Lead Opinion
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.
Last Term in Katz v. United States,
Ever since Linkletter v. Walker,
“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.”12
Foremost among these factors is the purpose to be served by the new constitutional rule.
“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 636-637 .14
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
Although there apparently have not been many federal convictions based on evidence gathered by warrantless electronic surveillance,
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,
*252 “[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 732.20
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.
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.
Affirmed.
Notes
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 nar
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 %-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,
The only other issues which warrant mention relate to the Government’s disclosure to the Court of Appeals of two 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,
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.”
See also On Lee v. United States,
See also
See, e. g., Wong Sun v. United States,
Silverman v. United States, supra, at 512.
In Katz,
See Berger v. New York,
See also DeStefano v. Woods,
See Roberts v. Russell,
In other areas where retroactivity has been denied the “purpose” criterion offered much weaker support. Cf. Stovall v. Denno,
Jackson v. Demo,
48 Stat. 1103, 47 U. S. C. § 605.
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.”
We noted in Berger v. New York,
See DeStefano v. Woods,
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.”
Mapp had already been applied in Ker v. California, 374 U. S. 23; Fahy v. Connecticut,
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.
Johnson v. New Jersey,
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,
The dissenting opinion of Me. 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 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,
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
Dissenting Opinion
dissenting.
It is a mystery to me why Katz v. United States,
All this, and more, was stated by Mr. Justice Black in his dissent in Linkletter v. Walker,
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 IB 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,
“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,
Dissenting Opinion
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,
Although it has more than once been said that “new” rules affecting “the very integrity of the fact-finding process,” are to be retroactively applied, Linkletter v. Walker, supra, at 639; see also Tehan v. Shott, supra, at 416; Fuller v. Alaska, supra, at 81, this requirement was eroded to some extent in Johnson v. New Jersey, supra, at 728-729, and. yet further in Stovall v. Denno, supra, at 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 731; Berger v. California,
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,
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 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 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.
Retroactivity on Habeas Corpus.
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,
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.
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 reliti-gate their convictions each time a “new” constitutional rule was announced by this Court.
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 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. 66, 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 pre-existing fact-finding procedures are to be retroactively applied on habeas. See my Brother Black's dissent in Kaufman v. United States, supra, at 235-236. The new habeas, however, is not only concerned with those rules which substantially affect the fact-finding apparatus of the original trial. Under the prevailing notions, Kaufman v. United States, supra, at 224-226, the threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings
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,
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,
Even in this situation, however, the doctrine of stare decisis cannot always be a complete answer to the retro-activity 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,
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,
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,
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 “incor-porationist” philosophy in its pristine purity, see Adam-son v. California,
The relationship for retroactivity purposes among the Escobedo, Miranda, Wade, and Gilbert decisions
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
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.
In one instance this doctrine has been applied to a nonconsti-tutional decision. See Lee v. Florida,
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,
Olmstead v. United States,
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,
Finally, the Court’s suggestion that our unexplicated per curiam reversal in Clinton v. Virginia,
While I do not question much that my Brother Fortas says in his dissenting opinion, I am unable to adopt the extreme position
Escobedo v. Illinois,
Dissenting Opinion
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,
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
I.
I do not challenge this Court’s power to decline to apply newly devised rides implementing constitutional principles to prior cases or situations, or its authority to make similar accommodation when it changes long
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 “non-retroactivity” exist, however, a new constitutional rule will not always be “non-retroactively” 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 fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e. g., Roberts v. Russell,
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,
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,
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,
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,
Not for 17 years, until this day, has this Court applied Olmstead to sanction a Fourth Amendment violation because of Olmstead’s peculiar distinction.
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
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 , 457, 464, 466; Goldman v. United States,316 U. S. 129 , 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 Gov-*278 eminent to search and seize has been discredited.’ Warden v. Hayden,387 U. S. 294 , 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 , 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 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
[This opinion applies also to No. 62, Kaiser v. New York, post, p. 280.]
Linkletter held that the Court’s decision in Mapp v. Ohio,
The meaning of “prospectivity” or “non-retroactivity” has varied in the Court’s decisions. In Linkletter v. Walker, supra, n. 1, and
Cf. Miranda v. Arizona,
Cf. Fuller v. Alaska,
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
The Court did apply the Olmstead doctrine in On Lee v. United States,
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).