In No. 81, here on direct review, petitioner was convicted of
selling narcotics after a trial in which heroin seized in a search
incident to his arrest was introduced into evidence. The Court of
Appeals affirmed, holding that the intervening decision in
Chimel v. California, 395 U. S. 752,
narrowing the scope of permissible searches incident to arrest, was
not to be retroactively applied to searches antedating the date it
was decided, and that the search was valid under
pre-
Chimel law. Evidence at the trial of petitioner in No.
82 included marked bills seized during a pre-
Chimel search
of his apartment following his arrest on narcotics charges. The
arrest and search were upheld at trial, on direct appeal, and in
the District Court and Court of Appeals in proceedings under 28
U.S.C. § 2255.
Held: The judgments are affirmed. Pp.
401 U. S.
649-666,
401 U. S.
699-700.
No. 81, 418 F.2d 159, and No. 82, affirmed.
MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE BLACKMUN, concluded that
Chimel,
supra, is not retroactive, and should not be applied to
searches conducted prior to the date of that decision. Pp.
401 U. S.
649-659.
(a) Where the major purpose of a new constitutional standard is
not to overcome an aspect of a criminal trial that substantially
impairs the truthfinding function and thus raises serious questions
about the accuracy of guilty verdicts in past trials, the new rule
does not require retrospective application. P.
401 U. S.
653.
(b) The Constitution does not require that pre-
Chimel
searches be measured by the new
Chimel standards,
Desist v. United States, 394 U. S. 244.
Petitioners' rights under then-existing law were not violated
either before or during trial, it is not claimed that the evidence
was constitutionally insufficient to prove guilt, and the purpose
of the exclusionary rule will be sufficiently implemented by
applying
Chimel to searches occurring after the date of
decision in that case. P.
401 U. S.
656.
Page 401 U. S. 647
(c) There is no constitutional difference between the
applicability of
Chimel to convictions here on direct
appeal and those involving collateral proceedings, or between
federal and state prisoners. Pp.
401 U. S.
656-659.
MR. JUSTICE BRENNAN concluded that the question is not whether
every person convicted through evidence obtained contrary to
Chimel, supra, is guilty, but rather whether
Chimel compels the conclusion that the invasion of
petitioners' privacy, conducted in justifiable but mistaken
reliance upon the continuing validity of pre-
Chimel
standards, requires the exclusion of the fruits of that invasion
from the factfinding process. He agreed with the plurality opinion
that it does not, and that the
Chimel rule should not be
applied retroactively. Pp.
401 U. S. 660-665.
MR. JUSTICE BLACK concurred in the result on the ground that
Chimel, supra, was wrongly decided. P.
401 U. S.
660.
MR. JUSTICE HARLAN concluded that the judgment should be
affirmed in No. 82, here on collateral review, as the search in
that case should not be subjected to the requirements of
Chimel, supra, since petitioner's conviction became final
prior to
Chimel, then-prevailing law validated the search,
and the conviction was obtained by methods not fundamentally
unfair. Pp.
401 U. S.
699-700.
MR. JUSTICE MARSHALL concluded that the judgment in No. 82
should be affirmed, as the mode of analysis in the plurality
opinion is appropriate in cases here on collateral review, and the
Chimel rule should not be applied retroactively in such
cases. Pp.
401 U. S.
665-666.
WHITE, J., announced the Court's judgment and delivered an
opinion, in which BURGER, C.J., and STEWART and BLACKMUN, JJ.,
joined. STEWART, J., filed a separate statement,
post, p.
401 U. S. 660.
BRENNAN, J., filed an opinion concurring in the result,
post, p.
401 U. S. 660.
HARLAN, J., filed an opinion concurring in the judgment in No. 82
and dissenting in No. 81,
post, p.
401 U. S. 675.
MARSHALL, J., filed an opinion concurring in part and dissenting in
part,
post, p.
401 U. S. 665.
BLACK, J., filed a statement concurring in the result,
post, p.
401 U. S. 660.
DOUGLAS, J., took no part in the consideration or decision of these
cases.
Page 401 U. S. 648
MR. JUSTICE WHITE announced the judgment of the Court and an
opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR.
JUSTICE BLACKMUN join.
The principal question in these cases is whether
Chimel v.
California, 395 U. S. 752
(1969), should be applied retroactively either to the direct review
of petitioner Williams' conviction or in the collateral proceeding
initiated by petitioner Elkanich.
I
In No. 81, federal agents, on March 31, 1967, secured a warrant
to arrest petitioner Williams on charges of selling narcotics in
violation of 21 U.S.C. § 174. Williams was arrested at his home
that night. A quantity of heroin was discovered and seized in the
course of a search incident to the arrest. The trial court
sustained the search, and the heroin was introduced in evidence.
Williams was convicted and sentenced to a 10-year prison term. The
judgment of conviction was affirmed by the Court of Appeals for the
Ninth Circuit.
