Stone v. Powell

WARDEN STONE, v. POWELL Argued February 24, No. July 6, 74-1055. 1976 Decided 1976* Wolff, *Together 74-1222, Rice, No. Warden on certiorari with Appeals Eighth for the United States Court Circuit. Oranucci, Robert R. Deputy Attorney General of Cali- fornia, argued petitioner for cause No. 74-1055. him With on the Attorney briefs were Evelle Younger, J. Winkler, General, Jack R. Attorney Chief Assistant O’Brien, Edward P. General, Attorney Assistant Gen- Jr., and eral, Thompson, Brady, K. Thomas A. Clifford Niver, E. Deputy Attorneys and Ronald General. Mel- Kammerlohr, vin Kent Attorney Assistant General of argued petitioner the cause for in No. 74—1222. Nebraska, him on the Douglas, Attorney With brief was Paul L. General. by Peterson, Court,

Robert appointment W. and filed a brief 817, argued 423 U. S. cause for Cunningham in No. 74-1055. William C. respondent respondent for in No. 74-1222. argued the cause With Green.† Patrick him on the brief was J. urging 74^1222 were filed Briefs curiae reversal No. of amici

† by Babbitt, Attorney Shirley Frondorf, General, and Bruce E. H. Attorneys General, Galati, Frank T. Assistant and William J. Schafer opinion delivered Powell Mr. Justice Court. of criminal convicted in these cases were

Respondents were af- their convictions in state and courts, offenses relied case in each prosecution appeal. firmed on alleged seizures by searches and obtained upon evidence respondent Each been unlawful. by respondents have by Court in a Federal District subsequently sought relief under of federal filing petition for a writ Attorney by Bolton, Gen- Arizona; III, Arthur K. for State of Attorney General, Richard II, Deputy eral, Chief Robert S. Stubbs Davis, Attorney General, Chambers, Deputy and G. Thomas L. by Georgia; Attorney General, the State of Assistant for Senior Bogard, Sendak, Attorney General, P. and Donald Theodore L. Turner, Attorney General, Indiana, C. Assistant and Richard Attorney Iowa; Iowa, Indiana and General of for the States of by Romney, Attorney General, Bar- Vernon B. and William W. Attorney General, rett, Assistant Utah. for State of Cleary John J. filed a brief for the California Public Defenders Assn, urging as amicus curiae affirmance in 74r-1055. Briefs of No. urging by Mary amici curiae affirmance in No. 74r-1222were filed Against M. for the National Alliance Racist and Political Kaufman Repression; by Henry McGee, Jr., W. National Conference Lawyers; Hyman Black Lawyers’ Jonathan M. for the National ah; et Guild Theodore A. and Robert B. Davison Gottfried Legal for the National Aid and Defender Assn. Friedman, Leon Wvlf, Melvin L. and Joel M. Gora filed a brief for the American Civil Liberties as Union amicus curiae in both cases. Briefs by of amici curiae in No. 74^1222 were filed Robert Shevin, Attorney General, Stephen L. and Koons, R. Assistant At- torney General, Florida; by for the State of Hyland, William F. Attorney General, Baime, David S. DeCicco, John and Daniel Grossman, Deputy Attorneys Louis General, for the State of New Jersey; by Lefkowitz, Attorney Louis J. General, Samuel A. Hirsh- owitz, Attorney General, First Assistant and Cohen, Lillian Z. Attorney Assistant General, for the State York; by of New and Carrington, Frank Inbau, Wayne Fred E. Schmidt, W. James R. Thompson, and William K. Lambie for Americans for Effective Law Inc., et Enforcement, al. presented

28 U. S. C. question § 2254. whether consider, petition a federal court should a ruling on by relief filed a state a claim that prisoner, evidence obtained an search or sei- unconstitutional previously zure was introduced at his has trial, when he opportunity been afforded an for full fair litigation and of his claim in the state courts. is of The issue consid- erable importance to the of criminal administration justice.

I first procedural We summarize the relevant facts history of these cases.

A Lloyd Respondent was murder Powell convicted of 1968 after trial in At June a California state court. midnight February 17, about 1968, he and three com- panions Liquor entered the Bonanza Ber- Store San nardino, Cal., where Powell became in an involved alter- with cation Gerald over the Parsons, manager, store theft of a In scuffling bottle wine. that followed Powell shot and killed Parsons’ wife. Ten hours later an officer of Nev., Department Police ar- Henderson, vagrancy rested Powell for violation of the Henderson ordinance,1 and in the search incident arrest dis- expended covered .38-caliber revolver with car- six tridges cylinder.

Powell was extradited to California and convicted provides: 1 The ordinance

“Every person vagrant is a wbo: upon place place Loiters the streets from or wanders

“[1] himself and to account for his without apparent reason or business presence ^[2] when who refuses to asked identify police officer to do so ^[3] if surrounding circumstances are such safety public to indicate to a man reasonable demands such identification.” Superior murder in the Court of Ber-

second-degree San County. accomplices at nardino Parsons and Powell’s A against criminologist him. liquor the store testified gun the testified that the revolver found on Powell was rejected court that killed Parsons’ wife. The trial testimony by the Henderson Powell’s contention that discovery the of the re- police officer as to the search and vagrancy volver should have been excluded because In ordinance was unconstitutional. October conviction was a California District Court of affirmed duly Appeal. Although presented, the issue was that unnecessary court it pass upon legality found error, the arrest and search because it concluded that the if any, admitting testimony of the Henderson offi- beyond cer was harmless doubt under reasonable Chapman California, 386 U. S. 18 Su- preme Court petition of California denied Powell’s relief. August

In an petition Powell filed amended for a writ of federal habeas corpus under 28 U. S. C. 2254 in § the United States District Court for the Northern Dis- trict of California, contending testimony that con- cerning the .38-caliber revolver should have been excluded as the fruit of illegal argued an search. He that his arrest had been unlawful because the Henderson vagrancy ordinance was unconstitutionally vague, arresting that the probable officer lacked to believe cause that he violating was it. The District Court concluded arresting probable officer had cause held if vagrancy even ordinance was unconstitutional, the deterrent purpose rule does not require applied it be to bar admission the fruits of a search incident to an otherwise valid In arrest. agreed that court with alternative, the California District Court of Appeal that the admission of the evidence con- beyond if a cerning was harmless arrest, error, Powell’s reasonable doubt. Appeals

In the Court of for the Ninth December court concluded Circuit 507 F. 2d 93. The reversed. unconstitutionally vagrancy that ordinance was that arrest was vague,2 Powell’s therefore illegal, no although exclusion of the would serve evidence purpose regard police deterrent with to officers who were enforcing statutes exclusion would good serve faith, public deterring legislators enacting interest from Id., statutes. 98. unconstitutional at After an inde- pendent review of the evidence court concluded that the admission of the evidence was harmless error supported since it testimony of Parsons and Powell’s accomplices. at Id., 99.

B Respondent David Rice was convicted murder in April 1971 after in a trial Nebraska state court. At 2:05 a. on August m. Omaha police tele- received phone call that a woman had screaming been heard at 2867 Ohio Street. As one of the officers sent to that address examined a suitcase lying in the it doorway, ex- ploded, killing instantly. By him August the investi- gation of the murder centered on Duane Peak, 15-year-old member of the National to Committee Com- support In vagueness holding relied principally court Papachristou Jacksonville, (1972), 405 U. S. 156 where city we part defining vagrants invalidated a "per ordinance in wandering sons strolling place any or around from place without object purpose lawful Id., . . 156-157, Noting . at 1. n. similarity between the first element of ordinance, the Henderson see 1, supra, ordinance, n. and the Jacksonville it concluded second and third elements the Henderson ordinance sufficiently were not specific vagueness. to cure its 2d, overall F. 95-97. Peti challenges tioner Stone these conclusions, but in disposi view our tion of the case need we not consider this issue.

bat Fascism (NCCF), and that afternoon a warrant was investigation issued for Peak’s arrest. The also focused on other including known members of the NCCF, Rice, some of whom kill planning were believed to be Peak before he could incriminate them. In their search for Peak, police went Rice’s 10:30 home at night lights found and a but there on, television was no response repeated knocking. to their While some officers remained to watch the a warrant was premises, obtained explosives to search for weapons and illegal believed to possession. be Rice’s Peak not in the was but house, upon entering police plain the discovered, view, blasting dynamite, caps, and other materials use- ful the construction of explosive devices. Peak subsequently August was and on arrested, Rice voluntarily surrendered. The Rice wearing clothes was at that time were subjected to chemical disclos- analysis, ing dynamite particles.

Rice was tried for first-degree murder in District the Court of Douglas County. At trial Peak plant admitted ing the suitcase and making telephone the and call, implicated Rice in the bombing plot. As corroborative evidence the State introduced during items seized the as search, well as the analysis results of the chemical Rice’s clothing. The court denied Rice’s sup motion to press this appeal On Supreme the Court of evidence. Nebraska affirmed the holding the search conviction, of Rice’s home pursuant had been to a valid search warrant. Rice, State v. 188 Neb. 199 2d N. W. 480 (1972).

In September 1972 Rice petition filed a for a writ of in the United States District Court for Nebraska. Rice’s sole contention was that his incarcera- tion was unlawful because the evidence underlying his conviction had been discovered as the illegal result an concluded that search of his home. The District Court affi- supporting the search warrant was as the invalid, States, v. United Spinelli davit was defective under Texas, Aguilar and 378 U. S. (1969), The court Supp. (1974).3 388 F. 190-194 if rejected also the State’s contention even justified warrant invalid was because was the search of the the valid arrest warrant for Peak and because to Peak exigent danger circumstances of the situation — posses- and search for bombs explosives and believed in sion of NCCF. arrest The court reasoned that not justify entry warrant did lacked police probable house, cause believe Peak was in the further concluded that the circumstances were not suffi- ciently exigent justify an immediate warrantless presented magistrate sole evidence was the affidavit support application. police of the warrant It indicated that explosives illegal weapons present believed home were in Rice’s (1) NCCF, (2) because was an Rice official violent killing appeared of an had it officer occurred and NCCF (3) police was involved, past and had received information in the weapons possessed Rice explosives, and which he had said should that against police. be Supp., used the 1. See 388 F. at n. In 189 concluding there probable that existed cause of the for issuance warrant, although Supreme the Nebraska Court found the affidavit sufficient, alone it also referred to information in testi contained mony suppression at hearing adduced the but not in the included 728, 738-739, affidavit. 188 Neb. 480, 199 N. 2d 487-488. See W. id., 2d, also at 199 (concurring opinion). N. W. 495 at The probable-cause District limited inquiry Court its face the to the Spinelli affidavit, see v. States, United S., 3; 393 U. 413 n. at Aguilar Texas, 378 S., prob v. at 109 n. 1, and concluded lacking. able cause was Petitioner police Wolff contends should permitted supplement the information an contained in affidavit for hearing a search at suppress, warrant the on a motion to Whiteley contention that we have rejected, see, g., several times v. e. Warden, Aguilar (1971); Texas, supra, 401 U. S. 565 n. 8 v. 109 again n. and need not reach here.

474 Id., Appeals The Court of for

search. at 194-202.4 substantially for the reasons Eighth Circuit affirmed, (1975). 513 2d 1280 stated the District Court. F. respec- wardens of the Wolff, Petitioners Stone and are prisons tive state where Powell Rice incarcerated, petitioned raising questions for review of these decisions, role concerning scope corpus of federal habeas and the upon of the rule collateral review of cases Fourth Amendment their involving granted claims. We petitions 422 (1975).5 for certiorari. We U. S. now reverse.

II authority of the writ of The federal courts to issue subjiciendum in the first ad was included dynamite District Court further evidence held particles clothing suppressed found on Rice’s should have been the tainted fruit of an arrest warrant that would not been issued have Supp., but unlawful search at 202-207. of his home. 388 F. Wong States, (1963); See Sun v. United Silverthorne U. S. Lumber States, Co. v. United 251 U. S. 385 5In granting requested the orders certiorari in these cases we counsel in Stone Powell respectively Rice address the Wolff questions: light “Whether, of the fact that the District Court found that Henderson, Nev., police probable officer had cause to arrest respondent for violation of an ordinance which at the time of authoritatively the arrest had not been determined to be unconstitu- tional, respondent’s gun claim that discovered as a result of a search incident to that rights arrest violated his under the Fourth and Fourteenth Amendments to the United States Constitution is cognizable one under 28 U. S. C. §2254. validity entry

“Whether and search of respondent’s premises by police Omaha officers under the circum- question stances properly cognizable of this case is a under 28 U. S. C. 2254.” § 6It is phrase now well established that corpus” the “habeas used alone refers the corpus subjicien- to common-law writ of habeas ad

475 Judiciary grant of federal-court made jurisdiction, 1 1789, 14, Act of Stat. with the limitation § c. custody held in prisoners the writ extend to statutory by the authoriza- original United States. The It tion did not substantive reach of the writ. define the merely stated that the courts of the United States “shall power writs of . . corpus have to . . . habeas . issue Ibid. The of the writ in accord- scope courts defined inquiry ance with the common law and limited it to an as jurisdiction sentencing g., of the tribunal. e. See, parte Watkins, J.). Ex Pet. (1830) 3 193 (Marshall, C. In prisoners. 1867 Act the writ was extended to state of Feb. 14 Under 1867 5, 1867, 28, 1,§ c. Stat. 385. Act federal authorized relief in “all give courts were may any person cases where be restrained of his or her liberty any treaty of or violation of constitution, . law of the United .” But the limitation of States . . jurisdiction of the corpus consideration g., jurisdiction sentencing of the court e. persisted. See'; Wood, Rahrer, In re (1891); 140 U. 278 In re 140 U. S. Swartz, 272 (1891); (1895); Andrews v. 156 U. S. Bergemann Backer, 157 Pettibone (1895); U. S. 655 Nichols, (1906). although the con- U. S. And, cept “jurisdiction” of subjected was to considerable strain scope this expanded,7 substantive the writ was dum, parte Bollman, Writ.” Ex known as the 4 Cranch “Great (1807) J.). (Marshall, C. was, Prior to practical effect, appellate 1889 there no review possibility Supreme federal criminal cases. The Court review opinion certificate of division in the circuit court was remote practice single because of judges’ holding district circuit court. Bator, Mishkin, P. Shapiro, Wechsler, See P. E>. & H. Hart & Wech- System (2d sler’s The Federal and the Courts Federal 1539-1540 ed. 1973); Landis, F. Frankfurter J.& Supreme Business 31-32, 79-80, Court and n. 107 naturally developed Pressure expansion scope of habeas to reach otherwise 476

expansion was limited to a few classes cases8 until Mangum, Frank v. 237 U. in 1915. In 309, S. Frank, prisoner had claimed the state courts that the proceedings which resulted his conviction for mur- der had been dominated a mob. After the State Su- preme rejected Court his Frank contentions, unsuccess- fully sought habeas corpus relief in the Federal District Court. This Court affirmed the denial of relief because Frank’s federal claims had been compe- considered tent and unbiased state tribunal. recognized, The Court however, that if a corpus court found that State had provide failed to adequate process” “corrective for the full litigation and fair of federal claims, whether or not “jurisdictional,” the court inquire could into the merits to determine Id,., whether a detention was lawful. at 333-336.

