The decision in
Katz v. United States, 389 U.
S. 347, which held that the reach of the Fourth
Amendment "cannot turn upon the presence or absence of a physical
intrusion into any given enclosure," and that every electronic
eavesdropping upon private conversations is a search and seizure
which, as a general rule, can comply with constitutional standards
only when authorized by a magistrate on a showing of probable cause
under precise limitations and safeguards, to the extent that it
departed from previous holdings of the Court, is to be applied
prospectively only. Pp.
394 U. S.
246-254.
384 F.2d 889, affirmed.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioners were convicted by a jury in the District Court
for the Southern District of New York of conspiring to import and
conceal heroin in violation of the federal narcotics laws.
[
Footnote 1] An important part
of the Government's
Page 394 U. S. 245
evidence consisted of tape recordings of conversations among
several of the petitioners in a New York City hotel room. The tapes
were made by federal officers in the adjoining room by means of an
electronic recording device which did not physically intrude into
the petitioners' room. [
Footnote
2] Because there was no "trespass" or "actual intrusion into a
constitutionally protected
Page 394 U. S. 246
area," the District Court and the Court of Appeals rejected the
petitioners' argument that this evidence was inadmissible because
the eavesdropping had violated their rights under the Fourth
Amendment. The convictions were affirmed, [
Footnote 3] and we granted certiorari to consider the
constitutional questions thus presented. [
Footnote 4]
Last Term in
Katz v. United States, 389 U.
S. 347, we held that the reach of the Fourth Amendment
"cannot turn upon the presence or absence of a physical intrusion
into any given enclosure."
Id. at
389 U. S. 353.
Noting that the "Fourth Amendment protects people, not places,"
id. at
389 U. S. 351,
we overruled cases holding that a search and seizure of speech
requires some trespass or actual penetration of a particular
enclosure. We concluded that, since every electronic eavesdropping
upon private conversations is a search or seizure, it can comply
with constitutional standards only when authorized by a neutral
magistrate upon a showing of probable cause and under precise
limitations and appropriate safeguards. The eavesdropping in this
case was not carried out pursuant to such a warrant, and the
convictions must therefore be reversed if
Katz is to be
applied to electronic surveillance conducted before the date of
that decision. We have concluded, however, that, to the extent
Katz departed from previous holdings of this Court, it
should be given wholly prospective application. Accordingly, and
because we find no merit in any of the petitioners' other
challenges to their convictions, we affirm the judgment before us.
[
Footnote 5]
Page 394 U. S. 247
We are met at the outset with the petitioners' contention that
Katz does not actually present a choice between
prospective or retroactive application of new constitutional
doctrine. The Court in that decision, it is said, did not depart
from any existing interpretation of the Constitution, but merely
confirmed the previous demise of obsolete decisions enunciating the
distinction between "trespassory" searches and those in which there
was no physical penetration of the protected premises.
Goldman
v. United States, 316 U. S. 129;
Olmstead v. United States, 277 U.
S. 438. [
Footnote 6]
But this contention misconstrues our opinion in
Katz. Our
holding there that
Goldman
Page 394 U. S. 248
and
Olmstead "can no longer be regarded as
controlling," 389 U.S. at
389 U. S. 353,
recognized that those decisions had not been overruled until that
day. [
Footnote 7] True, the
principles they expressed had been modified. The belief that an
oral conversation could not be the object of a "search" or
"seizure" had not survived. [
Footnote 8] And in
Silverman v. United States,
365 U. S. 505, we
had cautioned that the scope of the Fourth Amendment could not be
ascertained by resort to the "ancient niceties of tort or real
property law." 365 U.S. at
365 U. S. 511. But the assumption persisted that
electronic surveillance did not offend the Constitution unless
there was an "actual intrusion into a constitutionally protected
area." [
Footnote 9] While
decisions before
Katz may have reflected growing
dissatisfaction with the traditional tests of the constitutional
validity of electronic surveillance, [
Footnote 10] the Court consistently reiterated those
tests and declined invitations to abandon them. [
Footnote 11] However clearly our holding in
Katz may have been foreshadowed, it was a clear break with
the past, and we are thus compelled to decide whether its
application should be limited to the future.
Ever since
Linkletter v. Walker, 381 U.
S. 618,
381 U. S. 629,
established that "the Constitution neither prohibits nor requires
retrospective effect" for decisions expounding
Page 394 U. S. 249
new constitutional rules affecting criminal trials, the Court
has viewed the retroactivity or nonretroactivity of such decisions
as a function of three considerations. As we most recently
summarized them in
Stovall v. Denno, 388 U.
S. 293,
388 U. S.
297,
"The criteria guiding resolution of the question implicate (a)
the purpose to be served by the new standards, (b) the extent of
the reliance by law enforcement authorities on the old standards,
and (c) the effect on the administration of justice of a
retroactive application of the new standards. [
Footnote 12]"
Foremost among these factors is the purpose to be served by the
new constitutional rule. [
Footnote 13] This criterion strongly supports
prospectivity for a decision amplifying the evidentiary
exclusionary rule. Thus, it was principally the Court's assessment
of the purpose of
Mapp v. Ohio, 367 U.
S. 643, which led it in
Linkletter to deny
those finally convicted the benefit of
Mapp's extension of
the exclusionary rule to the States:
"all of the cases . . . requiring the exclusion of illegal
evidence have been based on the necessity for an effective
deterrent to illegal police action. . . . We cannot say that this
purpose would be advanced by making the rule retrospective. The
misconduct of the police . . . has already occurred and will not be
corrected by releasing the prisoners involved."
381 U.S. at
381 U. S.
636-637. [
Footnote
14]
Page 394 U. S. 250
We further observed that, in contrast with decisions which had
been accorded retroactive effect, [
Footnote 15] "there is no likelihood of unreliability or
coercion present in a search and seizure case"; the exclusionary
rule is but a "procedural weapon that has no bearing on guilt," and
"the fairness of the trial is not under attack." 381 U.S. at
381 U. S. 638,
381 U. S. 639.
Following this reasoning of
Linkletter, we recently held
in
Fuller v. Alaska, 393 U. S. 80, that
the exclusionary rule of
Lee v. Florida, 392 U.
S. 378, should be accorded only prospective application.
Analogizing
Lee to
Mapp, we concluded that
evidence seized in violation of § 605 of the Federal Communications
Act [
Footnote 16] was "no
less relevant and reliable than that seized in violation of the
Fourth Amendment," and that both decisions were merely "designed to
enforce the federal law." 393 U.S. at
393 U. S.
81.
The second and third factors -- reliance of law enforcement
officials and the burden on the administration of justice that
would flow from a retroactive application -- also militate in favor
of applying
Katz prospectively.
Katz for the
first time explicitly overruled the "physical penetration" and
"trespass" tests enunciated in earlier decisions of this Court. Our
periodic restatements of those tests confirmed the interpretation
that police and courts alike had placed on the controlling
precedents and
Page 394 U. S. 251
fully justified reliance on their continuing validity. Nor had
other courts theretofore held that the prohibitions of the Fourth
Amendment encompassed "nontrespassory" electronic surveillance. On
the contrary, only a few months before the eavesdropping in this
case, the Court of Appeals for the Second Circuit had upheld the
introduction of electronic evidence obtained by the same narcotics
agent with a virtually identical installation.
United States v.
Pardo-Bolland, 348 F.2d 316,
cert. denied, 382 U.S.
944.
Although there apparently have not been many federal convictions
based on evidence gathered by warrantless electronic surveillance,
[
Footnote 17] we have no
cause to doubt that the number of state convictions obtained in
reliance on pre-
Katz decisions is substantial. [
Footnote 18] Moreover, the
determination of whether a particular instance of eavesdropping led
to the introduction of tainted evidence at trial would in most
cases be a difficult and time-consuming task, which, particularly
when attempted long after the event, would impose a weighty burden
on any court.
Cf. Alderman v. United States, ante at
394 U. S.
180-185. It is to be noted also that we have relied
heavily on the factors of the extent of reliance and consequent
burden on the administration of justice only when the purpose of
the rule in question did not clearly favor either retroactivity or
prospectivity. [
Footnote 19]
Because the deterrent purpose of
Katz overwhelmingly
supports nonretroactivity, we
Page 394 U. S. 252
would reach that result even if relatively few convictions would
be set aside by its retroactive application.