Williams v. United States, 418 F.2d 159
(CA9 1969). That court held: (1) that our intervening decision in
Chimel v. California, supra, was not retroactive, and did
not govern searches carried out prior to June 23, 1969, the date of
that decision; and (2) that the search was valid under
pre-
Chimel law evidenced by
United States v.
Rabinowitz, 339 U. S. 56
(1950), and
Harris v. United States, 331 U.
S. 145 (1947). The Court of Appeals also
Page 401 U. S. 649
rejected a claim that the search was invalid because the arrest
was a mere pretext for an unwarranted search. We granted
certiorari. 397 U.S. 986 (1970).
In No. 82, petitioner Elkanich was convicted on three counts of
selling narcotics in violation of 21 U.S.C. § 174. He was sentenced
to three concurrent 10-year sentences. The evidence introduced
included marked bills given by federal agents to an intermediary to
use in purchasing narcotics. The bills were seized during a search
of petitioner's apartment following his arrest there. The search
was challenged at trial on the ground that the arrest was invalid.
Both the arrest and the incident search were upheld at trial and on
direct appeal,
Elkanich v. United States, 327 F.2d 417
(CA9 1964), as well as by the District Court and the Court of
Appeals in subsequent proceedings brought by petitioner under 28
U.S.C. § 2255. We granted the petition for certiorari to consider
the effect, if any, of our
Chimel decision, which
intervened when the appeal from denial of petitioner's § 2255
application was pending in the Court of Appeals. 396 U.S. 1057
(1970). We affirm the judgments in both cases.
II
Aside from an insubstantial claim by Williams that his arrest
was invalid, [
Footnote 1]
neither petitioner in this Court suggests that his conviction was
unconstitutionally obtained;
Page 401 U. S. 650
no evidence and no procedures were employed at or before trial
that violated any then-governing constitutional norms. Concededly,
the evidence seized incident to the arrest of both petitioners was
both properly seized and admitted under the Fourth Amendment as
construed and applied in
Harris in 1947 and
Rabinowitz in 1950. Both
Harris and
Rabinowitz, however, were disapproved by
Chimel.
That case considerably narrowed the permissible scope of searches
incident to arrest, and petitioners argue that the searches carried
out in these cases, if judged by
Chimel standards, were
unreasonable under the Fourth Amendment, and the evidence seized
inadmissible at trial. [
Footnote
2] However, we reaffirm our
Page 401 U. S. 651
recent decisions in like situations:
Chimel is not
retroactive and is not applicable to searches conducted prior to
the decision in that case.
Desist v. United States,
394 U. S. 244
(1969).
In
Linkletter v. Walker, 381 U.
S. 618 (1965), we declined to give complete retroactive
effect to the exclusionary rule of
Mapp v. Ohio,
367 U. S. 643
(1961). Relying on prior cases, we firmly rejected the idea that
all new interpretations of the Constitution must be considered
always to have been the law, and that prior constructions to the
contrary must always be ignored. Since that time, we have held to
the course that there is no inflexible constitutional rule
requiring in all circumstances either absolute retroactivity or
complete prospectivity for decisions construing the broad language
of the Bill of Rights. [
Footnote
3] Nor have we accepted as a dividing line
Page 401 U. S. 652
the suggested distinction between cases on direct review and
those arising on collateral attack. [
Footnote 4] Rather, we have proceeded to
"weigh the merits and demerits in each case by looking to the
prior history of the rule in question, its purpose and effect, and
whether retrospective operation will further or retard its
operation."
Linkletter, supra, at
381 U. S. 629.
[
Footnote 5]
Page 401 U. S. 653
Where the major purpose of new constitutional doctrine is to
overcome an aspect of the criminal trial that substantially impairs
its truthfinding function, and so raises serious questions about
the accuracy of guilty verdicts in past trials, the new rule has
been given complete retroactive effect. [
Footnote 6] Neither good faith reliance by state or
federal authorities on prior constitutional law or accepted
practice nor severe impact on the administration of justice has
sufficed to require prospective application in these
circumstances.
It is quite different where the purpose of the new
constitutional standard proscribing the use of certain evidence or
a particular mode of trial is not to minimize or avoid arbitrary or
unreliable results, but to serve other ends. In these situations,
the new doctrine raises no question about the guilt of defendants
convicted in prior trials.
Mapp v. Ohio cast no doubt on
the relevance or probity of illegally seized evidence, but excluded
it from criminal trials to deter official invasions of individual
privacy protected by the Fourth Amendment.
Katz v. United
States, 389 U. S. 347
(1967), overruled
Olmstead v. United States, 277 U.
S. 438 (1928), and
Goldman
Page 401 U. S. 654
v. United States, 316 U. S. 129
(1942), and gave expanded Fourth Amendment protection against
nonconsensual eavesdropping. It followed that evidence obtained by
nontrespassory electronic surveillance of a public telephone booth
became subject to the exclusionary rule, which had been fashioned
by the Court to exact compliance with the Amendment, rather than to
protect defendants from conviction on untrustworthy evidence. Thus,
the Court, when it came to consider the retroactivity of
Mapp and
Katz, was dealing with cases quite
different from those situations where emerging constitutional
doctrine casts such doubt upon the soundness of some aspect of
prior trials that State and Federal Governments were disentitled
from further pursuing the goals of their criminal law against
defendants convicted in such prior trials.