In the landmark Allen, decision in Brown 344 U. v. 443, 482-487 scope (1953), expanded the writ was still In further.9 companion case and its case, Dan Allen, iels v. prisoners applied for federal habeas claiming relief the trial had erred courts involving parte rights. unreviewable decisions See Ex fundamental Siebold, 371, 100 (1880); Bator, Finality U. S. 376-377 in Criminal Law and Corpus Federal Prisoners, Habeas For State 76 L. Harv. 441, 473, Rev. (1963). and n. 75 expansion primarily occurred regard (i) with convic assertedly tions based on g., parte e. Ex statutes, unconstitutional Siebold, supra, (ii) upon detentions based allegedly illegal an g., parte e. sentence, Ex Lange, (1874). Bator, 18 Wall. 163 See supra, 7,n. at 465-474. 9There has disagreement been among scholars as to whether the in Brown v. Allen was foreshadowed by the Court’s decision result in Moore Dempsey, 261 U. S. 86 Compare Hart, Fore word: The Time Chart of Justices, 84, Harv. L. Rev. (1959); Reitz, Federal Corpus; Habeas Impact of an Abortive State Proceeding, 74 L. 1315, Harv. Rev. (1961), 1328-1329 Bator, with supra, n. Fay Noia, 488-491. See also U. S. id., at 457-460 (Harlan, J., dissenting). (1963); n. 30 in failing quash their indictments alleged due to grand discrimination jurors the selection Brown, ruling certain admissible. In confessions oil di- rejected court of State had these claims highest Brown, 2d 99, State v. 233 N. C. 63 E. appeal, 202, rect S. 943 certiorari, and this Court had denied 341 U. S. cor- adequacy the state (1951). Despite apparent of the denial of the writ process, rective Court reviewed to a corpus of and held that Brown was entitled habeas claims, full of these constitutional reconsideration includ- in the District hearing if Federal ing, appropriate, a Daniels, Court Supreme Court. In the State however, because appeal direct review had refused to consider the held that filed time. This papers were out of Court rested on a reasonable judgment since the state-court a procedural rules, legitimate application State’s his direct review of ground that would have barred lacked the District Court Court, federal claims this S., 344 U. authority corpus relief. grant habeas See at 486. 458, of collateral re-examination

This final barrier to broad corpus pro- convictions in federal habeas state criminal 391 Noia, U. S. Fay was 372 ceedings removed convicted codefendants had been (1963) .10 Noia two 10 has been Despite expansion scope writ, there respect to nonconstitutional change no in the established rule with counterpart, 28 corpus and its of habeas federal claims. writ appeal.” 2255, do for an “will not be allowed to service U. S. C. § Large, reason, 174, (1947). non- Sunal 332 U. 178 For this appeal, but been raised on claims that could have Id., at proceedings. not, may not be in collateral were asserted States, 345-346, v. United and n. 15 Davis 178-179; U. S. claims not have (1974). those that could Even nonconstitutional appeal direct can be raised on review asserted on collateral been “ in which alleged if error 'a fundamental defect constituted ” id., miscarriage justice,’ herently complete results States, quoting Hill v. United 368 U. S. felony against murder. The sole evidence each de- signed

fendant codefendants, was confession. Noia’s but not Noia Al- appealed their convictions. himself, though appeals subsequent their unsuccessful, were state proceedings they able to were establish their confessions had been coerced their convictions there- procured fore In violation the Constitution. a sub- sequent corpus it stipu- was proceeding, lated that Noia’s also confession had been but coerced, the District Court in holding followed Daniels that Noia’s appeal failure to barred habeas review. See United Fay, (SDNY States v. F. Supp. 222, 1960). The Appeals Court of reversed, ordering that Noia’s conviction be aside he set and that be released custody from trial granted. that a new This Court grant affirmed the of writ, narrowly restricting in may circumstances which a federal court refuse to consider the merits federal constitutional claims11

During period in scope which the substantive was writ the Court expanded, did consider exceptions respect whether to full review with might exist 11 construing broadly power In a federal district court to petition consider presented constitutional claims in a writ of habeas corpus, Fay equitable the Court in also reaffirmed the nature of the writ, noting implicit statutory that in the “[discretion command judge 'dispose . justice require.’ . . matter of the as law and 28 S., S. recently, U. C. 372 at 438. U. More in Francis §2243.” Henderson, v. 425 (1976), holding U. S. prisoner 536 that a state who failed to malee timely challenge composition to the of the grand jury that bring indicted him challenge post- cannot such a in a conviction corpus proceeding federal habeas a claim absent of actual prejudice, emphasized: we

“This long recognized Court has in some circumstances con- comity siderations of orderly and concerns for the administration of justice require criminal a federal court forgo to the exercise of its power. Fay Noia, See v. 391, 372 U. S. 425-426.” Id., at 539.

479 claims. Prior particular to of constitutional categories United States, 394 Court’s decision Kaufman majority of the S. a substantial however, U. (1969), Appeals Federal Courts of had concluded that collateral inappropriate claims review search-and-seizure was C. prisoners motions filed federal under 28 U. S. postconviction procedure the modem available § prisoners corpus.12 lieu of habeas primary in support rationale advanced of those decisions was that Fourth different in Amendment violations are rights kind from Fifth or denials of Sixth Amendment illegal “impugn that claims of search and seizure do not challenge the integrity fact-finding process inherently evidence as unreliable; rather, the exclusion de- illegally simply prophylactic seized evidence is vice vio- generally intended deter Fourth Amendment lations law enforcement officers.” 394 at 224. S.,U. States, Thornton v. United App. See 125 U. D. C. F. 2d 822 rejected this rationale and held that search- Kaufman cognizable proceedings. § and-seizure claims are remedy The Court noted that “the federal habeas ex- unconstitutionally tends to prisoners alleging obtained evidence was admitted against trial,” them at g., DeForte, e. Mancusi S., citing,

12Compare, g., Re, e. States v. United (CA2), 372 2d 641 cert. F. Jenkins, denied, (1967); United 388 912 States S. v. 281 2d U. F. (CA3 1960); States, Eisner v. United 193 (CA6 1965) ; 351 F. 55 2d De States, Welles v. United (CA7), denied, 372 2dF. 388 67 cert States, (1967); Williams v. United U. 919 (CA9 S. 307 F. 2d 366 States, 1962); Armstead v. United (CA5 with, 318 2d 1963), 725 F. g., e. United Sutton, States v. (CA4 Gaitan v. 1963); 321 2d 221 F. States, United 317 F. 2d 494 (CA10 1963). See also Thornton v. States, United App. (1966) 125 U. S. D. C. 368 2d 822 F. (search-and-seizure cognizable claims not special under 2255 absent § circumstances). 480 LaVallee, U. 234 (1968); 364 391 S.

U. S. Carafas statutory construc and as a matter of (1968), concluded, tion, restricting there no for “access was basis federal prisoners illegal with search-and-seizure claims placing to federal while no similar remedies, collateral restriction on state 394 at 226. prisoners,” S., access U. expressed in recent been Although years the view has scope the Court should re-examine the substantive of jurisdiction federal habeas limit and collateral review of “solely of question search-and-seizure claims to the petitioner whether the provided oppor a fair was tunity adjudicated to raise and question have the courts,” Schneckloth v. 412 U. S. 250 Bustamonte, (1973) (Powell, J., concurring),13 the without Court, discussion consideration of the has continued issue, accept jurisdiction raising in cases such claims. See v. Newsome, 420 U. (1975); Cady Lefkowitz Dombrowski, Lewis, S. 433 U. Cardwell v. (1973); (1974) U. S. 583 (plurality opinion).14 discussion scope of the Kaufman corpus habeas on rests the view that the effectua- tion of the Fourth Amendment, applied the States through the Fourteenth Amendment, requires grant- ing of corpus relief a prisoner when has been con-

13See, g., Friendly, e. Is Innocence Irrelevant? Collateral Attack Judgments, on Criminal 38 U. CM. L. Rev. 14In Newsome the Court focused on the issue whether a state plea guilty defendant’s waives federal habeas review where state law does not plea foreclose review of appeal, on direct and did not consider scope the substantive writ. See 420 S., Similarly, at Cady 287 n. 4. question in Cardwell and considered presented petition here was not in the certiorari, granted neither case was relief basis aof search-and- seizure claim. In plurality expressly Cardwell the noted that it was addressing scope issue substantive writ. See S.,U. 12. a.

481 victed in state court on the basis of in evidence obtained illegal an search or seizure since those Amendments were Ohio, held in Mapp v. 367 require U. 643 (1961), S. exclusion of such evidence at trial and reversal convic- of tion upon direct review.15 Until not these cases we have had fully occasion validity to consider the this view. g., e. Schneckloth See, v. supra, 38; at 249 n. Bustamonte, Cardwell Lewis, v. supra, Upon at 12. 596, n. examination, we in conclude, light of the nature and purpose of the Fourth exclusionary rule, Amendment this is unjustified.16 view We hold, therefore, 15As Mr. dissent, S., Justice Black commented in at U. majority justify made no effort in its result Kaufman light of long-recognized exclusionary purpose deterrent of the Instead, rule. prior the Court relied on a series of as im cases plicitly establishing proposition that search-and-seizure claims cognizable are corpus proceedings. federal habeas See Mancusi DeForte, v. (1968); LaValee, v. 391 U. S. Carafas (1968); only Warden Hayden, v. 387 U. S. 294 But in Mancusi did this Court order habeas relief on the basis of claim, case, Warden, search-and-seizure and in that as well as in the issue scope of the presented substantive writ was not to the petition Court in the Moreover, for writ of certiorari. other dissent, “numerous occasions” cited Mr. Justice BreNNAN’s post, 518-519, at in which the accepted jurisdiction Court has over collateral prisoners attacks raising Amendment Fourth claims, Whiteley one Warden, (1971)— 401 U. S. 560 case — granted was relief Whiteley, on that basis. And as in Man- cusi, the issue of the scope substantive presented the writ was not petition in the emphasized by for certiorari. Black, As Mr. Justice only in exceptional the most cases will we consider issues not raised petition. S., in the 394 U. 7. and n. 16The issue in scope was the of 2255. Our decision § Kaufman today rejects the concerning dictum in applicability Kaufman exclusionary of the rule in federal habeas review state- court pursuant decisions application 2254. To the extent the § rely rule did upon super Kaufman visory role of this courts, Court over the lower federal Elkins cf.

where provided opportunity State has an for full and .the fair of a Fourth litigation Amendment the Con- claim, stitution does not require prisoner granted a.state corpus federal habeas ground relief on the that evidence obtained an unconstitutional search or in- seizure was troduced at his trial.17

Ill The Fourth Amendment assures the of the “right people to be in their secure persons, houses, papers, against effects, unreasonable searches and seizures.” The primarily Amendment was a reaction to the associ- evils ated with the general use the warrant in England and Texas, writs of assistance v. Colonies, Stanford 379 481-485 (1965); Frank v. 476, U. S. 359 Maryland, U. S. 363-365 and was protect intended to 360, (1959), the “sanctity of a man’s privacies home and the of life,” Boyd v. United 116 States, 630 from (1886), searches under general unchecked authority.18

The exclusionary rule was a judicially created means of effectuating rights by secured the Fourth Amend- ment. Prior to the Court’s decisions in Weeks v. United States, 232 U. S. 383 States, and Gouled v. United (1914), 255 U. S. 298 (1921), there existed no barrier to the introduction in criminal trials of evidence obtained in violation of the York, Amendment. See Adams New States, United (1960), U. S. 206 fra, see the rationale in application for its rejected. that context is also unnecessary find it We to consider the other concerning issues rule, statutory or the scope of the habeas statute, parties. raised include, principally, These whether in purpose view of the rule, of the it applied per should be on a se regard basis without to the nature of the constitutional claim or police circumstances of the action. generally See Landynski, J. Search and Supreme Seizure and the (1966); Lasson, Court History N. Development Fourth Amendment to the United (1937). States Constitution Weeks the Court held that In (1904).19 U. S. 585 petition the defendant could before trial for the return property secured an search or seizure con through illegal In Gouled ducted federal held authorities. Court broadly that such evidence could not be introduced in a Hayden, See Warden prosecution. 387 U. S. Co. also Silverthorne Lumber 304-305 See States, v. United (fruits 251 U. S. 385 (1920) illegally years after Weeks Thirty-five seized evidence). Colorado, Court held in v. 338 U. 25S. (1949), Wolf right arbitrary that the to free from intrusion police protected by is Fourth Amendment “implicit concept liberty’ 'the of ordered as such enforceable against through the States the [Four teenth Id., Due Process Clause.” at 27-28. Amendment] The Court concluded, the Weeks exclu however, sionary rule would imposed upon not be States ingredient “an essential right.” 338 atS.,U. [that] 29. The -full force of subsequent was eroded in Wolf States, see Elkins v. United decisions, 206 364 S.U. States, Rea United (1960); 214 (1956), 350 U. S. and a little more than decade later the rule was applicable held in Mapp to the States 367 v. Ohio, U. 643 (1961). S.