The petitioners argue that, even if
Katz is not given
fully retrospective effect, at least it should govern those cases
which, like the petitioners', were pending on direct review when
Katz was decided. Petitioners point out that, in
Linkletter, the only other case involving the
retroactivity of a Fourth Amendment decision, the Court held
Mapp applicable to every case still pending on direct
review on the date of that decision. A similar approach was adopted
in
Tehan v. Shott, 382 U. S. 406,
with respect to the prospectivity of
Griffin v.
California, 380 U. S. 609. In
Johnson v. New Jersey, 384 U. S. 719,
however, we abandoned the approach taken in
Linkletter and
Tehan and concluded that "there are no jurisprudential or
constitutional obstacles" to the adoption of a different cut-off
point.
Id. at
384 U. S. 733.
We explained that
"[o]ur holdings in
Linkletter and
Tehan were
necessarily limited to convictions which had become final by the
time
Mapp and
Griffin were rendered. Decisions
prior to
Linkletter and
Tehan had already
established without discussion that
Mapp and
Griffin applied to cases still on direct appeal at the
time they were announced."
Id. at
384 U. S. 732.
[
Footnote 20]
Page 394 U. S. 253
Here, on the other hand, as in
Johnson, "the
possibility of applying [
Katz] only prospectively is yet
an open issue."
Ibid.
All of the reasons for making
Katz retroactive also
undercut any distinction between final convictions and those still
pending on review. Both the deterrent purpose of the exclusionary
rule and the reliance of law enforcement officers focus upon the
time of the search, not any subsequent point in the prosecution, as
the relevant date. Exclusion of electronic eavesdropping evidence
seized before
Katz would increase the burden on the
administration of justice, would overturn convictions based on fair
reliance upon pre-
Katz decisions, and would not serve to
deter similar searches and seizures in the future.
Nor can it sensibly be maintained that the Court is foreclosed
by
Linkletter in this case, as it was not in
Johnson, simply because
Katz, like
Mapp,
was a Fourth Amendment decision. [
Footnote 21] In neither
Linkletter nor
Johnson was it intimated that the cut-off points there
adopted depended in any degree on the constitutional provision
involved. There is, moreover, a significant distinction between the
Mapp and
Katz decisions.
Mapp dealt
solely with the applicability of the exclusionary rule to the
States;
"the situation before
Mapp . . . [was that] the States
at least knew that they were constitutionally forbidden from
engaging in unreasonable searches and seizures under
Wolf v.
Colorado, 338 U. S. 25 (1949). [
Footnote 22]"
Before
Katz, on the other hand, "nontrespassory"
electronic surveillance was not thought to fall within the
Page 394 U. S. 254
reach of the Fourth Amendment. [
Footnote 23] Therefore, this case lacks whatever impetus
the knowingly unconstitutional conduct by the States may have
provided in
Linkletter to apply
Mapp to all
pending prosecutions.
In sum, we hold that
Katz is to be applied only to
cases in which the prosecution seeks to introduce the fruits of
electronic surveillance conducted after December 18, 1967.
[
Footnote 24] Since the
eavesdropping in this case occurred before that date and was
consistent with pre-
Katz decisions of this Court, the
convictions must be
Affirmed.
MR. JUSTICE BLACK, while adhering to his dissent in
Linkletter v. Walker, 381 U. S. 618,
381 U. S. 640
(1965), concurs in the affirmance of the judgment of convictions in
this case for the reasons stated in his dissenting opinion in
Katz v. United States, 389 U. S. 347,
389 U. S. 364
(1967).
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
Page 394 U. S. 255
MR. JUSTICE DOUGLAS, dissenting.
It is a mystery to me why
Katz v. United States,
389 U. S. 347,
which was given retroactive effect to petitioner
Katz will
not be given retroactive effect to petitioner Desist and his
copetitioners. That does not seem to me to be the administration of
justice with an even hand. I would understand today's ruling if, in
Katz, we had announced a new constitutional search and
seizure rule to be applied prospectively in all cases. But we did
not do that; nor did we do it in other recent cases announcing
variations of old constitutional doctrine. The most notorious
example is
Miranda v. Arizona, 384 U.
S. 436, where, as I recall, some 80 cases were presented
raising the same question. We took four of them and held the rest
and then disposed of each of the four, applying the new procedural
rule retroactively. But as respects the rest of the pending cases
we denied any relief.
Johnson v. New Jersey, 384 U.
S. 719. Yet it was sheer coincidence that those precise
four were chosen. Any other single case in the group or any other
four would have been sufficient for our purposes.
All this, and more, was stated by MR. JUSTICE BLACK in his
dissent in
Linkletter v. Walker, 381 U.
S. 618,
381 U. S. 640,
in which I concurred. It is stated again with clarity and vigor by
MR. JUSTICE HARLAN in today's dissent, Part I of which I join. It
still remains a mystery how some convicted people are given new
trials for unconstitutional convictions and others are kept in jail
without any hope of relief though their complaints are equally
Page 394 U. S. 256
meritorious. At least the Court should not say as respects
Katz that it is given "wholly prospective application,"
when it was made retroactive in his case.
The pretense that we were bound in
Katz to apply the
new rule retroactively to that defendant or not decide the case at
all, is too transparent to need answer.
See 1B J. Moore,
Federal Practice 191 (2d ed.1965); 1 K. Davis, Administrative Law
Treatise § 5.09 (1958); Levy, Realist Jurisprudence and Prospective
Overruling, 109 U.Pa.L.Rev. 1, 15; Currier, Time and Change in
Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201,216-234
(1965).
In
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 733,
where we announced that the rule in
Miranda should apply
only to cases commenced after that decision had been announced, we
said:
"there are no jurisprudential or constitutional obstacles to the
rule we are adopting here. . . . In appropriate prior cases we have
already applied new judicial standards in a wholly prospective
manner.
See England v. Louisiana State Board of Medical
Examiners, 375 U. S. 411 (1964);
James
v. United States, 366 U. S. 213 (1961)."
Where the spirit is strong, there has heretofore been no
impediment to producing only dictum through a "case or
controversy." Indeed, that tradition started with
Marbury v.
Madison, 1 Cranch 137.
[
Footnote 1]
35 Stat. 614, as amended, 21 U.S.C. § 173 provides in pertinent
part:
"It is unlawful to import or bring any narcotic drug into the
United States or any territory under its control or jurisdiction. .
. ."
21 U.S.C. § 174 provides in pertinent part:
"Whoever fraudulently or knowingly imports or brings any
narcotic drug into the United States or any territory under its
control or jurisdiction, contrary to law, or receives, conceals,
buys, sells, or in any manner facilitates the transportation,
concealment, or sale of any such narcotic drug after being imported
or brought in, knowing the same to have been imported or brought
into the United States contrary to law, or conspires to commit any
of such acts in violation of the laws of the United States, shall
be imprisoned not less than five or more than twenty years and, in
addition, may be fined not more than $20,000."
[
Footnote 2]
The room occupied by the petitioners was separated from that of
the agents by two doors with a small air space between them.
According to the testimony of the federal agents -- which was
properly credited by both courts below after an exhaustive hearing
that included an actual reconstruction of the equipment in the
hotel room -- the microphone was taped to the door on their side.
The face of the microphone was turned toward the 3/8-inch space
between the door and the sill, and a towel was placed over the
microphone and along the bottom of the door in order to minimize
interference from sounds in the agents' room. A cable was run from
the microphone to an amplifier and tape recorder in the bathroom
adjoining the agents' room.
Petitioners contend that this installation was equivalent to a
physical penetration of the petitioners' room because the airspace
between the doors acted as a sound chamber, thereby facilitating
the pickup of the conversations next door. We are unable, however,
to distinguish this eavesdropping from that condoned in
Goldman
v. United States, 316 U. S. 129,
where the agents simply placed a sensitive receiver against the
partition wall. Petitioners' reliance on
Silverman v. United
States, 365 U. S. 505, is
misplaced. The heating duet system used as a sound conductor by the
agents in that case was "an integral part of the premises occupied
by the petitioners," 365 U.S. at
365 U. S. 511,
and the agents had to penetrate the petitioners' house with a
"spike microphone" before the heating duet could be thus
employed.
