Burdeau v. McDowell, 256 U.S. 465 (1921)

Following an internal investigation into unlawful conduct, Henry L. Doherty & Co. fired its employee, J.C. McDowell. An agent of the company took control of the office that McDowell formerly occupied, searched the office, and took possession of documents locked inside two safes and one desk; after reviewing the documents, some of which were personal, the company forwarded them to Burdeau at the Justice Department. McDowell claimed a violation of his Fourth and Fifth Amendment rights on the grounds that the documents, illegally obtained by a private entity, would have otherwise been unavailable to Burdeau and thus self-incriminated the defendant.

Overturning a lower court’s decision by a seven-totwo vote (Brandeis and Holmes dissenting), the Supreme Court found no Fourth or Fifth Amendment violations. The majority opinion acknowledged that Doherty & Co.’s seizure of the documents was likely illegal, but because the search had been performed by a private party acting on its own behalf, the Fourth Amendment did not apply. The company was a private business, not working in association with the government. The Fifth Amendment question centered on whether the government may retain papers dubiously obtained by a private party for use as evidence against a criminal defendant. Writing for the majority, Justice Day reasoned that because the papers were held by a private party, the government could have legally subpoenaed the documents had they not been sent to the Justice Department. The Court held that the evidence, although stolen from McDowell by an agent of Doherty & Co., could be used in a criminal case against him.

Burdeau v. McDowell represents an articulation of the scope of the Fourth Amendment; the ruling remains standing law, allowing evidence stolen by a private party to be used against a criminal defendant.

JOHN GREGORY PALMER