19 lay early Boyd The roots of the decision, Weeks decision in an States, v. United (1886), 116 U. 616 S. where the Court held that compulsory production person’s private papers of a books and against for introduction him at trial violated the Fifth Fourth and Boyd, however, severely Amendments. had been in Adams v. limited York, Court, New emphasizing where the un the “law held Boyd] virtually compelled [in the defendant to furnish testimony against himself,” S., adhered common-law rule inquire, that a trial court must not on Fourth grounds, Amendment into the competent method which otherwise acquired. See, evidence g., was e. Dana, Commonwealth v. 43 Mass. Decisions prior to Mapp advanced principal two rea- application sons for rule federal trials. The Elkins, Court in example, the context of special its supervisory role over the lower federal referred courts, “imperative judicial integrity,” suggesting that exclusion illegally seized prevents evidence contami- judicial nation of process. S.,U. at 222.20 But even in that context a pragmatic ground more was emphasized:

“The rule is calculated to repair. prevent, purpose Its is to deter —to compel respect for the constitutional guaranty in the effectively avail- way by able removing the incentive to disregard — Id., it.” at 217. Mapp majority justified application of the rule

to the States on several grounds,21 but principally relied upon the belief that exclusion would deter future unlaw- police ful conduct. 367 U. atS., 658. Terry Ohio, See 392 U. Weeks v. United (1968); 12-13

States, 383, 391-392, 232 U. States, (1914); S. Olmstead v. United 394 277 438, (1928) U. S. (Holmes, 470 J., dissenting); id., at 484 (Brandéis, J., dissenting). 21 S., See 367 (prevention U. at 656 of introduction of evidence where introduction is “tantamount” to a id., confession); coerced at (deterrence 658 of Fourth Amendment violations); id., (pres at 659 judicial ervation of integrity). Only adopted four Justices the view that the Fourth Amendment requires itself the exclusion of unconstitutionally seized evidence in id., id., criminal trials. 656; See (Douglas, J., at 666 con- curring). Mr. Justice Black adhered to his view that the Fourth Amendment, standing alone, sufficient, was not Colorado, see v. Wolf 25, (1949) 338 U. S. (concurring 39 opinion), that, but concluded when the Fourth conjunction Amendment is considered in with the Fifth against Amendment compelled ban self-incrimination, a consti- emerges tutional basis requiring for S., exclusion. 367 U. at 661 (concurring opinion). 19, supra. See n.

485 Although our decisions often have alluded to “imperative judicial g., e. United States integrity,” Peltier, they 422 U. S. 536-539 demon- (1975), strate the limited in justification role of this the de- apply particular termination whether to rule in Logically justification context.22 extended this would require unconstitutionally that courts exclude seized despite objection defendant, evidence lack of or even his Henry Mississippi, over assent. Cf. (1965). 379 U. It require S. 443 also would abandon- may ment of standing object limitations on who of unconstitutionally introduction evidence, seized Alderman States, v. United 394 U. S. 165 (1969), from proposition judicial retreat proceedings not person need when abate the defendant’s is unconsti- tutionally seized, Pugh, Gerstein v. S. 119 U. Collins, (1975); Frisbie v. 519 (1952). Simi- larly, integrity the interest in promoting judicial does prevent the use illegally grand seized evidence jury Calandra, 414 proceedings. United States v. S.U. (1974). Nor it require does the trial court exclude such evidence from impeachment use defendant, though even its is certain to introduction result conviction some United cases. Walder v. States, 347 62 (1954). teaching U. S. of these cases is clear. While must be con- courts, ever course, cerned with judicial preserving integrity process, this justifica- concern limited force as a has probative tion for highly the exclusion of evidence.23 22 Monaghan, Law, See Foreword: Constitutional Common 1,- Harv. L. Rev. and n. 33 5— recognized Term, judicial As we integrity last “not offended reasonably if good law enforcement officials believed faith that their conduct was accordance with the law even if decisions sub sequent to the search seizure have held that type conduct of the by engaged law permitted enforcement officials is not 486 justification this becomes where

The force of minimal prisoner relief is who sought federal habeas for full previously opportunity been afforded the has fair consideration of his claim at search-and-seizure trial and direct review. primary justification exclusionary for the rule police

then is the deterrence of conduct that violates Post-Mapp rights. Fourth Amendment decisions have established that is not personal rule right. It is not injury calculated to redress the to the privacy of victim of any the search or seizure, “ Walker, eparation comes too late.” Linkletter v. [r] (1965). U. S. 618, Instead,

“the rule judicially is a remedy designed created safeguard Fourth Amendment rights generally United through its deterrent effect . States v. . . .” Calandra, supra, at 348. United Peltier, supra, States v.

Accord, 538-539; Terry Ohio, v. 392 U. S. (1968); Linkletter 28-29 Walker, supra, at 636-637; Tehan United States ex Shott, rel. U. S.

Mapp involved the exclusionary enforcement of the rule at state trials and on direct review. The decision Kaufman, as noted above, premised on the view that implementation of the Fourth requires Amendment also the consideration of upon search-and-seizure claims col- lateral review of state despite convictions. But the broad deterrent purpose of it has never rule, interpreted been proscribe illegally introduction of seized evidence in proceedings against all all persons. As in any the case of remedial application “the device, the rule has been restricted to those areas where its reme- Constitution.” United States v. Peltier, (1975) 422 U. omitted). (emphasis objectives dial are thought most efficaciously served.” United Calandra, States v. supra, at 348.24 Thus, our refusal extend the exclusionary grand jury rule to proceedings was based on a balancing potential injury to the historic role and function of grand jury by such extension against potential contribution to the effectuation of the Fourth Amendment through de- police terrence of misconduct:

“Any incremental deterrent effect might which achieved extending the rule grand jury pro- ceedings is uncertain at best. Whatever deterrence of police may misconduct result from the exclusion of illegally seized from evidence criminal it trials, is unrealistic to assume that application of the grand rule to jury proceedings significantly would further that goal. Such an extension would deter only police investigation consciously directed toward discovery solely evidence grand for use in a jury investigation. . . . We therefore decline to embrace a view that would speculative achieve a undoubtedly minimal advance in the deterrence of police misconduct the expense of substantially 24As Professor Amsterdam has observed: unsupportable reparation “The rule is compensatory dispen injured sation to the criminal; justification its sole rational is the experience indispensability of its fexert[ing] general legal pressures to secure obedience to the Fourth part Amendment on the of . . . law-enforcing officers.’ function, As it serves this the rule is a needed, grud[g]ingly taken, but medicament; no more should be swallowed than needed to many combat disease. Granted that so go criminals must free as will deter the from blundering, constables pursuance policy of this beyond of liberation necessity the confines of gratuitous inflicts public harm on Search, Seizure, interest . . . .” and Section Comment, 2255: A 112 U. Pa. L. Rev. 388-389 (1964) (footnotes omitted). grand jury.”

impeding S., role of (footnote omitted). at 351-352 analysis pragmatic rule’s same particular context was evident earlier usefulness supra, Walder v. United in the where Court States, unlawfully permitted the Government to use seized evi- impeach credibility of dence to the a defendant who had broadly in Court held, testified his own defense. The in safeguarded by that the interests the exclusion- effect, ary by in that outweighed rule context were the need to prevent and to perjury assure the the trial integrity in Walder process. judgment clearly The most revealed policies the behind the rule exclusionary are not they absolute. must be Rather, light evaluated policies. In competing public the interest case, determination truth at trial25 was deemed to out- weigh the incremental contribution might have been protection to the made of Fourth Amendment values application of the rule. balancing process

The at work in these cases also expression finds standing requirement. the Standing to invoke the exclusionary rule has been found to exist only when the attempts Government illegally to use ob- tained evidence to incriminate the victim of the illegal Brown States, United search. 223 (1973); U. S. States, Alderman United 394 U. (1969); Wong S. 165 Sun States, v. United (1963). U. S. 491-492 States, See Jones v. United 362 U. standing

The requirement premised on the view that the “additional benefits extending . . . the rule” to defendants other than victim of the search or seizure outweighed by are “further upon encroachment generally Frankel, See M. The Umpireal Search Truth —An For Benjamin View, 31st Annual Lecture, N. Cardozo Association of the City York, Bar of the of New Dec. 1974. public interest prosecuting of crime and those accused having them on acquitted or convicted the basis of all the exposes evidence which Alderman truth." v. United States, supra, at 174-175.26

IV presented by now these specific question We turn to the Respondents cases. Amend- violations of Fourth allege ment them the Fourteenth rights guaranteed through question prisoners— Amendment. The is whether state who have been for full fair opportunity afforded rule upon exclusionary consideration of their reliance with trial respect seized evidence the state courts at may on again direct claim invoke their review — is to found review. answer by weighing utility against rule the costs of Fourth extending it to collateral review Amendment claims. exclusionary The costs of at applying the rule even 27

trial and on are focus direct review well known: the 26 question, addressing the hold whether search-and-seizure Cases ings applied retroactively be the should also have focused on by consistently purpose exclusionary rule, deterrent with served the balancing analysis the applied the con generally in rule States, 253-254, text. See Desist v. United 244, 249-251, 394 U. S. (1969); (1965). n. Walker, Linkletter v. 618, and 21 381 U. S. 636-637 Alaska, Fuller v. Cf. 80, (1968). 393 U. 81 The S. “attenuation- of-t-he-taint” balancing approach. doctrine also is consistent with the Illinois, Wong See Brown v. Sun United (1975); 422 U. S. 590 v. States, supra, S., Amsterdam, 491-492; 24, 371 U. at n. at 389-390. 27See, g., California, e. Irvine Bivens 128, (1954); 347 S. U. 136 v. Six Unknown Agents, Fed. Narcotics 388, (1971) 403 U. 411 S. People Defore, J., dissenting); 13, C. (Burger, 242 Y. 150 N. (1926) (Cardozo, J.); 2184a, N. E. Wigmore, pp. 585 8 J. Evidence § 1961); Amsterdam, supra, (McNaughton 51-52 24, ed. 388-391; n. at Friendly, supra, Oaks, 161; Studying Exclusionary n. at the Rule Seizure, (1970), Search 37 U. Chi. L. 736-754 Rev. participants and the attention the therein, of the trial, guilt or inno- question are from the ultimate diverted a crimi- should the central concern in cence that be Moreover, sought evidence proceeding.28 physical nal is often the most typically reliable and excluded probative or innocence bearing guilt information emphasized in As Mr. Black defendant. Justice his dissent Kaufman:

“A claim of search and under the illegal seizure crucially Fourth from many Amendment different ordinarily other constitutional the evidence rights; seized can in no have way been rendered untrust- worthy by the means its indeed seizure and often beyond virtually any this evidence alone establishes shadow of a doubt is guilty.” defendant 237. S., Application of the rule thus deflects the truthfinding process and often guilty. frees the disparity par- The ticular cases between error by police committed officer and the windfall afforded guilty by defendant application of the contrary rule is to the idea of propor- tionality that is essential to the concept of justice.29 Thus, therein; sources Paulsen, Exclusionary cited Rule and Mis- Police, conduct 52 J. (1961); Crim. C. & L. P. Wright, Must the Criminal Free If Go Blunders?, Constable Tex. L. Rev. 736 See address Justice Schaefer of Supreme Illinois, Court of Adversary System Is the Working Optimal Fashion?, delivered at the National Conference on the Popular Causes of Dissatisfaction With the Justice, Administration pp. 8-9, Apr. of 8, 1976; cf. Frankel, supra, n. 25. 29Many the proposals of for modification scope of the of the recognize rule implicitly at least the role of propor tionality in the justice system criminal potential and the value of establishing a direct relationship between the nature of the vio lation and the decision whether to invoke the rule. ALI, See A thought police is to deter unlawful although rule activity part through nurturing respect of Fourth if applied indiscriminately Amendment values, may it opposite well have the effect of dis- generating respect for the law and administration of justice.30 These long-recognized persist costs rule when a is conviction to be overturned on collat- sought criminal eral on ground review the that a claim search-and-seizure rejected by erroneously was or two tiers of state more courts.31 Pre-arraignment Procedure, 290.2, pp.