The petitioners in both
Linkletter and
Desist
were convicted in proceedings that conformed to all then-applicable
constitutional norms. In both cases, the government involved had a
concededly guilty defendant in custody and substantial unsatisfied
interests in achieving with respect to such defendant whatever
deterrent and rehabilitative goals underlay its criminal justice
system. Each defendant, Linkletter by the habeas corpus route, and
Desist on direct appeal, claimed the benefit of a later decided
case and demanded a new trial. But ordering new trials would have
involved not only expense and effort, but the inevitable risk of
unavailable witnesses and faulty memories; the authorities might
not have had the evidence they once had, and might have been
foreclosed from obtaining other evidence they might have secured
had they known the evidence they were using was constitutionally
suspect. Moreover, it was not essential to the deterrent purpose of
the exclusionary rule that
Mapp and
Katz be given
retroactive effect; indeed that purpose would have been only
marginally
Page 401 U. S. 655
furthered by extending relief to Linkletter, Desist, and all
others in comparable situations. In these circumstances, we found
no constitutional arrant for setting aside either conviction.
[
Footnote 7]
Page 401 U. S. 656
III
Considering that
Desist represents the sound approach
to retroactivity claims in Fourth Amendment cases, we are confident
that we are not constitutionally bound to apply the standards of
Chimel to the cases brought here by Elkanich and Williams.
Both petitioners were duly convicted when judged by the
then-existing law; the authorities violated neither petitioner's
rights either before or at trial. No claim is made that the
evidence against them was constitutionally insufficient to prove
their guilt. And the
Chimel rule will receive sufficient
implementation by applying it to those cases involving the
admissibility of evidence seized in searches occurring after
Chimel was announced on June 23, 1969, and carried out by
authorities who, through mistake or ignorance, have violated the
precepts of that decision.
IV
Both from the course of decision since
Linkletter and
from what has been said in this opinion, it should be clear that we
find no constitutional difference between the applicability of
Chimel to those prior convictions that are here on direct
appeal and those involving collateral proceedings. Nor, in
constitutional terms, is there any difference between state and
federal prisoners insofar as retroactive application to their cases
is concerned.
Page 401 U. S. 657
We accept MR. JUSTICE HARLAN's truism, stated in dissent, that
our task is to adjudicate cases and the issues they present,
including constitutional questions where necessary to dispose of
the controversy. Hence, we must resolve the Fourth Amendment issues
raised by Elkanich and Williams. But this leaves the question of
how those issues should be resolved. Assuming that neither has a
colorable claim under the pre-
Chimel law, but both would
be entitled to relief if
Chimel is the governing standard,
which constitutional standard is to rule these cases? This is the
unavoidable threshold issue -- as MR. JUSTICE HARLAN describes it
in discussing cases before us on collateral review, a "choice of
law problem."
Post at
401 U. S.
682.
The opinions filed in these cases offer various answers to the
question. We would judge the claims in both
Williams and
Elkanich by the law prevailing when petitioners were
searched. Surely this resolution is no more legislative, and no
less judicial, than that of MR. JUSTICE HARLAN. He feels compelled
to apply new overruling decisions to cases here on direct review,
but deems himself free, with some vague and inscrutable exceptions,
[
Footnote 8] to refuse the
benefits of new decisions to those defendants who collaterally
attack their convictions. The latter judgment seems to rest chiefly
on his own assessment of the public interest in achieving finality
in criminal litigation. The former is not explained at all except
by repeated assertions that cases here on direct review are
different. [
Footnote 9] But we
have no authority to upset
Page 401 U. S. 658
criminal convictions at will. Does the Constitution compel us to
apply
Chimel retroactively and set aside Williams'
conviction when he was convicted on sound evidence secured in
conformity with the then-applicable constitutional law as announced
by this Court? As we have said, we think not -- no more so than it
compels applying the teachings of
Chimel in reviewing the
denial of Elkanich's petition for collateral relief. Other than
considering it inherent in the process of judicial review, MR.
JUSTICE HARLAN does not directly address the question. Nor does he
purport to explain how the purpose of the exclusionary rule
fashioned by this Court as
Page 401 U. S. 659
a Fourth Amendment mechanism will be at all furthered by
mechanically affording Williams the benefit of
Chimel.
We are also unmoved by the argument that, since the petitioners
in cases like
Mapp, Duncan v. Louisiana, 391 U.
S. 145 (1968), and
Katz have been given relief,
when it was only by chance that their cases first brought those
issues here for decision, it is unfair to deny relief to others
whose cases are as thoroughly deserving. It would follow from this
argument that all previous convictions that would be vulnerable if
they occurred today would be set aside. Surely this is the tail
wagging the dog. The argument was fairly met and adequately
disposed of in
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 301
(1967). We see no reason to repeat or reconsider what we said in
that case.