[
Footnote 3]
384 F.2d 889.
[
Footnote 4]
390 U.S. 943.
[
Footnote 5]
The only other issues which warrant mention relate to the
Government's disclosure to the Court of Appeals of the instances of
admittedly trespassory electronic surveillance affecting the
petitioners. The Court of Appeals remanded the case to the District
Court for a full evidentiary hearing on the subject matter of the
disclosures. The first monitoring episode occurred during
1962-1963, when a device was installed in a Florida restaurant. The
surveillance was directed at the owner of the restaurant, rather
than at any of the petitioners, but petitioner Dioguardi was
overheard talking about the operations of the restaurant. The log
sheets covering the entire period of surveillance were turned over
to the District Judge for
in camera inspection, and those
relating to any conversations of Dioguardi were furnished to the
defense. The second instance was an attempted bugging of a rented
car used by petitioners Nebbia, Desist, and LeFranc in furtherance
of the conspiracy. Again all records pertaining to this episode
were turned over to the defense.
District Judge Palmieri, after holding an extensive hearing at
which the petitioners were granted unrestrained opportunity to
introduce evidence and cross-examine witnesses, concluded that none
of the "evidence used against [the petitioners] at the trial was
tainted by any invasion of their constitutional rights." 277 F.
Supp. 690, 700. Judge Palmieri found that the Dioguardi
conversations overheard in 1962-1963 were totally unrelated to the
events of the conspiracy, which transpired over two years later.
With regard to the second instance, he found that the device
ininstalled in the rented car "did not function and that nothing
coherent was obtained."
Id. at 692. The Court of Appeals
held that these findings were supported by the evidence and that
the petitioners were accorded all the procedural rights to which
they were entitled. We agree.
See Alderman v. United States,
ante, p.
394 U. S. 165.
[
Footnote 6]
See also On Lee v. United States, 343 U.
S. 747.
[
Footnote 7]
See also 389 U.S. at
389 U. S. 362
(HARLAN, J., concurring); 389 U.S. at
389 U. S. 367,
389 U. S. 372
(BLACK, J., dissenting).
[
Footnote 8]
See, e.g., Wong Sun v. United States, 371 U.
S. 471,
371 U. S. 485;
Lanza v. New York, 370 U. S. 139,
370 U. S. 142;
Silverman v. United States, 365 U.
S. 505;
Irvine v. California, 347 U.
S. 128.
[
Footnote 9]
Silverman v. United States, supra, at
365 U. S.
512.
[
Footnote 10]
In
Katz, 389 U.S. at
389 U. S. 353,
for example, we referred to our previous observation in
Warden
v. Hayden, 387 U. S. 294,
387 U. S. 304,
that "[t]he premise that property interests control the right of
the Government to search and seize has been discredited."
[
Footnote 11]
See Berger v. New York, 388 U. S.
41,
388 U. S. 44,
388 U. S. 50-53,
388 U. S. 64;
Clinton v. Virginia, 377 U. S. 158;
Lopez v. United States, 373 U. S. 427,
373 U. S.
437-439;
Silverman v. United States, supra, at
365 U. S.
510-512.
[
Footnote 12]
See also DeStefano v. Woods, 392 U.
S. 631;
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 727;
Tehan v. Shott, 382 U. S. 406,
382 U. S. 413;
Linkletter v. Walker, 381 U. S. 618,
381 U. S.
629.
[
Footnote 13]
See Roberts v. Russell, 392 U.
S. 293,
392 U. S. 295;
Witherspoon v. Illinois, 391 U. S. 510,
391 U. S. 523,
n. 22.
[
Footnote 14]
In other areas where retroactivity has been denied the "purpose"
criterion offered much weaker support.
Cf. Stovall v.
Denno, 388 U. S. 293,
388 U. S. 298,
where it was conceded that
"the
Wade and
Gilbert rules also are aimed at
avoiding unfairness at the trial by enhancing the reliability of
the factfinding process in the area of identification
evidence;"
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 730,
where it was recognized that "
Escobedo and
Miranda guard against the possibility of unreliable
statements in every instance of in-custody interrogation", and
Tehan v. Shott, 382 U. S. 406,
382 U. S. 414,
where it was stated that
"the 'purpose' of the
Griffin rule is to be found in
the whole complex of values that the privilege against
self-incrimination itself represents,"
including "our realization that the privilege, while sometimes
a shelter to the guilty,' is often `a protection to the
innocent.'" Id. at 382 U. S.
414-415, n. 12.
[
Footnote 15]
Jackson v. Denno, 378 U. S. 368;
Gideon v. Wainwright, 372 U. S. 335;
Griffin v. Illinois, 351 U. S. 12.
[
Footnote 16]
48 Stat. 1103, 47 U.S.C. § 605.
[
Footnote 17]
The Government has informed us in its brief that,
"[i]nstead of a wholesale release of thousands of convicted
felons, only a relatively small number would probably be affected
[by a retroactive application of
Katz], since electronic
surveillance has played a part in a limited number of federal
cases."
[
Footnote 18]
We noted in
Berger v. New York, 388 U. S.
41,
388 U. S. 48-49,
that only a handful of States have prohibited or regulated
electronic surveillance by law enforcement officials.
[
Footnote 19]
See DeStefano v. Woods, 392 U.
S. 631;
Stovall v. Denno, 388 U.
S. 293;
Johnson v. New Jersey, 384 U.
S. 719.
Cf. cases cited in
n 13,
supra.
[
Footnote 20]
In
Linkletter itself, the Court noted that it dealt
only with the narrow issue whether
Mapp should be applied
to final, as well as nonfinal, convictions:
"[
Mapp] has also been applied to cases still pending on
direct review at the time it was rendered. Therefore, in this case,
we are concerned only with whether the exclusionary principle
enunciated in
Mapp applies to state court convictions
which had become final before rendition of our opinion."
381 U.S. at
381 U. S. 622.
Mapp had already been applied in
Ker v.
California, 374 U. S. 23;
Fahy v. Connecticut, 375 U. S. 85;
Stoner v. California, 376 U. S. 483.
Griffin had been applied in
O'Connor v. Ohio,
382 U. S. 286,
shortly before
Tehan was decided.
[
Footnote 21]
Actually,
Mapp was, of course, decided under the Fourth
and Fourteenth Amendments, with one member of the five-man majority
relying at least in part on the Fifth Amendment. 367 U.S. at
367 U. S.
661-666 (BLACK, J., concurring).
[
Footnote 22]
Johnson v. New Jersey, 384 U.
S. 719,
384 U. S. 731.
And see Tehan v. Shott, 382 U. S. 406,
382 U. S.
417.
[
Footnote 23]
Indeed, since the Fourth Amendment prohibits only unreasonable
searches and seizures, it could be argued that there was, in fact,
no Fourth Amendment violation in the present case. The law
enforcement officers could certainly be said to have been acting
"reasonably" in measuring their conduct by the relevant Fourth
Amendment decisions of this Court.
Cf. Katz v. United
States, 389 U. S. 347,
389 U. S. 356;
James v. United States, 366 U. S. 213,
366 U.S. 221-222,
366 U. S.
245.
[
Footnote 24]
The dissenting opinion of MR. JUSTICE FORTAS suggests that our
holding today denies "the benefit of a fundamental constitutional
provision, and not merely of court-made rules implementing a
constitutional mandate."
Post at
394 U. S. 271.
To the contrary, we simply decline to extend the court-made
exclusionary rule to cases in which its deterrent purpose would not
be served. The exclusionary rule "has no bearing on guilt" or "the
fairness of the trial."
Linkletter v. Walker, 381 U.S. at
381 U. S. 638,
381 U. S.
639.
Of course,
Katz himself benefited from the new
principle announced on that date, and, as our Brother DOUGLAS
observes, to that extent the decision has not technically been
given wholly prospective application. But, as we recently explained
in
Stovall v. Denno, 388 U. S. 293,
388 U. S. 301,
the fact that the parties involved in the decision are the only
litigants so situated who receive the benefit of the new rule is
"an unavoidable consequence of the necessity that constitutional
adjudications not stand as mere dictum." Whatever inequity may
arguably result from applying the new rule to those "chance
beneficiaries" is "an insignificant cost for adherence to sound
principles of decisionmaking."