Model Code of 181-183 § (“substantial (1975) violations”); Friendly, H. Benchmarks 260-262 (1967) (even trial, exclusion should be limited to fruit “the of activity intentionally flagrantly supra, illegal”); Wigmore, n. supra. at 52-53. n. See context, In a different Dallin H. Oaks has observed: criticizing, “I am procedures, not our concern with preoccu- but our may pation, sight procedures which we lose of the fact that our goals legal system. goals are not the ultimate of our truth Our are justice, and procedures and but are means to these . . ends. . justice values, “Truth and are ultimate so understood our people, legal worthy and profession and law will of public respect loyalty if we allow our attention to be diverted goals.” Ethics, Morality from Responsibility, these and Professional 1975 B. U.Y. L. Rev. 596. corpus, especially Resort to for purposes other than to person assure that no innocent suffers an unconstitutional loss lib erty, system important results serious intrusions values to our government. They “(i) include the most effective utilization of judicial resources, (ii) necessity finality limited in criminal trials, (iii) the minimization of friction between our federal and state systems justice, (iv) the maintenance of the constitutional upon balance which the doctrine federalism founded.” Bustamonte, J., S., Schneckloth 412 U. at 259 con (Powell, curring). States, S., See also United at 231 Kaufman Friendly, (Black, J., dissenting); supra, 13. n. corpus relief, recognizing

We nevertheless afford broad habeas society safeguard against the need in a free for an additional 492 by police

Evidence obtained officers violation Fourth hope Amendment is excluded at in the trial frequency Despite future violations will decrease. the absence of supportive empirical evidence,32 we have assumed that the immediate effect of exclusion will be to discourage law violating enforcement officials from Fourth Amendment removing incentive dis- it. regard More long over the this importantly, term, demonstration society that our attaches serious conse- quences to violation of rights is thought to encourage those who formulate law enforcement policies, and the officers who implement to incor- them, porate Fourth Amendment ideals into their value system.33 compelling an innocent man to suffer an unconstitutional loss of

liberty. Fay The Court v. Noia described habeas remedy as a society for “whatever deems to be intolerable re- straints,” recognized those to whom the writ should be granted persons society “are whom grievously wronged.” has 372 S., 401, U. at 441. typical But in the case of a Fourth Amendment claim, asserted on attack, collateral usually a convicted defendant is asking society to redetermine an issue that bearing has no on the justice basic of his incarceration. 32 efficacy of the long subject has rule been the sharp recently, scholarly empirical debate. Until research was States, unavailable. Elkins v. S., United at And, the empirical evidence derived from recent research is still Compare, g., Oaks, supra, inconclusive. e. 27; Spiotto, n. Search Empirical Study Exclusionary Seizure: An of the Rule and Its Alternatives, Legal (1973), J. with, g., Canon, Studies 243 e. Is Exclusionary Failing Health?, Rule in an,d Some New Data Against Precipitous Plea Conclusion, Ky. (1974). L. J. 681 Janis, See United ante, States 450-452, 22; Amsterdam, n. Per spectives on Amendment, the Fourth 58 Minn. L. Rev. 475 n. (1974); Comment, Empirical On the Limitations of Exclusionary Evaluations of the Critique Rule: A Spiotto Research and United Calandra, States v. 69 Nw. U. L. Rev. 740 33 Oaks, See supra, n. at 756. view sup- We adhere to the that considerations these port exclusionary of implementation rule at trial and its on direct state-court con- appeal enforcement of victions. But if of the the additional contribution, any, consideration of pris- of search-and-seizure claims state oners on review collateral is small in to the relation costs. To be each in which is case such claim considered sure, may add marginally pro- an of the values awareness tected the Fourth is no There reason to Amendment. believe, that the overall effect of however, educative the exclusionary appreciably rule would be diminished if claims search-and-seizure could not be raised in fed- eral habeas corpus review of state convictions.34 Nor is there any reason to assume that disincentive specific already created the risk of of exclusion evidence at trial or the reversal convictions on direct review would be if there enhanced were the further risk that a conviction obtained state court and affirmed on direct review proceed- be in collateral might overturned ings years often after occurring the incarceration of the defendant. The view that of Fourth deterrence Amendment violations would rests on be furthered dubious assumption that law enforcement authorities would fear that might federal habeas review reveal flaws in a search or that seizure went trial and undetected on appeal.35 if one rationally Even could assume that time, applied “As the rule is after it time seems efficacy point that its stage deterrent at some reaches a of dimin ishing returns, beyond point application is its continued a public Amsterdam, supra, nuisance.” n. at 389. policy arguments respondents support The marshal necessary corpus federal habeas view review effectuate Amendment the Fourth stem from basic mistrust of adjudication competent the state for the courts as fair forums rights. argument is that state courts through cannot be trusted to effectuate Fourth Amendment values effect would be some additional incremental deterrent resulting present cases, isolated advance goal rights Fourth Amendment legitimate furthering outweighed by acknowledged be costs to other would system justice. values vital to a rational criminal pro In sum, we conclude that where the State has opportunity litigation vided an for full and fair of a may prisoner Amendment claim,36 Fourth granted ground federal habeas relief on the that evidence obtained an unconstitutional search seizure at In was introduced his trial.37 this context the application rule, oversight jurisdiction fair of of the and the this inadequate safeguard. principal Court on certiorari is an ra- respective emphasizes tionale for this the in the view broad differences settings judges judges institutional within which federal and state operate. Despite differences in the institutional environment and unsympathetic attitude to federal constitutional claims of some state judges years past, unwilling we are to assume there now general exists a of appropriate sensitivity rights lack to constitutional in the appellate trial of courts several States. State courts, the courts, obligation like federal have safeguard per- a constitutional uphold sonal liberties and Lessee, Martin federal law. v. Hunter’s (1816). Wheat. 341-344 Moreover, argument the judges expert federal applying are more federal constitutional especially unpersuasive is law in the of context search-and-seizure claims, they since daily are dealt with on a basis trial judges systems. sum, level in both In there is “no reason intrinsic why the fact that man a judge a is should make him more competent, or conscientious, or respect learned with to the [consid- eration of Fourth neighbor Amendment than his in the state claims] Bator, supra, courthouse.” n. at 509. Sain, Cf. Townsend v. 372 U. S. 293 37Mr. Justice Brennan’s opin dissent characterizes the Court’s laying ion as groundwork for “drastic a withdrawal of federal jurisdiction, habeas if grounds , not for all .. . then at least [for many] Post, at variously 517. It opinion refers to our as a “novel reinterpretation statutes,” post, of the 515; habeas at as a “harbinger of future eviscerations statutes,” post, of the habeas at 516; “rewriting] jurisdictional Congress’ . statutes . . and [bar- exclusionary of if to the effec- contribution rule, any, tuation of the Fourth Amendment is minimal and the persist substantial societal costs rule application special with force.38

ring] prisoners access to federal courts with constitutional majority” Court, post, 522; claims distasteful to a at and as “denigration guarantees appall must citizens constitutional [that] taught judicial respect” post, 523. expect rights, at constitutional respect, hyperbole dissenting opinion all of the is mis

With today scope directed. Our decision is concerned with corpus authority litigating statute as constitutional claims generally. exclusionary judicially reaffirm is a We do that the rule remedy personal right, supra, created rather than a see utility at emphasize sought and we the minimal of the rule when applied to be to Fourth Amendment claims a habeas proceeding. context, recognized As Mr. “or Justice Black this dinarily way seized can in no have been rendered un evidence trustworthy beyond . . . and indeed often . . alone establishes virtu . ally any guilty.” shadow of a doubt that the defendant Kaufman States, S., sum, (dissenting opinion). v. United In we hold apply that a federal court need not rule showing on habeas review of a Fourth Amendment claim absent prisoner opportunity the state was denied an for a full and litigation fair of that claim at trial and on direct Our review. decision jurisdiction does not mean that the federal court lacks claim, over such a application but that the of the rule is lim ited to in cases which there has showing been both such and a Fourth Amendment violation. supra. 31, n. Respondents they See peti contend that filed since corpus tions for federal seeking rather than direct review through this application Court an certiorari, for a writ of and since apply any the time passed, to for certiorari has now diminution ability their corpus to obtain habeas ground relief on the evidence ob in an unconstitutional search or seizure tained was introduced at their trials prospective. England should be Cf. v. Louisiana State Board of Examiners, Medical 375 U. S. reject 422-423 these We Although required contentions. to do so under prior the Court’s decisions, Fay Noia, see (1963), respondents were, 372 U. S. 391 course, timely of petition free file prior seeking for certiorari federal habeas relief.

Accordingly, judgments Appeals Courts of are

Reversed. Mr. Chief Justice Burger, concurring.

I concur in the opinion. By Court’s way of dictum, and somewhat hesitantly, Court notes that the hold- ing in this case leaves undisturbed exclusionary rule applied to criminal trials. For my reasons stated in dissent Bivens v. Six Unknown Fed. Agents, Narcotics U. S. it (1971), seems clear to me that the exclusionary rule has been operative long enough to demonstrate its flaws. The time modify has come its reach, even if it is retained for a small and limited category of cases.

Over the years, imposed strains reality, terms society the costs to miscarriages the bizarre justice that experienced have been because the exclu- sion of reliable evidence when the blunders,” “constable have led the Court to vacillate as to the rationale for deliberate exclusion of truth from the factfinding process. The rhetoric has varied with the rationale to the point where the rule has become a doctrinaire result in search of validating reasons.

In evaluating rule, important it is to bear mind exactly accomplishes. what the rule Its function is simple exclusion of truth from the fact- —the finding process. Cf. M. The Frankel, Search Truth— An Umpireal View, Benjamin 31st Annual N. Cardozo Lecture, Association of City the Bar of the York, New 1974. Dec. operation the rule is therefore un- like that of the Fifth protection Amendment’s against compelled A produced self-incrimination. confession af- ter intimidating interrogation or coercive is inherently If a suspect’s dubious. will has been overborne, a cloud over his hangs admissions; custodial the exclusion-ohsuch essentially reliability. statements is based on their lack of This is not the case as to reliable evidence —a a pistol, packet body or of a heroin, money, counterfeit may judicially murder victim —which declared to be reliability the result of an “unreasonable” search. The beyond of such evidence is value question; probative its is certain.

This remarkable situation —one unknown to the com- mon-law for tradition —had its in a case genesis calling protection private papers against governmental States, Boyd (1886). intrusions. v. United 116 U. S. States, also Weeks See v. United 232 U.

In Boyd, the Court held private papers were inad- missible because of the Government’s violation Weeks, Fourth and Fifth Amendments. In the Court private excluded letters seized from the accused’s home by a federal official acting without a warrant. In both cases, seeking the Court had a clear vision what it was protect. in Boyd What the Court said shows how strayed far we have from the original path: “The search for and seizure of stolen or forfeited goods, goods or liable to duties concealed payment totally avoid the thereof, are different things a search and seizure pri- man’s from vate papers purpose books.and for the of obtaining using information therein or of them as contained, against evidence things him. The two differ toto added.) coelo.” 116 atS., (Emphasis 623. Weeks, In emphasized the Court the Government, principles right under settled of common had no law, keep person’s private papers. The Court noted that “burglar’s the case did not proofs involve tools other guilt (Emphasis added.) . . 232 U. at 392. . .” S., From this origin, rule has been 498 entirely. It is used ex-

changed in focus now almost clusively which are to exclude from evidence articles of possessed unlawful to tools and instruments rationally thought it that the crime. Unless can be protect it to the liberties Framers considered essential people to hold that it is unlawful to possess, the which it our has then becomes clear that constitutional course a most bizarre taken tack. drastically

The changed judicial nature of concern-— protection from the or effects in one’s personal papers private to the exclusion of that which the ac- quarters, right possess cused had no to one of more the —is original incongruity recent anomalies the rule. The was the with inconsistency general proposition rule’s system “our not legal attempt justice does to do incidentally penalties to indirect means.” enforce p. J. Evidence ed. Wigmore, (McNaughten § 1961). The rule is based in the hope events appellate courtroom or chambers, long after the crucial took place, modify way acts will somehow in which policemen A conduct themselves. more less di- clumsy, imposing rect means of is difficult imagine, sanctions to particularly policeman since the issue whether did indeed run afoul the Fourth Amendment is often years resolved until after the event. “sanction” is particularly police as in 74-1222, indirect when, No. go before a who issues a warrant. Once the magistrate, literally nothing warrant there is issues, police- more the seeking comply Impos- man can do in to with law. admittedly an ing police indirect “sanction” on the officer nothing sophisticated instance less than nonsense.

Despite this anomaly, rule now rests tendency upon purported its police deter misconduct, ante, United Janis, States United p. States 433; Calandra, as we (1974), although, U. S. wholly good- long applied the rule has been know, purely technical deficiencies faith mistakes and \including generalizations, warrants. Other rhetorical “imperative judicial have not with- integrity,” analysis appraisals stood as more and more critical the g., e. operation appeared. See, Oaks, rule’s have Studying Exclusionary the Rule Search and 37 U. Chi. Seizure, (1970). Rev. 665 settled rules demonstrate L. Indeed, “judicial integrity” fatally that rationalization is flawed. the Court has refused to entertain claims First, unlawfully that evidence was seized unless claimant could press demonstrate that he had standing contention. Alderman v. United 394 U. S. 165 States, (1969). If he could albeit secured not, evidence, violation of the Fourth is admissible. Sec- Amendment, correctly one scholar has observed: ond, accept is difficult to proposition

“[I]t exclusion of improperly obtained evidence is neces- sary 'judicial integrity’ when no such is ob- rule served other common jurisdictions law such as England and whose Canada, courts are otherwise regarded judicial as models of decorum and fair- ness.” supra, at 669. Oaks, Despite its avowed deterrent proof is objective, lacking the exclusionary purely rule, judge-created device based on “hard cases,” serves the purpose of deterrence. Notwithstanding Herculean no efforts, empirical study has been able to demonstrate that the rule does in fact any have deterrent effect. In the face of dwindling sup- port for the rule some would go so far as to extend it to civil cases. United Janis, States ante, p. 433.

To vindicate the continued existence of this judge- made it is upon incumbent rule, those who seek its re- surely tention —and its extension —to demonstrate that it serves its declared purpose deterrent to show that outweigh the results the rule's costs to heavy rational Killough g., e. enforcement the criminal law. See, States, United App. D. C. U. S. 315 F. 2d rightly The burden rests upon ask those who society to ignore trustworthy of guilt, evidence at the expense setting obviously guilty free to criminals ply their trade. my

In judicial it is responsi- an abdication of view, bility to exact society purely such exorbitant costs from speculative basis of assump- unsubstantiated tions. Judge Henry Friendly has observed: authority same that empowered the Court

“[T]he supplement amendment the ex- [fourth] clusionary rule a twenty-five hundred and years after adoption, its likewise it modify allows rule as experience’ the 'lessons of may teach.” The Bill Rights of as a Code of Criminal 53 Calif. Procedure, L. Rev. 929, 952-953 Bivens,

In I suggested that, despite grave its short- the rule need not totally be abandoned until comings, some meaningful alternative could be developed pro- to tect innocent persons aggrieved by police misconduct. With passage the of it now appears con- time, tinued of presently existence as rule, implemented, development inhibits the of rational alternatives. The is quite simple: reason Incentives for1 developing new procedures or remedies will remain minimal or non- long existent so as exclusionary rule is retained in present its form.

