v. Alnlxima, 3S4 U.S. 214. 210. 86 S.Ct. 14.34. 1437, 16 L.Ed.2d 484; New
York Times Co. v. Sylliran. 376 U.S. 254. I><)9. 84 S.Ct. 710. 720. 11 L.Ed.2d 686; Grosjean
V. American Press Co., 297 T'.S. 233. 250, 56 S.Ct. 444, 449, 80 L.Bd. 600.
â– * Recognizing the imiiortance of this confidential relationship, at least 26 States have
enactel so-called '•shield laws" protecting reporters. Note. The Newsman's Frivilege After
Branzhurg: The Case for a Federal Shield Law, 24 U.C.L.A.L.Rev. 160. 167 n. 41 (1976).
5 In this case, the policemen executing the search warrant were concededly in a position
til read confidential material unrelated to the object of their search ; whether they in fact
did so is disi)nted.
*This prospect of losincr access to confidential sources ran.v cause reporters to engage
In "self-censorship." in order to avoid publicizing the fact that thev mnv have confidential
information. See Xcw Yorl: Times Co. v. f^ulliran, supra. 376 U.S., at 279, 84 S.Ct., at 725;
i<mith V. Cnlifornin. 361 U.S. 1-17, 154. 80 S. Ct. 215, 219, 4 L.Fd.2d 205. Or. .iournalists
jii;iy destroy notes and jihotographs rather than save them for reference and use in future
stories. Either of these indirect effects of police searches would further lessen the flow
of news to the public.
" Tlie Oiiurt says that "'f the requirements of specificity and reasonableness are prop-
erly applied, policed, and observed " there will be no opportunity for the police to "rummage
at large in newspaper fi'es." .\ute. at 1982. But in order to find a particular document,
no mntter how s;))eclfically it is identified in the warrant, the polic» will have to search
every jdace where it misrlit be — including, presumal)ly, every file in the office — and to
e\;iiniiie i>!i<'h document thev find to see If it is the correct one. I thus fall to see how
tin) Jr'uuriU Arueudincnt would provide an effective limit to these searches.
449
specific documents requested. A search, unlike a subpoena, will therefore lead to
the needless exposure of confidential information completely unrelated to the
jmrpose of the investigation. The l^nowledjie tliat i)oli(e oHicers can make an un-
announced raid on a newsroom is tlius bound to h;ive a det(>rreiit effect on the
availability of confidential news sources. The end result, wholly inimical to the
First Amendment, will be a diminishing flow of potentially important information
to the pulilie.
One need not rely on mere intuition to reach this conclusion. The record in this
case includes affidavits not only from members of the staff of The Stanford Daily
liur from many professional journalists and editors, attesting to precisely such
personal experience.* Despite the Court's rejection of this uncontrf)verted evi-
dence, I believe it clearly establishes that unannounced police searches of news-
paper oflBces will significantly burden the constitutionally protected function of
the press to gather news and report it to the public.
II
In Branzhvrg v. Hayes, supra, the more limited disclosure of a journalist's
sources caused by compelling him to testify was held to be justified by the
necessity of "pursuing and prosecuting those ciinies reported to tlie pre.ss by
Informants and in thus deterring the commission of such crimes in the future."
^08 U.S., at 69."). 92 S.Ct., at 1'6G4. The Court found that these important societal
interests would be frustrated if a I'eporter were able to claim an absolute
privilege for his confidential sources. In the present ca.'^e, however, the re.spond-
ents do not claim that any of the evidence sought was privileged from disclosure:
tbey claim only that a subpoena would have served equally well to pi-oduce that
evidence. Thus, we are not concerned with the pi-inciple. central to Broiizhurri,
that •' 'the public . . . has a right to every man's evidence,' "' id., at 688. 92 S.Ct.,
ar 2660. but only with whether any significant societal interest would be impaired
if the police wei-e generally required to obtain evidence from the press by means
â– of a subpoena rather than a search.
It is well to recall the actual circumstances of tliis case. The apjtlication for a