Ibid.
MR. JUSTICE HARLAN, dissenting.
In the four short years since we embraced the notion that our
constitutional decisions in criminal cases need not be
retroactively applied,
Linkletter v. Walker, 381 U.
S. 618 (1965), [
Footnote
2/1] we have created an extraordinary collection
Page 394 U. S. 257
of rules to govern the application of that principle. We have
held that certain "new" rules are to be applied to all cases then
subject to direct review,
Linkletter v. Walker, supra; Tehan v.
Shott, 382 U. S. 406
(1966); certain others are to be applied to all those cases in
which trials have not yet commenced,
Johnson v. New
Jersey, 384 U. S. 719
(1966); certain others are to be applied to all those cases in
which the tainted evidence has not yet been introduced at trial,
Fuller v. Alaska, 393 U. S. 80
(1968), and still others are to be applied only to the party
involved in the case in which the new rule is announced and to all
future cases in which the proscribed official conduct has not yet
occurred.
Stovall v. Denno, 388 U.
S. 293 (1967);
DeStefano v. Woods, 392 U.
S. 631 (1968).
Although it has more than once been said that "new" rules
affecting "the very integrity of the factfinding process," are to
be retroactively applied,
Linkletter v. Walker, supra, at
381 U. S. 639;
see also Tehan v. Shott, supra, at
382 U. S. 416;
Fuller v. Alaska, supra, at
393 U. S. 81,
this requirement was eroded to some extent in
Johnson v. New
Jersey, supra, at
384 U. S.
728-729, and yet further in
Stovall v. Denno,
supra, at
388 U. S. 299;
see also DeStefano v. Woods, supra. Again, although it has
been said that a decision will be retroactively applied when it has
been "clearly foreshadowed" in our prior case law,
Johnson v.
New Jersey, supra. at
384 U. S. 731;
Berger v. California,
393 U. S. 314
(1969), the Court today rejects such a contention.
Ante at
394 U. S. 248.
Indeed, the Court now also departs from preexisting doctrine in
refusing retroactive application within the federal system of the
"new" rule ultimately laid down in
Katz v. United States,
389 U. S. 347
(1967), despite its concession that "relatively few" federal cases
would have to be reconsidered.
Compare ante at
394 U. S.
251-252,
with Linkletter v. Walker, supra, at
381 U. S. 637;
Tehan v. Shott, supra, at
382 U. S.
418-419;
Johnson v. New Jersey, supra, at
384 U. S.
731-732;
Stovall v. Denno, supra, at
388 U. S.
300.
Page 394 U. S. 258
I have in the past joined in some of those opinions which have,
in so short a time, generated so many incompatible rules and
inconsistent principles. I did so because I thought it important to
limit the impact of constitutional decisions which seemed to me
profoundly unsound in principle. I can no longer, however, remain
content with the doctrinal confusion that has characterized our
efforts to apply the basic
Linkletter principle.
"Retroactivity" must be rethought.
I
RETROACTIVITY ON DIRECT REVIEW.
Upon reflection, I can no longer accept the rule first announced
two years ago in
Stovall v. Denno, supra, and reaffirmed
today, which permits this Court to apply a "new" constitutional
rule entirely prospectively, while making an exception only for the
particular litigant whose case was chosen as the vehicle for
establishing that rule. Indeed, I have concluded that
Linkletter was right in insisting that all "new" rules of
constitutional law must, at a minimum, be applied to all those
cases which are still subject to direct review by this Court at the
time the "new" decision is handed down.
Matters of basic principle are at stake. In the classical view
of constitutional adjudication, which I share, criminal defendants
cannot come before this Court simply to request largesse. This
Court is entitled to decide constitutional issues only when the
facts of a particular case require their resolution for a just
adjudication on the merits.
See Marbury v.
Madison, 1 Cranch 137 (1803). We do not release a
criminal from jail because we like to do so, or because we think it
wise to do so, but only because the government has offended
constitutional principle in the conduct of his case. And when
another similarly situated defendant comes before us, we must grant
the same relief or give a principled reason for acting differently.
We depart from this basic judicial
Page 394 U. S. 259
tradition when we simply pick and choose from among similarly
situated defendants those who alone will receive the benefit of a
"new" rule of constitutional law.
The unsound character of the rule reaffirmed today is perhaps
best exposed by considering the following hypothetical. Imagine
that the Second Circuit in the present case had anticipated the
line of reasoning this Court subsequently pursued in
Katz v.
United States, supra, at
389 U. S.
352-353, concluding -- as this Court there did --
that
"the underpinnings of
Olmstead and
Goldman
have been so eroded by our subsequent decisions that the 'trespass'
doctrine there enunciated can no longer be regarded as
controlling."
Id. at
389 U. S. 353.
Would we have reversed the case on the ground that the principles
the Second Circuit had announced -- though identical with those in
Katz -- should not control because
Katz is not
retroactive? To the contrary, I venture to say that we would have
taken satisfaction that the lower court had reached the same
conclusion we subsequently did in
Katz. If a "new"
constitutional doctrine is truly right, we should not reverse lower
courts which have accepted it; nor should we affirm those which
have rejected the very arguments we have embraced. Anything else
would belie the truism that it is the task of this Court, like that
of any other, to do justice to each litigant on the merits of his
own case. It is only if our decisions can be justified in terms of
this fundamental premise that they may properly be considered the
legitimate products of a court of law, rather than the commands of
a super-legislature.
Re-examination of prior developments in the field of
retroactivity leads me irresistibly to the conclusion that the only
solid disposition of this case lies in vacating the judgment of the
Court of Appeals and in remanding this case to that court for
further consideration in light of
Katz.
Page 394 U. S. 260
II
What has already been said is, from my standpoint, enough to
dispose of the case before us. Ordinarily I would not go further.
But, in this instance, I consider it desirable and appropriate to
venture some observations on the application of the retroactivity
doctrine in habeas corpus cases, under the prevailing scope of the
"Great Writ" as set forth in this Court's 1963 decision in
Fay
v. Noia, 372 U. S. 391, and
in today's decision in
Kaufman v. United States, ante, p.
394 U. S. 217. I
believe this course is fitting because none of the Court's prior
retroactivity decisions has faced up to the quite different factors
which should govern the application of retroactivity in habeas
corpus cases; because the retroactive application of
Katz
in habeas corpus cases would seem to be foreclosed by the present
decision; because principled habeas retroactivity now seems to me
to demand much more than the "purpose," "reliance," and judicial
"administration" standards,
ante at
394 U. S. 249,
which have so far been regarded as the tests governing
retroactivity in direct review and habeas corpus cases alike, and
because the retroactivity doctrine is still in a developing stage.
In what ensues, I shall simply try to suggest some of the
considerations which appear to me to lay bare the complexities of
the retroactivity problem on habeas which I feel have not been
sufficiently explored in past decisions, leaving expression of
definitive views upon any of such considerations for future habeas
cases to which they are germane.
A
While, as I have argued, a reviewing court has the obligation to
rule upon every decisive issue properly raised by the parties on
direct review, the federal courts have never had a similar
obligation on habeas corpus.
Page 394 U. S. 261
Indeed, until
Brown v. Allen, 344 U.
S. 443 (1953), federal courts would never consider the
merits of a constitutional claim if the habeas petitioner had a
fair opportunity to raise his arguments in the original proceeding.
[
Footnote 2/2]
See my
dissent in
Fay v. Noia, supra, at
372 U. S.
449-463;
see also Bator, Finality in Criminal
Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev.
441, 43 (1963). With habeas restricted in this way, the question of
applying a "new" constitutional rule to convictions which had
become final arose so infrequently that the retroactivity issue
could not be considered a significant one in those days. Even under
Brown, the retroactive application of "new" rules in
habeas cases did not serve to erode the finality of criminal
judgments to any substantial degree. It was the rare case in which
the habeas petitioner had raised a "new" constitutional argument
both at his original trial and on appeal. Yet it was only in such a
case that
Brown would permit a habeas court to apply the
"new" rule.
Cf. Sunal v. Large, 332 U.