It longer can no be assumed that other branches of government act will while judges cling to this Draconian, present discredited device its absolutist form. Legisla- unlikely tures are to create statutory or im- alternatives, officers police on errant pose direct sanctions or persons so as public treasury by way long tort actions, reap to the enor- who crimes continue commit serious exclusionary rule. benefits of the mous and undeserved And the direct beneficiaries definition coursé, of crimes. With persons guilty this rule can be none but extraordinary “remedy” this for vio- Fourth Amendment legis- inadvertent, technical, however or lations, slight, should might done, latures assume that more be nothing though exclusionary even defect of rule is grave that it offers no relief whatever to victims of overzealous police appear work who in court. The never Schaefer, Sanctity Fourteenth Amendment and of the Person, (1969). And if legislatures Nw. U. L. Rev. even were inclined to with experiment remedies, alternative they have no rule judicially assurance that created to response will be abolished or modified such even legislative I unhappy innovations. The see result, it, is that inevitably stymied by will rigid alternatives adherence on our I part exclusionary ven- rule.. ture predict overruling judicially this contrived its scope doctrine —or limiting bad-faith egregious, inspire activity conduct —would surge pro- toward viding some statutory remedy in- persons kind jured by police mistakes misconduct. opinion today Court’s eloquently some- reflects

thing of the dismal social costs occasioned the rule. Ante, at 489-491. correctly As Mr. Justice White ob- serves today his dissent, rule consti- tutes a “senseless obstacle to arriving at the truth in many Post, criminal trials.” at suggests 538. He also be substantially the rule prevent modified “so as to application its many those circumstances where the at issue seized evidence was an officer acting good-faith belief his comported conduct with exist- for this grounds law reasonable belief.” ing having and Ibid. private protect

From in the to genesis its desire papers, point exclusionary has been rule now carried potentially excluding from evidence the traditional corpus delicti kidnaping a murder or case. See People Mitchell, 39 N. Y. 2d 347 N. 2d E. Killough cert. denied, Cf. v. United States, supra. Expansion of reach of exclusion ary grim People rule has brought prophecy Cardozo’s Defore, (1926), 242 N. N. 13, 24, Y. E. nearer to fulfillment: body

“A room is and against searched law, place a murdered is found. If the of dis- man covery may not the other circumstances proved, may be insufficient to connect with the defendant the crime. in- privacy The of the home has been and may the murderer . fringed, goes free. . We . subject society dangers Legis- these until the spoken has with lature a clearer voice.” Mr. Justice Brennan, with Justice whom Mr. Mar- shall concurs, dissenting. today Court holds pro- “that where State has

vided opportunity an for full and litigation fair Fourth prisoner Amendment may not be claim, granted federal habeas relief on the ground that evidence obtained in an unconstitutional search or seizure Ante, was introduced at trial.” his sure, 494. To be my are Brethren hostile vitality the continued part parcel rule as of the Fourth prohibition Amendment’s of unreasonable searches today’s seizures, decision in Janis, United States v. ante, p. 433, confirms. But despite these cases, the veil of Fourth terminology Amendment employed by the plainly Court, any question do involve right the a defendant to have evidence from against excluded use him in his criminal trial when that evidence was seized in rights ostensibly contravention of secured1 the they Fourth and Fourteenth in- Rather, Amendments. question availability volve the of the of a federal forum federally vindicating guaranteed those To- rights. day’s holding portends substantial evisceration I corpus jurisdiction, dissent. opinion specify particular

The does not Court’s jurisdiction basis on which it denies federal habeas over of Fourth brought claims Amendment violations prisoners. holding The Court insists that its is based ante, Constitution, g., light on the e. but in see, explicit of the of 28 C. language (signifi- § U. S. say “ostensibly” 1 1 secured both because it is clear that the Court yet exclusionary rule, has to make its final frontal assault on recently holding has in the because Court moved direction of that the Fourth Amendment has no substantive content whatsoever. See, g., Martinez-Fuerte, post, e. United States v. at 567-569 J., dissenting), and cases cited therein. (Brennan, provides: Title 28 U. S. C. §2254 custody; State remedies State courts. “§2254. Court, “(a) Supreme thereof, judge, Justice a circuit application district court shall entertain an for a writ of habeas custody judgment corpus person pursuant in behalf of a to the custody ground on the that he is in a State court violation of the Constitution or laws or treaties of United States. “(b) application An for a writ of habeas in behalf of a custody pursuant judgment shall person in to the of a State court granted appears applicant unless it has exhausted not be State, in the of the or that there is the remedies available courts process or the exist- either an absence of available State corrective rendering process protect such ineffective to ence of circumstances rights prisoner. of the “(c) applicant shall not be deemed to have exhausted An State, meaning remedies available the courts within cantly I by Court), even the can not. mentioned presume that the Court intends to be to hold understood a, respondents statutory- either that of are as not, matter section, if right raise, of this he the under the law of the State to has by any question presented. procedure, available the

“(d) any proceeding In by in appli- instituted a Federal court an by person custody pur- a writ of cation for a in judgment to court, suant the of a a State after a determination hearing issue, of by on the merits a factual a made State court competent jurisdiction of in a proceeding applicant to the which agent for the and par- writ the State or an officer or thereof were ties, by finding, evidenced a opinion, written written or re- other adequate indicia, presumed correct, liable and written shall be to. be unless, applicant appear, the shall establish or it shall otherwise respondent or the admit— shall

“ (1) that the dispute merits of the factual in the were not resolved hearing; State court

“(2) factfinding procedure by that the employed the State court not adequate hearing; to a afford fair was and full “(3) adequately that the developed material facts were not at hearing; the State court

“(4) jurisdiction subject that the State court lacked the mat- of person ter or over applicant proceeding; the in the State court “(5) applicant court, the indigent was an in the State deprivation right, of his appoint failed to counsel to represent him in the proceeding; State court “(6) fair, adequate applicant full, the did a not receive hearing proceeding; in State the court or

“(7) applicant process the was otherwise of law denied due in proceeding; State the court

“(8) part or unless that of proceed- the record of the State court ing made, in which of such factual issue was the determination pertinent sufficiency a of of the evidence to determination determination, produced provided such factual is as support hereinafter, and the part Federal court consideration such of the record as a concludes that such factual determination whole fairly by supported record: evidentiary in hearing proceeding an “And the Federal proof court, made, when such due factual been determination has custody “in construction, violation of the Constitu- “ or tion laws ... of the United or that States,” 'consider- comity orderly ations of and concerns for the administra- ” ante, tion criminal justice/ 478 n. are 11,3 sufficient unless the respectively existence of one more or circumstances (1) (7), by set in paragraphs inclusive, forth numbered is shown applicant, appears, respondent, otherwise isor admitted pursuant unless provisions para- the court concludes graph (8) numbered that the proceeding, record the State court whole, fairly considered support does not such factual deter- mination, upon applicant the burden shall rest to establish convincing by evidence that the factual determination the court State was erroneous.

“(e) applicant challenges sufficiency If the the the of evidence ad- duced in proceeding support such State court to the State court’s therein, able, applicant, determination of a factual if issue made the produce part pertinent shall that a of the record to determination sufficiency of the the to support evidence such determination. If applicant, indigency the because of or other reason is unable to produce part record, produce such the then the shall such State oi part of the record and the court shall direct State to the Federal by do appropriate so order an If the directed to State official. provide part record, then pertinent cannot such the the State existing court determine under the facts and circumstances shall weight given what shall be the State court’s factual determination. to duly “(f) court, copy A of the records of State certi- official the copy fied the clerk of such to be a true and correct court finding, showing judicial opinion, or other reliable written indicia such a the court shall be admissible factual determination State proceeding.” court Federal provides: Title 28 S. C. 2243 § writ; return; hearing; Issuance of decision. “§2243. court, justice judge entertaining application

“A or an for a writ corpus of habeas forthwith an shall award the writ or issue order directing respondent why to show cause writ should not be granted, appears application it applicant unless from the that the or person is not entitled thereto. detained writ, person

“The or to order show cause shall be directed to having custody person detained. shall be returned within It this jurisdictional allow Court to rewrite statutes en- by Congress. ground

acted Neither of decision is tena- ble; simply the former is and the latter is an illogical, arrogation power solely Congress. committed to the

I Much of analysis implies respondents the Court’s are not not they entitled habeas relief because are being unconstitutionally purport- detained. Although edly adhering principle Four- the Fourth and teenth Amendments “require exclusion” of evidence ante, seized in violation of their commands, Court informs us merely has been there a “view” in our cases that “the effectuation of Fourth Amend- ment requires . . . granting relief prisoner when a has been convicted state court on the basis of evidence obtained in illegal an search or sei- Ante, . zure . .”. at 480-481.4 Applying “balancing days three good unless time, exceeding cause additional twenty days, is allowed. person

“The to whom the writ order is directed shall make a certifying return the true cause of the detention. day

“When the writ or order is returned a set shall be for hear- ing, days not more than good five after the return unless for cause additional time is allowed. application

“Unless the present only for the writ and the return person issues lawof whom to the writ is shall be re- directed quired produce hearing body at the person of the detained. applicant person may, “The oath, deny any or the detained under any of the facts set allege forth the return or other material facts. suggestions against “The return and may amended, all made it be court, leave of being before or after filed. summarily “The court shall facts, hear and determine the and dis- pose justice require.” of the matter as and law also, g., ante, (“The See e. at 486 decision in United [v. Kaufman States, (1969),] premised imple U. S. on the view that requires mentation of the Amendment Fourth also the consideration upon of search-and-seizure claims collateral review of state convic- g., ante, test,” see, 493-494, e. 487-489, 489-490, unjustified then Court concludes that this “view” is policies that the of the Fourth Amendment would be implemented exclusionary if claims to the benefits of the cognizable rule were in collateral attacks on state-court convictions.5

Understandably purport the Court must its cast holding constitutional because avoids a terms, direct confrontation with the incontrovertible facts that the habeas always statutes have heretofore con- been grant jurisdiction strued to to entertain Fourth Amend- ment claims both state and federal prisoners, Fourth principles Amendment applied have been in deci- sions on the merits numerous cases on collateral review of final convictions, legislatively and that has Congress accepted our interpretation congressional intent as to tions”); ante, (“The question at 489 answer whether Fourth [to may Amendment claims prisoners raised state in federal corpus proceedings] by weighing utility is to be found of the against extending rule the costs of it to collateral review of Fourth claims”); ante, ("[T]he Amendment at 493 any, contribution, additional if of the consideration of search-and- prisoners seizure claims of state on collateral review is small in relation costs.. . The . view that the deterrence of Fourth Amendment violations would be furthered rests on assumption the dubious law enforcement authorities would fear that federal habeas review might reveal in a flaws search or seizure that went undetected at appeal”); ante, (“In trial and on at 494-495 this context the contri- exclusionary rule, bution any, if to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application persist special force”). rule with 5To the extent the is rendering Court a holding, obviously there is no distinction between brought by claims state prisoners under 28 U. S. C. brought by those §2254 prisoners Thus, under 28 U. S. C. 2255. the Court overrules not § long line of cases concerning availability of habeas relief for prisoners, similarly but also inveterate concerning line cases availability counterpart 2255 relief prisoners. for federal § necessary scope and function of habeas In- relief. the Court

deed, explicitly reaches its result without over- ruling any plethora of our of precedents inconsistent with that result or even stare discussing principles of decisis. Rather, the Court asserts, essence, the Justices joining those prior reaching decisions the merits of Fourth simply Amendment claims overlooked the obvious problem adhering constitutional dimension to to the “view” granting collateral relief when state erroneously courts decide Fourth Amendment issues would principles effectuate the underlying that Amend- ment.6 But, balancing” shorn of the rhetoric of “interest Black, Mr. dissenting States, Justice v. United Kaufman (1969), argued light that in purposes of his view the not, rule Fourth Amendment claims should as a statutory matter construction, cognizable be on federal habeas. However, suggestion, apparently he never made the embraced today, the Court that such claims as a cannot constitutional matter jurisdiction, be though Congress entertained on habeas even fash jurisdiction part compensate ioned at least to for the inadequacies jurisdiction inherent in our certiorari on direct review. ante, Indeed, Cf. at ignore 481 n. and 490. did not Kaufman dissenting arguments; rather, Justices’ juris it noted that habeas diction, any apart police behavior, from effect on serves the inde pendent “insuring] integrity function of proceedings at and rights S., before trial where constitutional are at stake.” 394 U. infra, 225. See also argument prior at 519-522. As to the that our today “only cases do not resolve the issue because in the decided most exceptional cases petition,” will we consider issues not raised in the ante, see at 481 n. that claim is valid the extent the issue construing congressional is one of when, respect intent as to with properly power grant cases relief, within the district court’s habeas relief should nevertheless be denied as a matter of discre person against unconstitutionally tion. But to the extent a whom seized evidence admitted at hearing was trial after a full and fair custody Constitution,” not “in in violation of the there would jurisdiction no petition, 2, supra, even to entertain a habeas see n. subject-matter-jurisdiction questions — n always open and such are any stage litigation. g., and must be resolved-—at See, e.