It is urged that the prevailing approach to retroactivity
involves confusing problems of identifying those "new"
constitutional interpretations that so change the law that
prospectivity is arguably the proper course. But we have no such
problems in these cases, since, to reach the result it did, the
Court in
Chimel found it necessary to disapprove
Harris and
Rabinowitz, and, under those cases,
the search in
Chimel and the searches now before us would
have been deemed reasonable for Fourth Amendment purposes.
Moreover, the idea that circumstances may require prospectivity for
judicial decisions construing the Constitution is an old one; it is
not a new problem for the courts. It has not proved unmanageable,
and we doubt that courts and judges have suddenly lost the
competence to deal with the problems that it may present. [
Footnote 10]
The judgments are
Affirmed.
Page 401 U. S. 660
While joining the plurality opinion, MR. JUSTICE STEWART would
also affirm the judgment in No. 82,
Elkanich v. United
States, on the alternative ground that the issue presented is
not one cognizable in a proceeding brought under 28 U.S.C. § 2255.
See Harris v. Nelson, 394 U. S. 286,
394 U. S. 307
(dissenting opinion);
Kaufman v. United States,
394 U. S. 217,
394 U. S. 242
(dissenting opinion);
Chambers v. Maroney, 399 U. S.
42,
399 U. S. 54
(concurring opinion).
MR. JUSTICE BLACK, while adhering to his opinion in
Linkletter v. Walker, 381 U. S. 618,
381 U. S. 640
(1965), concurs in the result on the ground that he believes that
Chimel v. California, 395 U. S. 752
(1969), was wrongly decided.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of these cases.
[For opinion of MR. JUSTICE HARLAN, concurring in the judgment
in No. 82 and dissenting in No. 81,
see post, p.
401 U. S.
675.]
* Together with No. 82,
Elkanich v. United States, also
on certiorari to the same court.
[
Footnote 1]
The Court of Appeals correctly rejected Williams' claim that his
arrest was a pretext to make an otherwise invalid search.
Williams v. United States, 418 F.2d 159, 16161 (CA9 1969).
In his petition for certiorari, Williams also argued that there was
insufficient proof of his knowledge of and control over the heroin
found in the incidental search of his home, and thus that the
Government had failed to prove constructive possession. This claim
was neither briefed nor argued by the parties, and we decline to
disturb the judgment of the Court of Appeals rejecting it.
See 418 F.2d at 162-163.
[
Footnote 2]
Petitioner Williams was arrested pursuant to a warrant in the
living room of his residence shortly after midnight. Eight officers
were involved, and the entire house was searched for a period of
about one hour and 45 minutes. The heroin introduced at trial was
found in a container on a closet shelf in one of the bed rooms.
Williams, supra, n 1,
at 161. The Government does not argue that this search incident to
arrest complies with
Chimel.
Elkanich was arrested without a warrant in his apartment. He
does not argue that the arresting agents did not have probable
cause to arrest, but asserts that the search violated the Fourth
Amendment. Three agents came to petitioner's apartment, and, after
the door was opened by his wife in response to a knock, entered and
immediately arrested petitioner. After handcuffing Elkanich, the
agent in charge called for assistance. Three more agents arrived
within 15 minutes, and they searched the four-room apartment for
over an hour. The supervising agent asked petitioner if he had any
large sums of cash, guns, "or anything of that kind" in the
apartment. Petitioner at first said no, but later indicated there
was some money in a broom closet. The agent found $500 above the
molding at the top of the closet, returned to the living room, and
searched petitioner and his wife, finding $200 on each of them.
Another agent then found a second roll of bills above the molding
in the broom closet, this one totaling about $1,000. Two other
items later introduced in evidence were seized from a closet in the
living room. Of the total of nearly $2,000 seized, $1,550 consisted
of marked bills used by an undercover agent to purchase narcotics
from one Rios, whom petitioner was alleged to be supplying.
The Government here argues that exigent circumstances justify
the search without a warrant. The argument is that the presence of
petitioner's wife in the apartment left the agents only two
choices: (1) to postpone searching until a warrant could be
secured, a course which would entail either some sort of control
over the wife's activity or a risk that evidence would disappear;
or (2) to search the apartment immediately, as they did.
Because of our resolution of the retroactivity question, we find
it unnecessary to pass on this contention.
[
Footnote 3]
Many of the cases are discussed in the majority and dissenting
opinions in
Desist v. United States, 394 U.
S. 244 (1969). These cases, and the general question of
prospective effect for judicial decisions, have generated a
substantial amount of commentary.
See generally Bender,
The Retroactive Effect of an Overruling Constitutional Decision:
Mapp v. Ohio, 110 U.Pa.L.Rev. 650 (1962); Currier, Time
and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev.