S. 174 (1947).
The conflict between retroactivity and finality only became of
major importance with the Court's decision in
Fay v. Noia,
supra. For the first time, it was there held that, at least in
some instances, a habeas petitioner could successfully attack his
conviction collaterally despite the fact that the "new" rule had
not even been suggested in the original proceedings. Thus,
Noia opened the door for large numbers of prisoners to
relitigate their convictions each time a "new" constitutional rule
was announced by this Court.
Page 394 U. S. 262
I continue to believe that
Noia, which has been given
even broader scope in
Kaufman v. United States, supra,
constitutes an indefensible departure both from the historical
principles which defined the scope of the "Great Writ" and from the
principles of federalism which have formed the bedrock of our
constitutional development. Nevertheless, my views on this score
have not prevailed, and, pending reexamination of the scope of
habeas corpus, I believe myself obliged to consider on its own
bottom the retroactivity problem which
Noia has spawned,
since it is a matter of the greatest importance if the integrity of
the federal judicial process is to be maintained in this era of
increasingly rapid constitutional change.
B
The greatly expanded writ of habeas corpus seems at the present
time to serve two principal functions.
See Kaufman v. United
States, supra, at
394 U. S. 229;
Mishkin, The Supreme Court, 1964 Term -- Foreword: The High Court,
The Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev.
56, 77-101 (1965). First, it seeks to assure that no man has been
incarcerated under a procedure which creates an impermissibly large
risk that the innocent will be convicted. It follows from this that
all "new" constitutional rules which significantly improve the
preexisting factfinding procedures are to be retroactively applied
on habeas.
See my Brother BLACK's dissent in
Kaufman
v. United States, supra, at
394 U. S.
235-236. The new habeas, however, is not only concerned
with those rules which substantially affect the factfinding
apparatus of the original trial. Under the prevailing notions,
Kaufman v. United States, supra, at
394 U. S.
224-226, the threat of habeas serves as a necessary
additional incentive for trial and appellate courts throughout the
land to conduct their proceedings
Page 394 U. S. 263
in a manner consistent with established constitutional
standards. In order to perform this deterrence function, the habeas
court need not, as prior cases make clear, necessarily apply all
"new" constitutional rules retroactively. In these cases, the
habeas court need only apply the constitutional standards that
prevailed at the time the original proceedings took place.
The theory that the habeas petitioner is entitled to the law
prevailing at the time of his conviction is, however, one which is
more complex than the Court has seemingly recognized. First, it is
necessary to determine whether a particular decision has really
announced a "new" rule at all, or whether it has simply applied a
well established constitutional principle to govern a case which is
closely analogous to those which have been previously considered in
the prior case law. Only a short time ago, for example, we
attempted to define with more precision the conditions governing
the issuance of a search warrant under the Fourth Amendment.
Spinelli v. United States, 393 U.
S. 410 (1969). While we had never previously encountered
the precise situation raised in
Spinelli, our decision in
that case rested upon the established doctrine that a magistrate
may issue a warrant only when he can judge for himself the validity
of the affiant's conclusion that criminal activity is involved.
Johnson v. United States, 333 U. S.
10,
333 U. S. 14
(1948);
Aguilar v. Texas, 378 U.
S. 108 (1964). Surely, it could not be thought that
Spinelli should not be retroactively applied under the
expanded habeas process because it was not announced until 1969.
One need not be a rigid partisan of Blackstone to recognize that
many, though not all, of this Court's constitutional decisions are
grounded upon fundamental principles whose content does not change
dramatically from year to year, but whose meanings are altered
slowly and subtly as generation succeeds generation. In such a
context, it appears
Page 394 U. S. 264
very difficult to argue against the application of the "new"
rule in all habeas cases since one could never say with any
assurance that this Court would have ruled differently at the time
the petitioner's conviction became final.
In the
Katz case, however, one can say with assurance
that there was a time at which this Court would have ruled
differently. For in
Olmstead, Goldman, and
On
Lee, [
Footnote 2/3] the Court
did just that. Even under the prevailing view of habeas, this fact
should be of significance. Although the threat of collateral attack
may be necessary to assure that the lower federal and state courts
toe the constitutional line, the lower courts cannot be faulted
when, following the doctrine of
stare decisis, they apply
the rules which have been authoritatively announced by this Court.
If anyone is responsible for changing these rules, it is this
Court.
Even in this situation, however, the doctrine of
stare
decisis cannot always be a complete answer to the
retroactivity problem if a habeas petitioner is really entitled to
the constitutional law which prevailed at the time of his
conviction. Consider, for example, the state of Fourth Amendment
law as it existed after our decision in
Silverman v. United
States, 365 U. S. 505
(1961). As my Brother STEWART notes today,
ante at
394 U. S. 248,
Silverman went a long way toward rejecting the principles
supporting the
Goldman and
Olmstead rules. The
Court in
Silverman cautioned that the scope of the Fourth
Amendment's protection is "not inevitably measurable in terms of
ancient niceties of tort or real property law." 365 U.S. at
365 U. S. 511.
The majority's opinion concluded with the warning: "We find no
occasion to reexamine
Goldman here, but we decline to go
beyond it, by even a fraction of
Page 394 U. S. 265
an inch."
Id. at
365 U. S. 512.
It is hard to believe that any lawyer worthy of the name could,
after reading
Silverman, rely with confidence on the
continuing vitality of the
Goldman rule. Nor is it by any
means clear to me that it would have been improper for a lower
court to have declined to follow
Goldman in the light of
Silverman. [
Footnote 2/4]
Given the deterrence purpose of the expanded habeas corpus, it thus
could be persuasively argued that the
Katz rule should be
applied to all cases which had not become final at the time
Silverman was decided. [
Footnote 2/5]
Page 394 U. S. 266
C
Katz, of course, has been one of the lesser innovations
of a decade that has witnessed revolutionary changes in the most
fundamental premises of hitherto accepted constitutional law. And
similar difficulties arise as to the retroactive application of the
Court's other landmark decisions if one is to insist that a habeas
petitioner is entitled to the law as it stood at the time of his
conviction. It is possible to argue, for example, that the Court's
decision in
Mapp v. Ohio, 367 U.
S. 643 (1961), imposing the exclusionary rule on the
States, was a sufficient indication to the lower courts that they
should no longer rely on the doctrine of
stare decisis
when confronted with the claim that other Bill of Rights guarantees
should be incorporated into the Due Process Clause of the
Fourteenth Amendment. It would follow from this position that all
subsequent decisions incorporating various other provisions of the
Bill of Rights into Due Process should be applied to all cases
arising on habeas which were pending on appeal at the time
Mapp was decided.
On the other hand, one could argue that
stare decisis
was still the appropriate rule for the lower courts until this
Court made it clear that a particular guarantee was applicable to
the States. It would follow from this position that the Court's
decision in
Griffin v.
California,
Page 394 U. S. 267
380 U. S. 609
(1965), should be retroactively applied only to
Malloy v.
Hogan, 378 U. S. 1 (1964),
which was the first case beginning the process of incorporating the
Fifth Amendment's privilege against self-incrimination, and that
Duncan v. Louisiana, 391 U. S. 145
(1968), should not be applied to any of those cases which had
become final before that decision required the States to provide
criminal jury trials on the same basis as the Federal
Government.
Neither of these positions would be squarely inconsistent with
the Court's new view of habeas corpus. Indeed, if the Court in
Mapp had given any indication whatever that it accepted my
Brother BLACK's "incorporationist" philosophy in its pristine
purity,
see Adamson v. California, 332 U. S.
46,
332 U. S. 68-123
(1947), it would appear that it would have been improper for the
lower courts to rely on the old precedents to respond to the new
claims advanced by criminal defendants. However, the Court has
never accepted MR. JUSTICE BLACK's constitutional premises in
full-blown form. Instead, it has embarked on a course of "selective
incorporation" in which the nature of each particular Bill of
Rights guarantee has been examined before it was imposed upon the
States. Given the
ad hoc character of this approach, and
given the fundamental place of federalism in the traditional
conception of constitutional adjudication, it could certainly be
strongly argued that the lower courts could properly follow the
traditional due process approach until the time this Court made it
clear that a particular Bill of Rights guarantee had been
incorporated.