509 it used to obscure what is at stake this is evident case, today’s attempt that decision on the Constitu- rest Ohio, long must fail 643 Mapp tion so 367 U. S. (1961), remains undisturbed. Mapp, as matter of

Under a law, a court must of an exclude evidence from the trial individual whose Fourth and Fourteenth Amendment rights directly were violated search or that seizure indirectly acquisition resulted in the of that evidence. United As Calandra, (1974), States v. 414 347 U. S. 338, reaffirmed, “evidence obtained violation of the Fourth Amendment cannot be used a criminal proceeding 7 against illegal the victim search and seizure.” When a state court admits such it com- has evidence, mitted a constitutional is and unless that error error, harmless under federal standards, g., Chapman see, e. 386 California, ineluctably U. 18S. it follows (1967), that the defendant placed custody has been “in in viola- tion of the Constitution” within comprehension 28 2254. § U. C. In it escapes toas what me short, logic support can the assertion un- that the defendant’s constitutional confinement during process obtains direct no review, matter process how long that takes,8 Louisville & Nashville Mottley, R. Co. v. (1908); S. 149 U. Fed. (h). Rule Civ. Proc. It borders on the suggest incredible to many so Justices long merely for so “assumed” the answer to such jurisdictional a basic question. S., See also noting “inadmissibility illegally seized subsequent evidence in prosecution criminal of the search victim.” 8 Only once does any the Court advert temporal distinction between direct review and possible collateral review aas reason for precluding raising of Fourth during Amendment claims former and not during ante, latter proceedings. See at 493 (arguing that deterrence would not be “enhanced” the risk “that a conviction obtained in state court and affirmed on direct might review be overturned in collateral proceedings occurring often but the unconstitutionality suddenly dissipates then at the moment the claim is asserted a collateral attack on the conviction. upon conceivable which rationale the Court's

“constitutional” might thesis rest the statement [exclusionary] “the rule is not personal a constitutional right. . . . Instead, judicially 'the rule is a created remedy designed safeguard to Fourth rights Amendment ” generally through Ante, its deterrent effect.’ at 486, United quoting Calandra, States supra, at 348. my Although dissent in rejected, light Calandra in of con- trary decisions establishing the role of the rule, premise that an individual has no constitutional right to have unconstitutionally seized evidence excluded by from I all use the government, dispute need not that point today’s here.9 For holding logically is not defens- ible even under Calandra. However the Court reinter- prets Mapp, and whatever the now rationale attributed Mapp’s to holding purpose or the ascribed to the exclu- sionary rule, prevailing rule constitutional is that un- constitutionally seized evidence cannot be admitted in person criminal trial of a whose federal constitutional rights were violated the search or seizure. The erro- neous admission of such evidence is a violation of the Federal Mapp inexorably means at least Constitution — this much, or there would for applying be no basis exclusionary rule in proceedings state criminal an—and years after the defendant”). course, incarceration of the Of it is difficult any see how the Court could constitutionalize such temporal distinctions, asserted particularly light of the differential speed proceed with which criminal cases appeal. even on direct unnecessary It is expand my here to upon disagree reasons for ment, fully my which are stated dissents United States v. Calandra, S., 355-367, 414 U. Peltier, and United States v. U. S. 550-562 against accused whom such evidence is admitted has been in derogation convicted rights by, mandated is “in custody violation of,” the Constitution of the United States. Indeed, since state courts violate strictures of the Federal by admitting Constitution such evidence, then even if federal di- habeas review did not rectly effectuate Fourth Amendment values, proposition I deny, review would nevertheless serve effectuate concededly what is principle concerning admissibility of evidence at trial. assuming

The Court, respondents without deciding were unconstitutionally convicted on the basis obtained evidence erroneously admitted against them the state trial courts, acknowledges respondents right had to obtain a reversal of their in the appeal convictions state courts or on certiorari this Court. since Indeed, our rules relating to the for applying time limits certiorari jurisdictional, criminal cases are non certio- rari could granted respondents today be even and their despite today’s convictions could be reversed decisions. infra, See also at reversing 533-534. And the basis for those convictions would of course to be the have that States, rejecting respondents’ Fourth Amendment deprived had claims, right derogation them a simply Federal It is Constitution. inconceivable that deprivation suddenly that constitutional vanishes after process the appellate has been And exhausted. as be- tween this on Court and district courts certiorari, federal Congress it is for effi- habeas, decide what most the cacious method is for enforcing constitutional federal rights asserting the primacy of federal law. See infra, simply ig- 525-530. The Court, however, adjudicat- nores principle purposes the settled ing Congress, power constitutional claims which the has Ill of effectively to do so under Art. has Constitution, in habeas in the role sitting courts cast the district surrogate Supreme Courts.10 starkly illogic

Today’s exposes the opinion itself rights recognized seeming premise the Court’s obviously forthrightly this fact is The failure to confront analysis. Congress For to the extent core defect in the Court’s district courts a role our constitutional has accorded federal functionally equivalent Supreme to that of Court with scheme respect to review of state-court resolutions of claims, it is evident that the Court’s review dis direct/collateral purposes simply collapses. Indeed, logi tinction for constitutional cally basically extended, analysis, which turns on the Court’s anticipate fact that law enforcement officials cannot a second court’s finding fully fairly constitutional errors after one court has adjudicated meritless, preclude the claim and found it to be would any Supreme appeal appellate Court on direct review even state fairly if review the trial court addressed the Fourth Amendment proposition certainly claim on the merits. The is if frivolous Mapp constitutionally yet grounded; is such is the essential thrust of the Court’s view that the unconstitutional admission of evidence merely police tolerable because officials cannot be deterred from possibility unconstitutional conduct favorable “admis sion” decision would be followed an unfavorable “exclusion” decision. arguments analysis The Court’s respecting the cost/benefit

applying exclusionary rule on collateral attack also no have exclusionary merit. For applying all of the “costs” of rule on already should have been incurred at the trial or on direct if misapplied review the state court had not federal constitutional principles. such, As these “costs” were evaluated and deemed to outweighed when the rule was fashioned. The proper question courts, acting on habeas is whether federal under congressional say directive to have the last as enforcement of permit federal enjoy- constitutional are to principles, the States free ment of by the fruits of a only conviction which definition were through obtained violations of interpreted Constitution as the Mapp. question any And as to the whether “educative” function by review, ante, is served 493, today’s such habeas see at decision certainly provide that, will a tragically lesson for an individual’s

513 suddenly evaporate ap- after all direct Mapp somehow peals exhausted. For the Court not bar as- would are on if the sertion Fourth Amendment claims of infra, rights, will not be lost state courts. See on at 530-533. analysis fallacy treating today's exposes

Another line of holding Constitutionally, as a no constitutional decision. barrier immediately precludes seeking a state defendant from a federal injunction against any unconstitutionally court’s state use of seized against However, equitable principles evidence him at trial. have operated cutting adjudication to foreclose short normal initial such in the prosecution, constitutional defenses course of a criminal Pfister, (1965), subject Dombrowski v. 380 485 3 U. S. n. collaterally ultimate through federal either on direct review review or g., Younger also, Harris, (1971). habeas. See e. v. 401 U. 37S. Moreover, comity, statutorily considerations now codified requirement §2254, exhaustion of power, lack dictate delayed that federal pending habeas review be the initial state-court delay price, determination. But timing was the “else a rule of circumscribing power would become a rule of the federal courts habeas, in defiance congressional Fay of unmistakable intent.” Noia, (1963); v. 372 id., U. S. 420 see 417-426. The Court today, however, converts this dictating timing doctrine of federal precluding review into doctrine review, federal see Francis v. Henderson, 425 (1976) (Brennan, J., U. S. dissenting); keeping such action is in regrettable with barring recent trend of the federal courthouse door to individuals with meritorious claims. See, g., e. Seldin, (1975); Warth Goode, U. S. 490 v. Rizzo (1976); Kentucky Rights S. Simon Eastern Org., Welfare 426 U. Although the federal courts could have “opportunity been the forum for the initial for full and fair hearing” prisoners of Fourth Amendment claims constitutionally sufficient, finds Court nonconstitutional concerns temporary abstention; dictated but having abstained, so are courts now ousted determining this Court from ever claims, since the they initially courts to which deferred are all that necessary this Court deems protecting rights pres essential to hostility ervation of the juris Fourth Amendment. Such to federal rights diction to redress violations of secured the Federal Con stitution, despite congressional conferral of jurisdiction, profoundly disturbing. full and opportunity “an was not accorded defendant Ante, courts." at in the of his claim state litigation fair ante, Bus Schneckloth 480, quoting 469. See also at tamonte, concur (1973) (Powell, J., 412 U. S. 218, ante, 37. 493-494, and n. ; 489-490, at ring) really the impossible if Court “exception” But this is Fourth Amendment claims means that the “rule” that constitutionally is based. cognizable (cid:127)are not on it “rule” if mandates that because For the Constitution author that law enforcement assumption is a “dubious reveal might review ities would fear that federal habeas at trial that went undetected flaws a search seizure ante, equally is “dubi it not an appeal,” and on at would police those same officials assumption” ous that the might review reveal that fear that federal habeas an opportunity state had the defendant courts denied his that hearing to full and fair on claim have a at and on And to the appeal? went undetected trial making assump unjustifiable extent the Court is the adequate cor jurisdiction tion certiorari is that our of Fourth vi rect “routine” condonation Amendment a surely courts, olations it follows fortiori jurisdiction the adequate “egregious” our is redress in which the state courts did not even accord situation hearing fair Fourth Amendment The claim. “exception” may thus more appear holding make merely it lack of “consti palatable, highlights but today’s rationale for constriction of habeas tutional” jurisdiction. Mapp holding Court adheres to “require[d]

Constitution exclusion” of evidence ad- Ante, 481. respondents’ However, mitted at trials. idiom, I arguing emphasize In in the Court’s “deterrence” assumptions concerning accepting purposes I am the Court’s that, premises, rule to demonstrate on its own today’s unsupportable. decision the Court holds that the Constitution “does require” not that respondents they accorded habeas relief if were accorded “an opportunity for full litigation and fair of Fourth Amendment [their] in state courts. claim[s]” Ante, at 482; see ante, also at 495 n. 37. Yet once the Constitution was interpreted by Mapp require to exclu- sion of certain evidence trial, at the Constitution became irrelevant to the manner in which that constitutional right to be was enforced in that courts; the federal inquiry is a only matter of respecting Congress' allocation

of judicial power federal this appellate between Court's jurisdiction jurisdic- federal district court’s habeas Indeed, today’s tion. conceding that “decision does not jurisdic- mean that the federal court lacks [district] ibid., [respondents’] tion claim[s],” over Court-ad- sufficiently they that respondents alleged mits that have custody are “in of the Constitution” violation meaning within the of 2254 and there is § that today’s holding. no “constitutional” for rationale approach “interest Rather, balancing” the constitutional I consti- untenable, to this case is can view the in which dresses result as a tutional the Court its garb disguise rejection longstanding principle of the that for pur- for rights there are “second class” constitutional no nothing less poses jurisdiction; of habeas it is attempt' veneer of provide respectability than an power Ill usurpation Congress’ of for an obvious Art. jurisdiction the federal to delineate the courts.

II today’s ground the real decision—a Therefore, particularly troubling light por- of its ground generally Court’s jurisdiction tent for habeas —-is habeas this would statutes; reinterpretation novel courts rou- the district requiring read the statutes as custody “in tinely deny relief to prisoners ... the United violation of Constitution laws “discre- judicial a matter of States” as “discretion” —a contrary ex- judicially today tion” to the manufactured statutory claims are “dif- press language such —because ferent in kind” from other constitutional violations fact-find- they ‘impugn integrity “do ” ante, ing process/ application and because guilty.” frees the such constitutional strictures “often Ante, Much opinion suggests at 490. in the Court’s deny a construction of the habeas relief statutes non-“guilt-related” based violations, see, vague comity federalism, this Court’s notions and ante, today’s g., e. premise at 478 is the actual for n. its attempts bury although the Court to decision, this footnotes, premises mark underlying premises in those habeas harbinger case of future as a eviscerations congressional power plainly that does violence to statutes juridiction.12 statutory habeas to frame the contours of “[rjesort especially to corpus, For told that we are person to no innocent purposes other than assure that loss results in seri- liberty, unconstitutional suffers an system gov- important to our ous intrusions on values judicial lack of resources, waste of ernment,” including the fed- finality criminal friction between convictions, and incursions “federalism.” judiciaries, eral and state Ante, told federal determination 491 n. 31. We are that at issue merely claims involves “an of Fourth Amendment justice of defend- bearing no on the basic has [the 12 to concerning precedential use my fears proof For g., put groundless, see, today’s opinion are not e. will which Williams, Henderson, (1976), U. S. 536 and Estelle v. Francis v. (1976), willingness to illustrate the Court’s 425 U. which S. scope so as cabin the of habeas habeas statutes construe the relief for criminal defendants. ante,

ant’s] incarceration,” at n. and that “the ultimate question process criminal [in should invari- ably guilt or innocence.” Ante, ante, 490; be] at see also 30; ante, at 491 n. United 490, quoting at Kaufman States, 394 U. (1969) (Black, J., dissenting). We are told that “policy arguments” of respondents to the effect that federal courts must be the ultimate arbiters of federal rights, constitutional and that our certiorari jurisdiction is inadequate perform this “stem task, from a basic mistrust of the state courts as fair and competent forums for the adjudication of federal con- stitutional rights”; “un- Court, finds itself however, willing to assume general that there now lack exists of' appropriate sensitivity to rights in trial and appellate courts of the several States,” it asserts that “unpersuaded” argument “the federal judges are more expert applying federal con- stitutional law” because “there is ‘no reason intrinsic why the fact that a man is judge a federal make should him more or competent, with conscientious, learned respect of Fourth Amendment [consideration ” neighbor his than courthouse.’ claims] Ante, provided 35. 493-494, Finally, n. we are a revi- history genesis growth sionist of the of federal habeas corpus jurisdiction. Ante, (Part II). If at 474-482 today’s decision were that erroneous state-court Fourth resolution of Amendment did render claims not the defendant’s confinement of resultant “in violation Constitution,” pronouncements these would have been wholly unnecessary. I jus- irrelevant and am therefore tified in apprehending groundwork being laid today for drastic jurisdic- withdrawal federal habeas grounds alleged if for all tion, unconstitutional de- at least for tention, then claims—for of double example, jeopardy, entrapment, self-incrimination, Miranda viola-

518 procedures13 and use of invalid identification

tions, —that “guilt this Court later decides are not related.” actually premising To the Court is its hold- extent the 2254, 2241 or ing interpretation § § on an of 28 U. S. C. that fed- overruling principle it is the heretofore settled any eral habeas relief is available to redress denial of as- of the rights, serted constitutional whether or not denial factfinding right affected the truth or fairness process. recognized propos- As Powell Me. Justice ing scope of habeas relief that the Court re-evaluate the Bustamonte, statutory 412 matter Schneckloth v. “on S., (concurring opinion), petition U. at 251 dis- or collateral review filed a federal 28 C. prisoners trict whether state under U. S. court, rule prisoners present 2254 or federal under § § may be asserted and is that Fourth Amendment claims applied precisely rule must be This Court has on same manner as on direct review.” jurisdiction over collateral accepted numerous occasions Fourth Amend- prisoners premised attacks statutory ment over dissents that as a violations, often g., cognizable. not be See, matter such claims should e. Newsome, 283, 291-292, v. 420 U. S. and nn. Lefkowitz Lewis, Cady (1974); 417 583 (1975); 9 Cardwell v. U. S. Williams, Dombrowski, Adams v. (1973); v. 413 U. 433 S. Warden, Whiteley 401 560 (1972); 407 143 v. U. S. U. S. Maroney, (1970); 399 U. 42 Har- (1971); Chambers v. S. 13 attorney-client might be claims of official surveillance of Others acquisition communications, government through uncon evidence g., California, means, see, e. Rochin 165 scionable U. S. government (1952), right speedy to a administra trial, denial serum,” Sain, (1963), tion of a see Townsend v. “truth U. S. right jury trial, Ludwig Massachusetts, denial of the see (1976), obtaining n. 3 or the convictions under rights properly statutes that First contravene Amendment when a applied particular drawn statute could have been to the defendant’s conduct.