201 (1965); Levy, Realist Jurisprudence and Prospective Overruling,
109 U.Pa.L.Rev. 1 (1960); Meador, Habeas Corpus and the
"Retroactivity" Illusion, 50 Va.L.Rev. 1115 (1964); 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
(1965); Schaefer, The Control of "Sunbursts": Techniques of
Prospective Overruling, 42 N.Y.U.L.Rev. 631 (1967); Schwartz,
Retroactivity, Reliability, and Due Process: A Reply to Professor
Mishkin, 33 U.Chi.L.Rev. 719 (1966); Spruill, The Effect of an
Overruling Decision, 18 N.C.L.Rev.199 (1940); Note, Retroactivity
of Criminal Procedure Decisions, 55 Iowa L.Rev. 1309 (1970);
Comment,
Linkletter, Shott, and the Retroactivity Problem
in
Escobedo, 64 Mich.L.Rev. 832 (1966); Comment,
Prospective Overruling and Retroactive Application in the Federal
Courts, 71 Yale L.J. 907 (1962).
Cf. Kitch, The Supreme
Court's Code of Criminal Procedure: 1968-1969 Edition, 1969
Sup.Ct.Rev. 155, 183-200.
[
Footnote 4]
See post, p.
401 U. S. 675
(HARLAN, J., concurring in judgments and dissenting).
Compare 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 (1965),
with Schwartz,
Retroactivity, Reliability, and Due Process: A Reply to Professor
Mishkin, 33 U.Chi.L.Rev. 719 (1966).
In rejecting the distinction between cases pending on direct
review and those on collateral attack, the Court in
Johnson v.
New Jersey, 384 U. S. 719,
384 U. S. 732
(1966), stated:
"Our 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."
[
Footnote 5]
In our more recent opinions dealing with the retroactive sweep
of our decisions in the field of criminal procedure, the approach
mandated by
Linkletter has come to be summarized in terms
of a threefold analysis directed at discovering:
"(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."
Stovall v. Denno, 388 U. S. 293,
388 U. S. 297
(1967);
see also Desist v. United States, 394 U.
S. 244,
394 U. S. 249
(1969).
[
Footnote 6]
See, e.g., Arsenault v. Massachusetts, 393 U. S.
5 (1968) (giving retroactive effect to the right to
counsel provided in
White v. Maryland, 373 U. S.
59 (1963));
McConnell v. Rhay, 393 U. S.
2 (1968) (giving retroactive effect to the right to
counsel provided in
Mempa v. Rhay, 389 U.
S. 128 (1967));
Berger v. California,
393 U. S. 314
(1969) (giving retroactive effect to
Barber v. Page,
390 U. S. 719
(1968));
Roberts v. Russell, 392 U.
S. 293 (1968) (giving retroactive effect to
Bruton
v. United States, 391 U. S. 123
(1968));
Jackson v. Denno, 378 U.
S. 368 (1964);
Gideon v. Wainwright,
372 U. S. 335
(1963);
Douglas v. California, 372 U.
S. 353 (1963);
Griffin v. Illinois,
351 U. S. 12
(1956).
[
Footnote 7]
The Fourth Amendment cases do not stand alone. We have reached
similar results in holding nonretroactive new interpretations of
the Fifth Amendment's privilege against compelled
self-incrimination, although some ramifications of the privilege
have more connection with trustworthy results than does the
exclusionary rule designed to enforce the Fourth Amendment.
See
Tehan v. Shott, 382 U. S. 406,
382 U. S.
414-415, n. 12 (1966);
Johnson v. New Jersey,
384 U. S. 719,
384 U. S. 730
(1966);
Desist v. United States, 394 U.S. at
394 U. S.
249-250, n. 14;
cf. Mackey v. United States,
post at
401 U. S.
674-675. So, too, the right to jury trial secured by the
Sixth Amendment "generally tends to prevent arbitrariness and
repression,"
DeStefano v. Woods, 392 U.
S. 631,
392 U. S. 633
(1968), and the holdings in
United States v. Wade,
388 U. S. 218
(1967), and
Gilbert v. California, 388 U.
S. 263 (1967), carry implications for the reliability of
identification testimony. But both
Duncan v. Louisiana,
391 U. S. 145
(1968), obligating the States to recognize the right to jury trial
by virtue of the Fourteenth and Sixth Amendments, and
Wade
and
Gilbert were applied only prospectively in view of the
countervailing considerations that retroactivity would entail.
DeStefano v. Woods, supra; Stovall v. Denno, 388 U.
S. 293 (1967).
In both
Johnson and
Stovall, we frankly
acknowledged that "[t]he extent to which a condemned practice
infects the integrity of the truth-determining process at trial is
a
question of probabilities.'" 388 U.S. at 388 U. S. 298.
Where we have been unable to conclude that the use of such a
"condemned practice" in past criminal trials presents substantial
likelihood that the results of a number of those trials were
factually incorrect, we have not accorded retroactive effect to the
decision condemning that practice. See e.g., DeStefano,
392 U.S. at 392 U. S.
633-634 (quoting Duncan):
"'We would not assert, however, that every criminal trial -- or
any particular trial -- held before a judge alone is unfair, or
that a defendant may never be as fairly treated by a judge as he
would be by a jury.'"