The relationship for retroactivity purposes among the
Escobedo, Miranda, Wade, and
Gilbert decisions
[
Footnote 2/6] presents another
difficult problem under the new habeas
Page 394 U. S. 268
corpus concept. It can be argued that the "line-up" cases,
Wade and
Gilbert, should be retroactively applied
to all those cases pending when
Miranda was decided. Since
Miranda placed affirmative requirements upon police
officers to assure that the accused would have an opportunity to
obtain counsel at one "critical stage" of the criminal process,
neither police officials nor the lower courts, it might be argued,
could properly assume that other critical stages would not be
comparably treated. Similarly, it may be suggested that the rules
announced in both
Miranda and the "line-up" cases should
be applied to all cases still pending on appeal when
Escobedo
v. Illinois announced that the Sixth Amendment applied in the
police station. For
Gideon v. Wainwright, 372 U.
S. 335 (1963), had already established the proposition
that the State must provide free counsel to indigents at the
criminal trial.
It is doubtless true that a habeas court encounters difficult
and complex problems if it is required to chart out the proper
implications of the governing precedents at the time of a
petitioner's conviction. One may well argue that it is of paramount
importance to make the "choice of law" problem on habeas as simple
as possible, applying each "new" rule only to those cases pending
at the time it is announced. While this would obviously be simpler,
simplicity would be purchased at the cost of compromising the
principle that a habeas petitioner is to have his case judged by
the constitutional standards dominant at the time of his
conviction.
I do not pretend to have exhausted in the foregoing discussion
all the complexities of the retroactivity problem on habeas. But
the considerations I have canvassed suggest that we should take a
hard look at where we are going in the retroactivity field so that
this new doctrine may be administered in accordance with the basics
of the
Page 394 U. S. 269
judicial tradition. Unfortunately, the Court does not even
attempt this task.
For the reasons stated in Part I of this opinion, I cannot
subscribe to the affirmance of the judgment of the Court of
Appeals. I would remand the case to that court for reconsideration
in light of
Katz v. United States.
[
Footnote 2/1]
In one instance this doctrine has been applied to a
nonconstitutional decision.
See Lee v. Florida,
392 U. S. 378
(1968), and its aftermath in
Fuller v. Alaska,
393 U. S. 80
(1968).
[
Footnote 2/2]
An exception to this general rule was made, however, when the
habeas petitioner attacked the constitutionality of the state
statute under which he had been convicted.
See, e.g., Ex parte
Siebold, 100 U. S. 371
(1880). Since, in this situation, the State had no power to
proscribe the conduct for which the petitioner was imprisoned, it
could not constitutionally insist that he remain in jail.
[
Footnote 2/3]
Olmstead v. United States, 277 U.
S. 438 (1928);
Goldman v. United States,
316 U. S. 129
(1942);
On Lee v. United States, 343 U.
S. 747 (1952).
[
Footnote 2/4]
After
Silverman was decided, we were careful to frame
our decisions in such a way that a direct consideration of the
"trespass" doctrine could be avoided. In
Lopez v. United
States, 373 U. S. 427,
373 U. S. 439
(1963), we noted that:
"The validity of [
Olmstead and
Goldman] is not
in question here. Indeed, this case involves no 'eavesdropping'
whatever in any proper sense of that term. The Government did not
use an electronic device to listen in on conversations it could not
otherwise have heard. Instead, the device was used only to obtain
the most reliable evidence possible of a conversation in which the
Government's own agent was a participant. . . ."
In
Berger v. New York, 388 U. S.
41, the Court found that New York's eavesdropping
statute contained impermissibly vague standards even with regard to
the authorization of electronic surveillance requiring a trespass.
It concluded that "[t]his disposition obviates the necessity for
any discussion of the other points raised."
Id. at
388 U. S. 44.
Moreover,
Berger made it clear that we had rejected
Olmstead's declaration that the Fourth Amendment did not
protect the integrity of private conversations. Such an action
would hardly strengthen a lawyer's or lower court's confidence in
the continuing vitality of the "trespass" doctrine, which is also
rooted in
Olmstead.
Finally, the Court's suggestion that our unexplicated per curiam
reversal in
Clinton v. Virginia, 377 U.
S. 158 (1964), was premised upon the "trespass"
doctrine,
see ante at
394 U. S. 248,
n. 11, is not supported by the opinion in that case. Only Mr.
Justice Clark expressly predicated his decision upon the doctrine.
The other seven members of the majority did not state the ground
upon which the reversal was based.
[
Footnote 2/5]
While I do not question much that my Brother FORTAS says in his
dissenting opinion, I am unable to adopt the extreme position on
retroactivity he proposes. Before
Silverman was decided in
1961, no decision of this Court had undermined the conceptual basis
of the
Olmstead rule. Before 1961, even the most
conscientious police department or judge had no reason to doubt the
validity of the "trespass" rule. Nevertheless, MR. JUSTICE FORTAS
would grant habeas corpus to prisoners whose convictions became
final before
Silverman. This result cannot be justified
even if one assumes that it is proper for a habeas court to require
"conceptual faithfulness" to our opinions, and "not merely
decisional obedience" to the rules they announce.
See post
at
394 U. S.
277.
[
Footnote 2/6]
Escobedo v. Illinois, 378 U. S. 478
(1964);
Miranda v. Arizona, 384 U.
S. 436 (1966);
United States v. Wade,
388 U. S. 218
(1967);
Gilbert v. California, 388 U.
S. 263 (1967).
MR. JUSTICE FORTAS, dissenting.
*
The decisions today in
Kaiser v. New York and
Desist v. United States apply to only the limited number
of cases where the constitutionally forbidden wiretap or
eavesdropping occurred prior to December 18, 1967. It was on that
day that we decided
Katz v. United States, 389 U.
S. 347, which administered the formal
coup de
grace to the moribund doctrine of
Olmstead v. United
States, 277 U. S. 438
(1928). The Court in effect grants absolution to police invasions
of individual privacy by wiretaps and electronic devices not
involving physical trespass, as long as the unconstitutional
conduct took place before
Katz. It holds that only from
and after
Katz will it apply the Fourth Amendment's
command without reference to whether a physical trespass was
involved. The significance of the decisions is not only that they
deprive a relatively few convicted persons of their constitutional
rights, but also that they diminish the Constitution; they imply
that the availability of constitutional principle can be the
subject of judicial choice in circumstances which, I respectfully
submit, are far from compelling. I cannot agree.
The Court says that it has authority to determine whether a
ruling will be made "retroactive," and it gives several reasons for
its decision not to apply
Katz "retroactively": (1)
Katz "was a clear break with the
Page 394 U. S. 270
past" because it repudiated
Olmstead's requirement of a
physical trespass into the accused's home or office,
ante
at
394 U. S. 248;
(2) the purpose of the
Katz rule excluding evidence even
where there was no physical intrusion was to deter police invasion
of constitutional rights, a purpose that would not be aided by
"retrospective" application of the ruling; (3) police and courts
alike, until
Katz, justifiably relied upon the continuing
vitality of
Olmstead, and (4) it would unduly burden law
administration to apply
Katz "retroactively." The Court
derives these factors from various of its decisions, commencing
with
Linkletter v. Walker, 381 U.
S. 618 (1965), [
Footnote
3/1] in which decisions of this Court have been held to apply
prospectively only. [
Footnote
3/2]
Page 394 U. S. 271
In my judgment, the Court's holding is of pervasive importance
because it adds new and unhappy dimensions to the
"nonretroactivity" doctrine. Not only does the Court deny the
benefit of a fundamental constitutional provision, and not merely
of court-made rules implementing a constitutional mandate [
Footnote 3/3] or of a statutory principle,
[
Footnote 3/4] to a class of
persons because of the chance operation of the judicial calendar;
it does so in face of the fact that the ruling at issue is neither
novel nor unanticipated. The Court's statement to the contrary is,
as I shall discuss, simply insupportable.
I
I do not challenge this Court's power to decline to apply newly
devised rules implementing constitutional principles to prior cases
or situations, or its authority to make similar accommodation when
it changes longstanding
Page 394 U. S. 272
statutory interpretations. Most of the Court's
"nonretroactivity" holdings have emerged in state cases dealing
with the application of a ruling' that was relatively unpresaged
and the practical effect of which, if applied to the past as well
as the future, would be acutely disruptive of state practice and
institutions. In those cases, the pressures of comity and the
hesitancy drastically to nullify state actions lent special force
to the demand that the decision should not be applied
"retroactively." In
DeStefano v. Woods, 392 U.