519 Nelson, ris v. 394 (1969); DeForte, U. S. 286 Mancusi v. 392 (1968); LaVallee, U. S. 364 v. 391 U. S. Carafas (1968); Hayden, Warden (1967). v. 387 U. S. 294 Con sideration of the merits in each of these decisions reaf firmed the unrestricted scope of habeas but jurisdiction, each decision must be by today's deemed overruled holding.14

Federal habeas corpus review of Fourth Amendment of prisoners claims merely was one manifestation of principle finality “conventional notions of litigation criminal permitted cannot be to defeat policy manifest federal that federal rights constitutional of personal liberty shall not be denied without the fullest opportunity for plenary judicial Fay review.” Noia, v. 372 U. (1963). prece- This Court’s dents have “premised part been on recognition a large availability necessary of collateral is remedies to insure integrity proceedings and before trial where rights are at stake. Our decisions remedy leave no doubt that the federal habeas extends overruling Newsome, v. decided last Lefkowitz Term, particularly ironic. That held a case state defendant petition asserting a could file federal habeas Fourth Amend claims, despite subsequent guilty plea, pro ment when the State appellate vided for review those claims. Three Justices dissented statutory held, matter, would have that Fourth Amend cognizable habeas, sug ment claims are on federal but none gested the “constitutional” thesis embraced Court as today’s ostensible ratio decidendi for cases. Although expressly the Court does not overrule Kaufman States,

United (1969), progeny involving S. 217 its prisoners collateral review Fourth Amendment claims of federal (indeed, accomplishes today’s the Court expressly results without overruling distinguishing any diametrically contrary prece- our dents) obviously , does not survive. This tactic has Kaufman Hudgens become familiar in earlier g., decisions See, this Term. e. NLRB, (1976); Henderson, 424 U. S. 507 Francis v. 425 U. S. (1976); Spock, Greer v. 424 U. S. 828

520 prisoners alleging unconstitutionally

to state ob against was admitted them at trial.” tained evidence States, v. United 394 U. at 225. S., Some Kaufman rejected the explicitly those decisions considered “policies” ante, n. 31. Court, 491-492, referred to the at Allen, Fay g., (1953); Brown v. E. v. U. S. Noia, States, supra. v. There supra; United Kaufman construction respect were no with to the “assumptions” those statutes, the habeas but reasoned decisions that policies shutting for the justification were an insufficient litigants with federal constitu- federal habeas door light countervailing tional claims in of such considerations say’ necessity as “the courts have last federal inadequacy respect questions law, with of federal claims, procedures preserve state raise and may unsympathetic to judges the concern that state federally the institutional con- rights, created [and] jurisdic- straints the exercise of this Court’s certiorari 225-226, to review at convictions,” S., tion 394 U. adequate pro- well as fundamental belief “that rights relating tection of to the criminal constitutional availability of a process requires continuing trial Id., g., 226. generally, mechanism for relief.” at e. See Noia, Sain, 372 U. Fay supra; Townsend (1963). As who had dissented from Harlan, Mr. Justice many initially construing the habeas stat cases readily jurisdiction as heretofore recognized, habeas utes, “not with Court concerned accepted this was substantially fact-finding affect rules which those prevailing no- original trial. Under the apparatus States, supra, 22A-226, v. United tions, Kaufman necessary additional incen- threat habeas serves as a throughout courts the land appellate tive trial and in a consistent proceedings to conduct their manner standards.” Desist v. with established constitutional S, States, United 262-263 (1969) (dissent ing) (emphasis supplied). The availability of collateral review assures “that the lower federal and state courts toe the Id., constitutional line.” at 264. “[H]abeas to inquire lies every into any defect in criminal trial, where petitioner 'in remains custody’ because of the judgment trial, that unless the error committed was knowingly and deliberately waived or constitutes mere harmless error. That seems to be the implicit premise Allen, of Brown v. supra, clear purport of v. States, United supra. . . . The Kaufman primary justification given by extending the Court for scope of habeas to all alleged constitutional errors is it provides quasi-appellate review function, forc ing trial and appellate courts in both the federal and system to toe the constitutional mark.” Mackey States, v. United (1971) U. S. 667, (opinion 685-687 of Harlan, J.). Allen, See Brown also supra, at (opinion Frankfurter, J.) (“[N]o binding weight is attached to the State determination. The con gressional requirement is greater. The State court can not have the say it, though last when on fair considera tion of procedurally may what be deemed fairness, may have right”); misconceived a federal constitutional Fay Noia, supra, at 422. In effect, jurisdiction habeas a deterrent to unconstitutional appel actions trial and judges, safeguard late and a rights to ensure that secured under the Constitution and federal laws not merely are honored in the breach. pro function has been to “[I]ts prompt remedy vide a and efficacious society for whatever Id., deems to be intolerable restraints.” at 401-402. historical role the writ of “[T]he [is imperative remedy an effective for deten of] contrary Id., tions to fundamental law.” at 438. Allen, supra, At least since Brown v. detention emanat- ing judicial proceedings in from which “contrary rights were denied has been deemed to funda- mental all constitutional claims have thus been law,” and foun- cognizable corpus. on federal habeas There is no history habeas statutes language dation or discriminating types between of constitutional trans- categories of gressions, relegate and efforts to certain by exclud- rights” claims to the status of “second-class jurisdiction repulsed.15 them from that have been ing Today’s opinion, triumph marks the of those however, sought hierarchy who have to establish a of constitutional rights, deny practical purposes and to for all a federal rights forum for Court deems review those this worthy less important. paying Without even slightest decisis or ac- principles deference of stare knowledging Congress’ failure for two to alter decades light interpretation the habeas statutes of our congressional to render all constitutional intent federal today cognizable contentions on the Court re- habeas, con- Congress’ jurisdictional writes statutes as heretofore by prisoners strued to and bars access federal courts state majority my with to constitutional claims distasteful of ignoring principles Brethren. But even of stare decisis dictating Congress appropriate that is the vehicle for embarking jurisdiction on such a fundamental shift in the I of the find courts, adequate justification can no by concluding elucidated the Court for that habeas relief for all longer compelled federal constitutional claims is no Brown, reasoning Fay, under the of and Kaufman. I would address the Court’s concerns for effective utili- 15My crime, hypothesis Brother White's of two confederates in post, 536-537, fully type see at demonstrates the of discrimination Congress clearly sought if, to avoid out of the full universe of only rights, rights constitutional certain could be vindicated resort to this certiorari Court’s jurisdiction. judicial finality

zation of scarce resources, fed- principles, friction, eral-state long and notions of “federalism” to enough carry note that such concerns no more force with respect non-“guilt-related” claims constitutional they than do with claims that respect to affect the accu- racy of the factfinding process. Congressional conferral jurisdiction federal habeas purpose for the of enter- petitions taining necessarily from prisoners mani- fested a conclusion such concerns could not be con- any and trolling, argument among for discriminating rights must depend therefore on nature right the constitutional involved. The Court, focusing rights it Fourth Amendment must justify such argues thus that ha- discrimination, beas for relief is non-“guilt-related” constitutional claims not mandated because such claims do not affect the “basic justice” of ante, a defendant’s at 492 n. detention, see 31; is presumably this of the goal” because “ultimate justice system g., criminal justice.” is “truth and E. ante, denigration and 491 This n. 30.16 consti- guarantees constitutionally tutional proce- mandated dures, relegated by the Court to the of mere utili- status tarian tools, appall judicial must taught expect citizens respect and support rights. their constitutional Even if punishment “guilty” highest society’s were procedural value —and to this safeguards denigrated end—in a Members majority constitution that a of this Court ordering would prefer, priorities Framers, under the forged Constitution duty uphold this Court’s sworn is to that Constitu- 16The Court also when notes that “attention . . . diverted” [is] trial issues, ante, 490, courts address rule and with application guilty.” result that of the rule “often frees the “arguments” Ibid. course, respect Of these are true with every guarantee governing administration of the crim justice system. inal procedural

tion and not to frame its own. The safe- guards mandated in are not the Framers’ Constitution they admonitions to be serve tolerated to the extent purposes “guilty” functional are ensure punished and the freed; every guaran- “innocent” rather, tee Constitution, enshrined our basic charter and the guarantor by of our it precious most en- liberties, dowed with independent vitality an and and this value, Court is not free to curtail guaran- those constitutional punish obviously tees even to guilty. the most Partic- ular constitutional rights that do affect the fairness factfinding procedures cannot for that reason de- be nied at the possible justification trial itself. What then can there be for denying rights vindication of such deny federal habeas when state courts rights do those at trial? To disrespect disregard sanction for the Constitution in protecting society the name of from law- breakers is to government make the itself lawless and upon to subvert those values which our ultimate freedom liberty depend.17 history “The of American freedom 17“Experience guard should teach us protect to most on our liberty purposes when the Government’s are beneficent. Men born naturally to freedom repel liberty by are alert to invasion of their greatest dangers liberty evil-minded rulers. The lurk in insidious zeal, well-meaning encroachment men of but understand without ing.” States, (1928) Olmstead v. United 277 U. S. (Brandéis, J., dissenting). id., See also1 at 485. duly are society “We mindful of the reliance place must

achieving upon law and order enforcing agencies of the criminal law. But insistence on observance law officers of traditional fair procedural requirements is, long point from the view, best calcu- lated to contribute to that end. particular However much in a case upon may appear insistence such technicality rules as a that inures guilty to the person, history benefit of a of the criminal law proves that tolerance of short-cut methods law enforcement impairs enduring its effectiveness.” Miller States, v. United Boyd See also States, United S.U.

525 inis, history no small measure, the of procedure,” Malin ski New York, v. 401, (1945) 324 U. S. 414 of (opinion Frankfurter, and as J.), succinctly Justice Holmes so Mr. reminded “a us, it is less evil that some criminals should escape than that the Government play should an ignoble part.” States, Olmstead v. United 470 438, U. S. (1928) (dissenting opinion). is an abuse to deal “[I]t casually too lightly rights and too the guaranteed by with they Federal Constitution, though even limita involve tions upon power may State and be invoked those morally unworthy.” Allen, Brown v. 344 U. atS., (opinion of Frankfurter, J.). Enforcement of federal rights redress constitutional viola tions directed against the is func “guilty” particular tion of review, judges trying lest federal “morally unworthy” be tempted not to execute supreme judges law of the land. popularly State elected may difficulty resisting popular have ex pressures not perienced by judges given lifetime de tenure signed to immunize them from such influences, and federal habeas congressional judg statutes reflect salutary ment such detached is federal review against any of safeguard detention an individual “in vio of lation the Constitution or laws the United ... States.” carry duty congres-

Federal courts have out the (1886); States, Weeks 392-394 United hyperbole dissenting “the opinion Court asserts that misdirected,” ante, seriously at 495 n. I but take this Court’s continuing constitutionally guaranteed rights. incursions on “[I]lle- gitimate practices get footing and their unconstitutional first namely, by approaches slight way, legal deviations from silent procedure. duty modes It is ... courts be watchful rights citizen, stealthy against any the constitutional Boyd States, supra, encroachments thereon.” United at 635. the ultimate to shoulder sionally assigned responsibility federal violate whether burden of detentions adjudging that substantially abnegates today’s decision law, dispute it duty. does because The Court not, cannot, any possi- totally preclude constraints institutional whether bility adequately oversee this Court can and does properly applied law,18 state courts have federal jurisdiction habeas not controvert the fact that federal inadequacy. to partially designed Thus, ameliorate I constitu- although fully agree that courts “have a state to obligation personal tional to liberties and safeguard uphold of law,” “general federal and that there is no lack appropriate sensitivity to in the trial rights ante, appellate courts of the several at 494 n. States,” I agree today cannot that it follows that, as Court Fourth holds, federal-court determination of almost all prisoners Amendment claims of barred should be and that state-court should be resolution of those issues Congress insulated from the federal review intended. For, aptly as Mr. Frankfurter the issue Justice so framed rejecting similar construing contentions habeas Allen, supra: statutes Brown v.

“Congress could have left the enforcement of fed- rights eral constitutional the administra- governing justice exclusively tion of criminal in the to States These under State courts. tribunals are duty respect rights same as the federal courts to under the It United States Constitution. ... is not power for us to determine whether this should have been vested in the federal courts. ... wisdom [T]he Congress such a the law is modification of for in Brown powerfully These considerations were articulated Allen, (1953) (opinion J.). Frankfurter, 344 U. S. 491-494 Fay 432-433; England Noia, S., Cf. 372 U. v. Louisiana also Examiners, Board Medical State 375 U. 415-417 consider, particularly in view of the effect expanding concept process upon due enforcement by the States of their criminal laws. It is this give Court jurisdic- to the habeas corpus fair effect tion by Congress. as enacted By giving the federal jurisdiction, courts that Congress has imbedded into legislation the historic function adapted reaching enlarged an area of claims. . . .