Our Brother HARLAN criticizes these decisions, stating that he
finds
"inherently intractable the purported distinction between those
new rules that are designed to improve the factfinding process and
those designed principally to further other values."
Post at
401 U. S. 695.
Earlier, he suggests that
"those new rules cognizable on habeas ought to be defined not by
the 'truth-determining' test, but by the
Palko [v.
Connecticut, 302 U. S. 319,
302 U. S.
325 (1937)] test."
Post at
401 U. S. 694.
But operating within the confines of a rule that seeks to
determine,
inter alia, whether a newly proscribed practice
has probably produced factually improper results in cases where it
was employed is surely to proceed with more definite bearings than
are provided by a "test" that seeks to define those procedures
which are "implicit in the concept of ordered liberty."
See n 8,
infra.
[
Footnote 8]
Compare MR. JUSTICE HARLAN's treatment of petitioner
Elkanich's case,
post at
401 U. S.
699-700,
with his resolution of
Mackey,
post at
401 U. S.
700-701.
Cf. his discussion of
Gideon
and its application to cases on collateral review.
Post at
401 U. S.
693-694.
[
Footnote 9]
Let us assume that X and Y are accomplices in a murder, and that
they are tried separately in the state courts. For any one of
several reasons, including reversal and retrial or consensual
delay, X's case proceeds slowly through direct review, while Y's
conviction is quickly affirmed. Assume further that, after X's
conviction is affirmed by the State's highest court, this Court
holds that a practice employed in both the X and Y trials violates
the Constitution. Both X and Y come before this Court at the same
time, seeking to have the new rule applied to their cases -- X on
direct review and Y by way of collateral attack. (Or, X and Y could
be petitioners tried for wholly different offenses in different
States or in different districts in the federal system. X, tried in
a crowded jurisdiction and having appellate review in a busy
judicial system, would be before this Court on direct review, while
Y, whose case arose before less congested courts, would most likely
be here on collateral attack.)
Under MR. JUSTICE HARLAN's approach, X automatically receives
the benefit of the new rule -- because we are a court of law
somehow bound to decide all cases here on direct review in
accordance with the law as it exists when the case arrives for
consideration. Although we remain a court of law, Y may or may not
receive the benefit of the new rule, the result depending on
whether the new rule is designed to correct a practice that has
come, over time, to shock our Brother's conscience. Under our
approach today, the results as to X and Y would be consistent, as
they should be.
As a perceptive jurist has remarked:
"[W]hen a court is itself changing the law by an overruling
decision, its determination of prospectivity or retroactivity
should not depend upon the stage in the judicial process that a
particular case has reached when the change is made. Too many
irrelevant considerations, including the common cold, bear upon the
rate of progress of a case through the judicial system."
Schaefer,
supra, n
3, at 645.
[
Footnote 10]
Nor is the problem "greatly ameliorated,"
post at
401 U. S. 695,
by the approach suggested by MR. JUSTICE HARLAN. For whenever our
Brother HARLAN considers a case on collateral review, he must of
necessity determine which of the prisoner's claims are grounded on
"new" rules in deciding what "the law in effect [was] when a
conviction became final,"
post at
401 U. S.
692.
MR. JUSTICE BRENNAN, concurring in the result.
Chimel v. California, 395 U. S. 752
(1969), applied principles established by a long line of cases
[
Footnote 2/1] to determine the
permissible scope of a warrantless search sought
Page 401 U. S. 661
to be justified as the necessary incident of a lawful arrest.
But in applying these principles to the circumstances involved in
Chimel, we were compelled to overrule
Harris v. United
States, 331 U. S. 145
(1947), and
United States v. Rabinowitz, 339 U. S.
56 (1950).
Harris and
Rabinowitz were
founded on
"little more than a subjective view regarding the acceptability
of certain sorts of police conduct, and not on considerations
relevant to Fourth Amendment interests."
Chimel, supra at
395 U. S.
764-765;
see United States v. Rabinowitz,
supra, at
339 U. S. 83
(Frankfurter, J., dissenting). By the time of
Chimel, this
view had long since been rejected; but until that day,
Harris and
Rabinowitz survived as direct
authority for the proposition that a lawful arrest would somehow
justify a warrantless search of the premises on which the arrest
was made, beyond the immediate reach of the person arrested.
[
Footnote 2/2]
Accordingly, we are presented in these cases with the question
whether
Chimel should be applied to require the exclusion
at trial of evidence which is the fruit of a search, carried out
before our decision in
Chimel, and which would be lawful
if measured by the standards of
Harris and
Rabinowitz, but unlawful under the rule of
Chimel. The Court today holds that the fruits of searches
made prior to our decision in
Chimel may be used in
criminal trials if the searches may be justified
Page 401 U. S. 662
under the standards of
Harris and
Rabinowitz
as those standards had previously been applied.
See, e.g., Von
Cleef v. New Jersey, 395 U. S. 814
(1969). I agree. In
Stovall v. Denno, 388 U.