S. 631 (1968), for example, these circumstances were
deemed to warrant only prospective application of the right to
trial by jury in state prosecutions that was established in
Duncan v. Louisiana, 391 U. S. 145
(1968), and
Bloom v. Illinois, 391 U.
S. 194 (1968).
The Court so held even though it thereby let stand convictions
that had been rendered pursuant to a faulty reading of the
Constitution. Even where considerations that favor
"nonretroactivity" exist, however, a new constitutional rule will
not always be "nonretroactively" applied. The Court has insisted
that all persons, not just those selected by the chance of the
calendar, receive the benefit of newly declared constitutional
commands that are central to the reliability of the factfinding
process at trial and without which innocent persons may have been
adjudged guilty.
See, e.g., Roberts v. Russell,
392 U. S. 293
(1968) (holding retroactive
Bruton v. United States,
391 U. S. 123
(1968));
McConnell v. Rhay, 393 U. S.
2 (1968) (holding retroactive
Mempa v. Rhay,
389 U. S. 128
(1967));
Arsenault v. Massachusetts, 393 U. S.
5 (1968) (holding retroactive
White v.
Maryland, 373 U. S. 59
(1963));
Berger v. California, 393 U.
S. 314 (1969) (holding retroactive
Barber v.
Page, 390 U. S. 719
(1968));
Gideon v. Wainwright, 372 U.
S. 335 (1963);
Griffin v. Illinois,
351 U. S. 12
(1956);
Jackson v. Denno, 378 U.
S. 368 (1964).
Page 394 U. S. 273
In the present cases, the Court decides that the lawfulness of
wiretaps and electronic eavesdropping occurring before December 18,
1967, will be controlled by
Olmstead v. United States,
supra, a decision that the Court agrees is a false and
insupportable reading of the Constitution. The Court holds that the
Fourth Amendment meant something quite different before
Katz was decided than it means afterwards; that
Katz and persons whose rights are violated after the date
of that decision may have the benefit of the true meaning of the
constitutional provision, but that those who were victims before
Katz may not.
If such a distinction in the application of a substantive
constitutional principle can ever be justified, it can be only in
the most compelling circumstances. Such circumstances might
possibly exist if the newly announced principle related only to the
States, in that it extended to the States a principle heretofore
deemed to apply only to the Federal Government, or if "retroactive"
application would place an extreme burden on the administration of
justice; if the new ruling were wholly unanticipated in the
decisions of the Court, and if the new rule did not directly and
clearly affect the fairness of the trial.
Cf. DeStefano v.
Woods, supra; Johnson v. New Jersey, 384 U.
S. 719 (1966);
Linkletter v. Walker, supra. But
there is no justification for refusing "retroactive" application to
a constitutional principle merely because of an earlier reading of
the Constitution that had been widely repudiated as unsound and
that this Court's own intervening opinions had discredited,
although not expressly overruled.
Olmstead is in this
category.
Katz did no more than administer the
coup de
grace to its moribund doctrine. The action of the Court today
cannot be justified by claiming that it is required by
Olmstead's continued vitality. On the contrary, the Court
today breathes life into
Olmstead's corpse.
Page 394 U. S. 274
II
In
Kaiser v. New York, the Court affirms a state
conviction despite the fact that the conviction was based upon
telephone conversations that the police had recorded by a wiretap.
The petitioner made the telephone calls to a coconspirator at a bar
in Manhattan. The police had installed a wiretap device in the
terminal box in the building where the bar was located.
The taps were made pursuant to a warrant issued under a New York
statute. The warrant cannot, however, support the use of the
wiretap evidence, for in
Berger v. New York, 388 U. S.
41, decided on June 12, 1967, we held that the New York
statute did not comply with Fourth Amendment requirements. The
Court's decision rests instead on the fact that the petitioner's
conversations were intercepted and recorded without a trespass and
on the assertion that the
Olmstead doctrine was fully
viable at the time that the petitioner's telephone conversations
were overheard.
In
Desist v. United States, the federal case decided
today, the federal agents attached the "uninvited ear" of the
microphone to the outer instead of the inner panel of the double
door separating their hotel room from that of the petitioners.
Because of this distinction, their conduct is today held to be
immunized from Fourth Amendment attack.
Olmstead would
sanction the differentiation. If the microphone had been attached
to the inner panel, or if the agents had used a device that
impinged by 1/1000th of an inch upon the room rented by
petitioners,
Olmstead would not have sanctified the
result.
See Silverman v. United States, 365 U.
S. 505 (1961). [
Footnote
3/5]
Page 394 U. S. 275
This distinction is, of course, nonsense, as I suppose most
rational persons would agree, and I am unwilling to suppose that,
if the majority in
Olmstead had foreseen the ensuing
development and uninhibited use of electronic devices for searching
out and seizing the words of others, it would have nevertheless
allowed the perimeter of physical property rights to limit the
Fourth Amendment's protection of citizens' privacy from unseen
invasion.
In any event, there is no doubt that
Olmstead was
thoroughly repudiated by this Court long before December 18, 1967,
when
Katz was decided.
Katz is not responsible
for killing
Olmstead. Prior cases had left the physical
trespass requirement of
Olmstead virtually lifeless and
merely awaiting the death certificate that
Katz gave it.
They demonstrated to all who were willing to receive the message
that
Olmstead would not shield eavesdropping because it
took place outside the physical property line.
Silverman v.
United States, supra; Clinton v. Virginia, 377 U.
S. 158 (1964);
Berger v. New York, supra.
Not for 17 years, until this day, has this Court applied
Olmstead to sanction a Fourth Amendment violation because
of
Olmstead's peculiar distinction. [
Footnote 3/6] Statements by the Department of Justice in
recent years have placed
Page 394 U. S. 276
no reliance upon
Olmstead's quaint constriction of the
individual's area of privacy. [
Footnote
3/7] The Omnibus Crime Control and Safe Streets Act of 1968,
recently enacted by Congress, does not recognize
Olmstead's long-outmoded distinction between permissible
and impermissible invasions of privacy. That statute requires
judicial authorization for wiretaps and electronic surveillance,
whether or not they would involve a physical trespass. Pub.L. 9351,
Tit. III, 82 Stat. 211. The New York statute involved in
Kaiser purports to require warrants for eavesdropping, but
it makes no such absurd distinction as
Olmstead describes.
N.Y.Code Crim.Proc. § 813-a. Only those police officials and courts
whose devotion to wiretapping and electronic surveillance is so
intense as to induce them to exploit those techniques until the
last spade of earth is shoveled on the doctrinal corpse have
continued to rely on
Olmstead. It is not the least of the
unfortunate consequences of today's decisions that they validate
this kind of foot-dragging. They reward those who fought the battle
for
Page 394 U. S. 277
uncontrolled police eavesdropping to the bitter end, despite the
clear, though undelivered, verdict. They add this Court's approval
to those who honor the Constitution's mandate only where acceptable
to them or compelled by the precise and inescapable specifies of a
decision of this Court. And they award dunce caps to those law
enforcement officers, courts, and public officials who do not
merely stand by until an inevitable decree issues from this Court,
specifically articulating that which is clearly immanent in the
fulfillment of the Constitution, but who generously apply the
mandates of the Constitution as the developing case law elucidates
them.
The full realization of our great charter of liberty, set forth
in our Constitution, cannot be achieved by this Court alone.
History does not embrace the years needed for us to hold,
millimeter by millimeter, that such and such a penetration of
individual rights is an infringement of the Constitution's
guarantees. The vitality of our Constitution depends upon
conceptual faithfulness, and not merely decisional obedience.
Certainly, this Court should not encourage police or other courts
to disregard the plain purport of our decisions and to adopt a
"let's wait until it's decided" approach.
The best evidence of the moribund state of
Olmstead at
the time
Katz was decided is the Court's opinion in
Katz itself. That opinion acknowledged and relied upon the
fact that
Olmstead had long ceased to have vitality. In
Katz, the Court said:
"It is true that the absence of [physical] penetration was at
one time thought to foreclose further Fourth Amendment inquiry,
Olmstead v. United States, 277 U. S.