S. 293,
388 U. S. 297
(1967), we said that
"[t]he criteria guiding resolution of [this] 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."
All three factors imply that the rule of
Chimel should
be applied only to searches carried out after
Chimel was
decided.
I
Like the Fifth Amendment's protection against compulsory
self-incrimination, the warrant requirement of the Fourth Amendment
stakes out boundaries beyond which the government may not tread in
forcing evidence or information from its citizens. When coercion,
impermissible under the Fifth Amendment, has actually produced an
involuntary statement, we have invariably held that the fruits of
that unconstitutional coercion may not be used to prosecute the
individual involved for crime.
E.g., Rochin v. California,
342 U. S. 165,
342 U. S. 173
(1952) (Frankfurter, J.);
Ashcraft v. Tennessee,
322 U. S. 143
(1944);
Boyd v. United States, 116 U.
S. 616,
116 U. S.
630-635,
116 U. S. 638
(1886). [
Footnote 2/3] Exclusion of
statements impermissibly coerced is not merely a device to deter
government agents from improper conduct in the future. Exclusion of
coerced testimony is part and parcel of the privilege
Page 401 U. S. 663
against self-incrimination. Likewise, when a search
impermissible under the Fourth Amendment results in the seizure of
evidence, exclusion of the fruits of that unconstitutional invasion
is required not merely in hope of deterring unconstitutional
searches in the future, but in order to vindicate the right of
privacy guaranteed by the Fourth Amendment.
See Boyd v. United
States, supra; Weeks v. United States, 232 U.
S. 383,
232 U. S.
390-394,
232 U. S. 398
(1914);
Mapp v. Ohio, 367 U. S. 643,
367 U. S. 656,
367 U. S. 660
(1961). Exclusion of evidence in order to vindicate the right of
privacy, however, does not improve the reliability of the
factfinding process at trial.
See Desist v. United States,
394 U. S. 244,
394 U. S.
249-250 (1969), and cases cited. Accordingly, this
factor does not require that the standards of
Chimel be
retroactively applied.
Desist v. United States, supra; Stovall
v. Denno, 388 U.S. at
388 U. S. 297-299.
II
The factor of reliance by law enforcement officials on
Harris and
Rabinowitz points in the same
direction. As we recognized in
Chimel itself, Fourth
Amendment jurisprudence has often followed a tortuous path. 395
U.S. at
395 U. S.
755-762. So long as
Harris and
Rabinowitz were not visibly overruled, we cannot be
surprised that policemen and those who offer them guidance may not
have scrutinized their doctrinal underpinnings for signs of
erosion. And the extent of reliance, it appears, has been
considerable. The Government represents, and petitioners do not
seriously dispute, that a very substantial number of searches have
been carried out in reliance upon these cases. In many of these,
there is no reason to doubt that a warrant could and would have
been obtained if the officials involved had been aware that a
warrant would be required. This factor as well, therefore, implies
that
Chimel should have only prospective application.
Page 401 U. S. 664
III
Finally, we must evaluate the probable impact of retroactive
application on the administration of justice. Persons convicted
through the use of evidence inadmissible under
Chimel have
been found to have engaged in conduct that the government involved
may legitimately punish.
Chimel casts no doubt upon the
propriety of the government's interest in punishing those who have
engaged in such conduct. Accordingly, it may fairly be assumed that
retroactive application of its standards would result in a
substantial number of retrials. Yet
Chimel likewise casts
no doubt upon the reliability of the initial determination of guilt
at the previous trial. Moreover, the legitimate reliance of law
enforcement officials on
Harris and
Rabinowitz,
as already noted, may well have led them to conduct a warrantless
search merely because the warrant requirement, although easily
satisfied, was understandably not understood. The consequence of
this is that retroactive application of the standards applied in
Chimel would impose a substantial burden upon the federal
and state judicial systems, while serving neither to redress
knowing violations of individual privacy nor to protect a class of
persons the government has no legitimate interest in punishing.
IV
This is not to say, however, that petitioners are to be denied
relief because they are probably guilty. "[T]here is always in
litigation a margin of error, representing error in factfinding."
Speiser v. Randall, 357 U. S. 513,
357 U. S. 525
(1958). The constitutional requirement that guilt in criminal cases
be proved beyond a reasonable doubt serves to limit, but cannot
eliminate, the number of criminal defendants found guilty who are
in fact, innocent.
See In re Winship, 397 U.
S. 358,
397 U. S.
370-372 (1970) (concurring
Page 401 U. S. 665
opinion). In the present cases, both petitioners asserted their
innocence by pleading not guilty and going to trial, and petitioner
in No. 81, whose case is here on direct review, raised in his
petition for certiorari the question whether the evidence presented
at trial was sufficient to support a finding of guilt. But this
Court does not sit to review such questions. In denying retroactive
application to the rule of
Chimel, we neither do nor could
determine that every person convicted by the use of evidence
obtained contrary to that rule is, in fact, guilty of the crime of
which he was convicted. The question we face is not the legitimacy
or sincerity of petitioners' claims of innocence, or indeed whether
any such claims are expressly made at all. It is, instead, whether
Chimel v. California compels us to conclude that the
invasion of petitioners' privacy, conducted in justifiable but
mistaken reliance upon the continuing validity of
Harris
and
Rabinowitz, requires the exclusion of the fruits of
that invasion from the factfinding process at trial. I agree with
the Court that it does not, and that the standards of
Chimel should apply only to searches carried out after
June 23, 1969.
[
Footnote 2/1]
Our cases have settled the proposition that the Fourth Amendment
requires agents of the Government to obtain prior judicial approval
of all searches and seizures,
see, e.g., Davis v.
Mississippi, 394 U. S. 721,
394 U. S. 728
(1969);
Katz v. United States, 389 U.
S. 347,
389 U. S.
356-357 (1967);
James v. Louisiana,
382 U. S. 36
(1965);
Preston v. United States, 376 U.
S. 364,
376 U. S. 368
(1964);
McDonald v. United States, 335 U.
S. 451,
335 U. S.
455-456 (1948);
Agnello v. United States,
269 U. S. 20,
269 U. S. 33
(1925), subject only to a few narrow and well delineated exceptions
grounded upon urgent necessity.
Terry v. Ohio,
392 U. S. 1,
392 U. S. 16-27
(1968);
see Katz v. United States, supra, at
389 U. S. 357
n.19 and cases cited;
cf. Chambers v. Maroney,
399 U. S. 42
(1970). And, in all events, "[t]he scope of [a] search must be
strictly tied to and justified by' the circumstances which
rendered its initiation permissible." Terry v. Ohio,
supra, at 392 U. S. 19,
quoting Warden v. Hayden, 387 U.
S. 294, 387 U. S. 310
(1967) (concurring opinion).
[
Footnote 2/2]
Long before
Chimel, of course, we had made clear that
Harris and
Rabinowitz were not themselves without
limit.
James v. Louisiana, 382 U. S.
36 (1965);
Kremen v. United States,
353 U. S. 346
(1957);
see Von Cleef v. New Jersey, 395 U.
S. 814 (1969);
Stanley v. Georgia, 394 U.
S. 557,
394 U. S.
569-572 (1969) (STEWART, J., concurring in result).
[
Footnote 2/3]
Under what circumstances the Fifth Amendment requires that the
individual concerned be granted immunity from prosecution for the
matters revealed in his statements is a question not pertinent
here.
See Piccirillo v. New York, 400 U.
S. 548,
400 U. S.
561-573 (1971) (BRENNAN, J., dissenting).
MR. JUSTICE MARSHALL, concurring in part and dissenting in
part.
After studying afresh the pattern of the Court's retroactivity
decisions since
Linkletter v. Walker, 381 U.
S. 618 (1965), I conclude that a decision of this Court
construing the Constitution should be applied retroactively to all
cases involving criminal convictions not yet final at the time our
decision is rendered. Sound jurisprudential reasoning, so well
articulated by MR. JUSTICE HARLAN in his separate opinion covering
the present cases,
post, p.
401 U. S. 675,
in my view, requires that cases still on direct review should
receive full benefit of our supervening constitutional decisions. I
am persuaded that
Page 401 U. S. 666
willingness to tolerate the inevitable costs and anomalies of
the Court's current approach to retroactivity is incompatible with
the judicial duty of principled review of convictions not yet
final.
I disagree somewhat with MR. JUSTICE HARLAN as to the proper
approach to retroactivity for cases arising on habeas corpus or
other modes of collateral attack. In such cases, I believe it is
best to employ the three-part analysis that the plurality
undertakes today in deciding the retroactivity of the rule in
Chimel v. California, 395 U. S. 752
(1969). This mode of analysis was foreshadowed in
Linkletter, where the question was whether the rule of
Mapp v. Ohio, 367 U. S. 643
(1961), should be applied on collateral review. The method commends
itself, once the point of finality after direct review is passed,
as a careful and appropriate way of adjudicating the "procedural"
rights of litigants in view of the purposes of a new decisional
rule and the concerns of effective law enforcement. In particular,
if the purposes of a new rule implicate decisively the basic
truth-determining function of the criminal trial, then I believe
the rule should be given full retroactive application, for the
required constitutional procedure itself would then stand as a
concrete embodiment of "the concept of ordered liberty."
Palko
v. Connecticut, 302 U. S. 319,
302 U. S. 325
(1937).
In light of the above, I concur in the Court's disposition of
No. 82. That case is before us on collateral review. For cases in
such a posture the mode of analysis used by the plurality is
appropriate, and I agree that the
Chimel rule should not
be applied retroactively to such cases.
No. 81 is before us on direct review. Since there is a clear
violation of
Chimel on the facts, I would reverse the
judgment below, for I believe that the same constitutional rule
should be applied to adjudicate the rights of the petitioner in No.
81 as was applied in
Chimel's case.