438,
277 U. S. 457,
277 U. S.
464,
277 U. S. 466;
Goldman
v. United States, 316 U. S. 129,
316 U. S.
134-136, for that Amendment was thought to limit only
searches and seizures of tangible property. But '[t]he premise that
property interests control the right of the Government
Page 394 U. S. 278
to search and seize has been discredited.'
Warden v.
Hayden, 387 U. S. 294,
387 U. S.
304. Thus, although a closely divided Court supposed in
Olmstead that surveillance without any trespass and
without the seizure of any material object fell outside the ambit
of the Constitution, we have since departed from the narrow view on
which that decision rested. Indeed, we have expressly held that the
Fourth Amendment governs not only the seizure of tangible items,
but extends as well to the recording of oral statements, overheard
without any 'technical trespass under . . . local property law.'
Silverman v. United States, 365 U. S.
505,
365 U. S. 511. Once this
much is acknowledged, and once it is recognized that the Fourth
Amendment protects people -- and not simply 'areas' -- against
unreasonable searches and seizures, it becomes clear that the reach
of that Amendment cannot turn upon the presence or absence of a
physical intrusion into any given enclosure."
"We conclude that the underpinnings of
Olmstead and
Goldman have been so eroded by our subsequent decisions
that the 'trespass' doctrine there enunciated can no longer be
regarded as controlling. . . ."
389 U.S. at
389 U. S.
352-353.
Since
Katz itself recognized that
Olmstead had
been "eroded by our subsequent decisions" and that we had "since
departed from the narrow view on which [it] . . . rested," how can
the Court now say that, because
Katz overruled
Olmstead, it "was a clear break with the past"? The issue
presented by
Desist and
Kaiser is not whether the
petitioners will be given the benefit of
Katz. The issue
is not whether
Katz is "retroactive." The issue is whether
because in
Katz we formally announced that the "reach of
[the Fourth Amendment] . . . cannot turn upon the presence or
absence of a physical intrusion into any given enclosure," persons
claiming the benefit of
Page 394 U. S. 279
this principle prior to that date must be denied its protection.
It is, I submit, entirely appropriate to state the issue in these
terms because there can be no doubt whatever that, if the present
cases had been presented to this Court a day, a year, or a number
of years before
Katz, we would have held that the
petitioners' constitutional rights had been violated, and that the
petitioners were entitled, like any other citizens, to their
constitutional rights. In these circumstances, I utterly fail to
see how today's decisions can be justified. It is indeed a paradox
that
Katz, whose role it was to bury the corpse of
Olmstead, is here being used to revive it.
* [This opinion applies also to No. 2,
Kaiser v. New York,
post, p.
394 U. S.
280.]
[
Footnote 3/1]
Linkletter held that the Court's decision in
Mapp
v. Ohio, 367 U. S. 643
(1961), that illegally seized evidence was not admissible in state
prosecutions, should not be applied "retroactively." In
Tehan
v. Shott, 382 U. S. 406
(1966), the Court held that its decision in
Griffin v.
California, 380 U. S. 609
(1965), that it violates the privilege against self-incrimination
for the prosecution or the trial judge to comment on a criminal
defendant's failure to testify in his defense, should not apply
"retroactively."
Johnson v. New Jersey, 384 U.
S. 719 (1966), held that
Escobedo v. Illinois,
378 U. S. 478
(1964), and
Miranda v. Arizona, 384 U.
S. 436 (1966), should not apply "retroactively."
Stovall v. Denno, 388 U. S. 293
(1967), held that
United States v. Wade, 388 U.
S. 218 (1967), and
Gilbert v. California,
388 U. S. 263
(1967), both of which related to the right to counsel at a pretrial
lineup, should not be applied "retroactively." In
DeStefano v.
Woods, 392 U. S. 631
(1968), the Court held that the right to trial by jury in state
criminal prosecutions that had been established in
Duncan v.
Louisiana, 391 U. S. 145
(1968), and
Bloom v. Illinois, 391 U.
S. 194 (1968), was not "retroactive." Finally, the Court
held in
Fuller v. Alaska, 393 U. S.
80 (1968), that
Lee v. Florida, 392 U.
S. 378 (1968), was not "retroactive."
Lee ruled
that evidence obtained in violation of § 605 of the Federal
Communications Act of 1934, 48 Stat. 1103, 47 U.S.C. § 605, was
inadmissible in state criminal prosecutions.
[
Footnote 3/2]
The meaning of "prospectivity" or "nonretroactivity" has varied
in the Court's decisions. In
Linkletter v. Walker, supra,
394
U.S. 244fn3/1|>n. 1, and
Tehan v. Shott, supra,
394
U.S. 244fn3/1|>n. 1,
Mapp and
Griffin were
said not to apply to convictions that had become final prior to the
announcement of those decisions. But
Mapp and
Griffin were applied to cases pending on direct review at
the time of those decisions.
Johnson v. New Jersey, supra,
394
U.S. 244fn3/1|>n. 1, by contrast, held
Miranda and
Escobedo applicable only to trials begun after
Miranda and
Escobedo were announced.
Stovall
v. Denno, supra, 394
U.S. 244fn3/1|>n. 1, held that the
Wade and
Gilbert decisions should apply only to cases in which the
illegal official conduct took place after the date of decision.
DeStefano v. Woods, supra, 394
U.S. 244fn3/1|>n. 1, held that
Duncan and
Bloom should apply only to cases where the trial commenced
after the date of decision, a date which, since these cases
involved the right to jury trial, was apt to coincide with the date
of the official conduct.
Fuller v. Alaska, supra,
394
U.S. 244fn3/1|>n. 1, held that
Lee v. Florida,
supra, 394
U.S. 244fn3/1|>n. 1, would apply only in cases in which the
illegally obtained evidence was introduced after the date of
decision. In all of these cases, the new rule was applied also in
the case in which it was announced.
[
Footnote 3/3]
Cf. Miranda v. Arizona, 384 U.
S. 436 (1966) (rules concerning in-custody
interrogation);
Mapp v. Ohio, 367 U.
S. 643 (1961) (exclusionary rule).
[
Footnote 3/4]
Cf. Fuller v. Alaska, 393 U. S. 80
(1968).
[
Footnote 3/5]
If the evidence introduced in
Desist had been obtained
by telephone wiretap, I assume the majority would have to agree
that it could not be used at trial. This is a federal case, and as
early as 1937 this Court held that evidence obtained in violation
of § 605 of the Federal Communications Act, 48 Stat. 1103, 47
U.S.C. § 605, may not be received in evidence in a federal court.
Nardone v. United States, 302 U.
S. 379. The fact that a telephone wiretap would not be
admissible in the circumstances of this case further elucidates the
whimsicality of the present decision. As a result of the chance
sequence of decisions, the Court gives less scope to the Federal
Government's violation of constitutional mandate than the Court
would permit in the case of disregard of a statutory command.
[
Footnote 3/6]
The Court did apply the
Olmstead doctrine in
On Lee
v. United States, 343 U. S. 747
(1952).
See also Goldman v. United States, 316 U.
S. 129 (1942).
[
Footnote 3/7]
See, e.g., Hearing pursuant to S.Res. 62 before the
Subcommittee on Constitutional Rights of the Senate Committee on
the Judiciary, 86th Cong., 1st Sess., pt. 4, 1034-1035, 1036
(1959); Hearings on S. 1086, S. 1221, S. 1495, and S. 1822 before
the Subcommittee on Constitutional Rights of the Senate Committee
on the Judiciary, 87th Cong., 1st Sess., 372-373 (1961); Hearings
on S. 2813 and S. 1495 before the Senate Committee on the
Judiciary, 87th Cong., 2d Sess., 11-46 (1962); Hearings pursuant to
S.Res. 39 before the Subcommittee on Administrative Practice and
Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st
Sess., pt. 3, 1154-1165 (1965); Hearings on S. 2187 and other bills
before the Subcommittee on Criminal Laws and Procedures of the
Senate Committee on the Judiciary, 89th Cong., 2d Sess., 33-35
(1966); Hearings pursuant to S.Res. 25 before the Subcommittee on
Administrative Practice and Procedure of the Senate Committee on
the Judiciary, 90th Cong., 1st Sess., 48-58 (1967); Brownell, The
Public Security and Wire Tapping, 39 Cornell L.Q.195 (1954);
Rogers, The Case for Wire Tapping, 63 Yale L.J. 792 (1954).