“. . . But the prior State determination of a claim under the United States Constitution cannot fore- close consideration of such a claim, else the State court would say have final Congress, which the by the Act of 1867, provided it should not have.” at S.,U. 499-500 (emphasis supplied). adjudication “State of questions of law cannot, under the statute, accepted be binding. It precisely is questions these judge that the federal is Id., commanded to decide.” at 506.

“Congress power has the to among distribute the courts of the jurisdic- States and of the United States tion to determine federal It fit claims. has seen to give power this Court to review errors of federal law in State in addition to determinations, give and to power the lower federal courts to inquire into by way federal claims, corpus. of habeas . But . . it be in disregard would of Congress what has ex- pressly required deny to prisoners State access to the federal courts.

“. jurisdiction . . Insofar as this enables federal district courts Supreme to entertain claims that State have rights guaranteed by Courts denied the United Constitution, States it is not a of case a lower court sitting judgment higher merely court. It is one the aspect respecting Supremacy Clause the whereby higher

Constitution law than is federal Congress State It the designate law. to to hierarchy judiciary member federal express higher Congress law. The fact has organ authorized district to be courts higher law rather Court of or ex- Appeals, than a clusively Court, this does not mean that it allows merely higher a lower It court overrule a court. expresses the choice of how au- Congress superior thority of federal law should asserted.” S., 508-510 (emphasis supplied). Congress’ Sain, Townsend following action 372 U. S. v. (1963), Fay Noia, em- (1963), U. S. 391 phasized of Congress superior “the choice how au- thority of federal law should be asserted” federal duty courts. Townsend v. Sain outlined with re- factfinding hearings habeas courts to conduct Fay petitions brought by spect prisoners, of state Noia defined the contours of the “exhaustion light purpose 2254 in of its prerequisite § remedies” cor- opportunity to state courts the first according expressly Congress rect their constitutional errors. own Town- incorporate the modified the habeas statutes carefully a limited and as to accord send standards so deter- to the factual judicata effect circumscribed res not alter Congress judges. But did minations of state col- Brown, that Fay, and principle of Kaufman any to respect with is to be available lateral relief that federal district deprivation and constitutional appeals courts review in the of subject to judges, of supremacy of spokesmen to be Court, this are congressional efforts to subsequent Indeed, federal law. the re- to effectuate statutes jurisdictional those amend by judicial have fiat accomplish Brethren my that sult consistently proved unsuccessful. There as remains, noted no basis language leg- whatsoever before, history islative for establishing habeas statutes such hierarchy a of rights; federal certainly there no constitutional warrant in this Court override a congressional respecting determination re- federal-court view of judges of decisions determining constitu- tional prisoners. claims of state any

In respondents’ that contention Fourth event, Amendment claims, like all other constitutional claims, cognizable must be on does not habeas, rest the ground attributed to them the Court —that the state courts are rife with animosity to the constitutional of mandates this Court. It is one thing to assert that state courts, general accurately matter, decide federal constitutional claims; it is quite another generalize from that limited proposition to congressional that, despite conclusion intent sitting federal courts habeas must stand any ready rectify constitutional errors that are never- theless committed, judicially federal courts are to be pre- from cluded ever whole cate- considering merits gories rights procedural to be accorded less are protection merely they proclaims because the Court accuracy factfinding do not affect the or fairness process. guise procedural “Under the fashioning justified wiping practical are not out the rule, we effi- cacy jurisdiction Congress of a on the Dis- conferred trict Rules which in effect treat all these cases Courts. indiscriminately as frivolous do fall far short of abol- jurisdiction.” Allen, Brown ishing this head of J.). (opinion Frankfurter, To S., 498-499 judges ac- appellate faithfully, state trial and extent assiduously law and the curately, apply federal by the principles enunciated courts, such determinations will be vindicated collaterally merits when attacked. But extent to the federal law is erroneously applied by the state courts, there is authority deny no in this Court to defendants right to have by way those rectified errors habeas;19 of federal reluctance to ac- indeed, Court's cept Congress' along desires can be a these lines of this judges. manifestation Court’s mistrust for federal Furthermore, might expected dispute some the aca- accepted by demic’s seemingly dictum the Court federal judge necessarily is not a state more skilled than judge ante, applying federal at 494 n. 35. For law. See Supremacy proceeds Clause of the Constitution on a premise, constitutionally different and Congress, as it was empowered (and initially made fed- do, judges primary eral district court “the judges) powerful every reliances vindicating right given by for Con- stitution, the laws, and treaties of the United States.” Koota, Zwickler v. 389 U. 247 (1967). S. 241, If proof necessity of the of the jurisdic- federal habeas tion were required, disposition courts the state underlying Fourth presented by Amendment issues supplies these cases it. In 74-1055, respondent No. was pursuant arrested to a obviously statute which is uncon- stitutional Papachristou City Jacksonville, under 405 U. apart S. 156 Even from vagueness its potential arbitrary concomitant and discrimina- tory enforcement, purports the statute to criminalize the presence of presence one unable to account for his in a sit- uation person where a reasonable might pub- believe that Allen, S., (opinion See Brown v. 497-499 Frank furter, J.). few, “The procedures meritorious claims are but our must ensure that those few undiscriminating claims are not stifled generalities.” Id., at 498. safety

lie ante, demands identification. See at 469 n. 1. It is no crime in a society free not to have “identification papers” on one’s and person, palpable the statute is a effort police to enable to arrest individuals on the basis suspicion mere and to facilitate detention even when there is probable no cause to believe a crime has been likely or is to be committed. See 405 U. atS., 168-170. Without elaborating on the various arguments buttressing this result, including the aspects self-incrimination of the ordinance and attempt its to circumvent Fourth Amend- safeguards ment in a situation Terry Ohio, under that, U. S. (1968), permit would at most law enforce- ment officials to protective conduct a search for weapons, I only would note that the due the Court’s ordinance, failure to address its constitutionality remains in today, full force and thereby effect, affirmatively encouraging further Fourth Amendment violations. Moreover, fact single judge state ever addressed the validity of the ordinance, and the lack of record evidence why as to or rejected respondent’s how he gives claim, me pause as to whether there is any real content to the Court’s “exception” for bringing Fourth Amendment claims on habeas in situations which prisoners state were not opportunity accorded an for a full and fair state- court resolution claims; of those fact also makes irrelevant the Court’s presumption that deterrence is not furthered when there is federal habeas of a review search- and-seizure claim that was erroneously rejected by “two Ante, more tiers courts.” at 491.

Even more violative of safeguards is the manner in which the Nebraska courts dealt with respondent merits in Rice’s case. manner in Indeed, which Fourth Amendment principles applied were in the Supreme Nebraska Court is paradigmatic of Congress’ to structure respecting attempts concern state courts to upset Fourth Amendment so as jurisprudence “guilty” “unworthy.” Judge or the As convictions fully thoughtful thorough Urbom detailed in two opinions for ha- petition District Court Rice’s upon police the affidavit which Omaha obtained beas, thereby apartment warrant searched Rice’s was clearly prevailing deficient under stand requirement no ards, exception and extant to the warrant justified the search a absent valid warrant. Yet the Ne Supreme braska Court on the alterna upheld search patently ground tive and there no untenable is Fourth Amendment if a warrant violation defective supplemented at suppression hearing by a facts that theo retically but presented could have were to the been, not, magistrate. issuing construction of the Fourth Such obviously Amendment would abrogate the warrant re of quirement the principle Fourth Amendment and “protection its those in requiring consists justify ferences whether the data an in available [as person’s by trusion upon privacy] be drawn a neutral and magistrate by detached instead of being judged engaged officer competitive enterprise the often of States, ferreting out crime.” Johnson United 333 v. U. S. by refusing Yet today, the Court re ante, affirm our at even precedents, see 473 n. casts unquestioned some doubt on that precept heretofore Fourth Amendment “an jurisprudence that otherwise insufficient affidavit cannot be testi rehabilitated mony concerning possessed information the affiant sought when he but not warrant disclosed to the Texas, magistrate. Aguilar issuing See v. U. S. contrary n. 1. rule would, course, render A requirements of the warrant the Fourth Amendment Warden, Whiteley 401 U. meaningless.” S., at 565 n. 8. Of course, the Court strongly to reiterate the fundamentality principle of this highlight would Supreme the Nebraska Fourth distortion of the Court’s emotionally thereby charged Amendment an case, general potential accentuate the for erroneous state-court adjudication Fourth Amendment claims.20

Ill today’s of com- aspects deserving Other decision are but For particularly special ment one merits attention. today’s ruling prospective to limit Court’s failure application cases that sharp stands in contrast to recent have so con- expanding affirming limited decisions explicit rights. relying stitutional on the Respondents, Fay Noia, that a holding (1963), 372 U. necessary petition for a writ of certiorari is not a predicate accepting for federal habeas relief, import prior clear of our habeas cases face value the may chal- be that all unconstitutional confinements any restric- that new habeas, on federal contend lenged relief ability to obtain habeas prisoners’ tion on state only. Court, prospective held to be should be inability effective respondents’ dismisses however, federal on their pass court single to federal have a “re- that offhand remark with claims for timely petition to file a course, free spondents were, corpus relief.” seeking federal prior certiorari time fact that To Ante, sure, 38. be at 496 n. re- with jurisdiction our certiorari invoking for limits are courts emanating from criminal cases spect to citing patent error fell into Supreme Court The Nebraska may supple “the affidavit proposition Whiteley for the police.” to the testimony evidence known of additional mented W. 2d 199 N. Rice, 188 Neb. State v. no»-jurisdictional would dictate that respondents are at least free to file out-of-time certiorari petitions; under the Court's “direct review” distinction delineated today, we would still have authority to address the substance of respondents’ eminently concededly meritorious Fourth Amendment Of claims. course, federal review by certiorari in this Court is a matter grace, and it is grace now seldom bestowed at the behest of a criminal I defendant. have little confidence that three others of the join Brethren would in voting grant such thereby petitions, reinforcing the notorious fact our jurisdiction certiorari is inadequate containing proceedings state criminal within constitutional bounds and underscoring Congress’ in mandating wisdom broad jurisdiction federal habeas for the district courts. any In fully event, since we are familiar with the rec- respondents ords in these cases, are at least review owed particularly this Court, since it shuts the of the doors district courts in a decision that marks such a stark break with our precedents scope relief; on the of habeas if indeed, the Court were all disposed safeguard con- rights stitutional and educate state and judges concerning Fourth jurispru- contours of Amendment dence in various it would decide these cases situations, on the employ merits rather than a procedural ruse respondents’ ensures continued unconstitutional confinement.

IV In I summary, while unlike the Court consider that the ingredient rule is a constitutional any Fourth modification of that rule should Amendment, accomplished at least be with some modicum of logic g., e. justification provided today. & See, Dershowitz Harris New York: Anxious Some Observations Ely, on the Candor of the Nixon Ma- Logic Emerging jority, 80 Yale The Court does not L. J. holding disturb the Ohio matter of Mapp that, as a illegally federal constitutional obtained evidence law, must be excluded from the trial of a criminal defendant rights transgressed during whose were the search that In acquisition light resulted in of that evidence. rule it is a matter for not this Congress, prescribe to what courts are review Court, federal prisoners’ state committed claims of constitutional error by decision, state courts. Until this our cases have never departed from the construction of the habeas statutes embodying congressional however substan- that, intent rights expanded, tive constitutional are delineated rights may procedural those be asserted as a matter under jurisdiction. transparent federal habeas Employing today’s tactic that construing is a decision the Constitu- usurps authority by Court the Con- tion, —vested stitution in Congress reassign judicial —to responsibility for reviewing prisoners’ state claims of fail- ure state courts to redress violations of their Fourth Amendment Our rights. jurisdiction eminently un- suited task, practical for that and as a matter the result today’s holding by will be that denials the state courts prisoners of claims of violations of their Fourth rights go Amendment fed- will unreviewed I ultimately eral tribunal. fear that the same treatment prisoners’ will be accorded state claims of violations rights; other constitutional thus potential ramifica- tions of this jurisdiction generally case federal habeas are longer just ominous. The no content Court, forthrightly rights restrict the constitutional of the cit- campaign has embarked on a to water down even izenry, rights acknowledge such constitutional as it purports by foreclosing the device of to resort the federal habeas remedy for their redress.

I judgments would affirm Appeals. the of the Courts of Mr. Justice White, dissenting. many

For by of the reasons Bren- stated Justice Mr. I nan, agree corpus cannot that the writ habeas should any less available to convicted of crimes those state they allege where Fourth than Amendment violations where other presented constitutional are to the issues federal court. Under the amendments to habeas Fay Noia, which were statute, adopted after 391 (1963), U. S. and an Con- represented effort gress finality lend a modicum of criminal I judgments, distinguish cannot between Fourth Amend- ment other and issues.

Suppose, for example, two confederates crime, Smith and crime Jones, separately are tried for a state very and on including convicted same evi- evidence, dence seized made allegedly incident their arrest with- out probable fully cause. Their are constitutional claims aired, rejected, appeal. Their preserved and convic- tions highest are affirmed court. Smith, State's to be tried, petition first does not for or certiorari, but petition does so his is Jones, denied. whose convic- tion considerably peti- was His later, more successful. granted tion for certiorari is and his conviction reversed any making because this without rule of Court, law, new simply undisputed concludes that on facts arrests probable challenged were made without cause evidence was in violation the Fourth therefore seized retry Amendment. The must State either Jones re- necessarily him, custody lease because he is deemed It violation Constitution. turns out with- illegally out the evidence no seized, case; State has goes Jones free. Smith files petition then his corpus. He makes no claim he did not have a full and fair in the hearing courts, state but asserts that his Fourth Amendment claim erroneously had been de- cided and that he being is held in violation the Federal Constitution. He cites this Court’s decision in Jones’ satisfy any case to burden him placed by on 2254 to § demonstrate that in court was error. Unless the Court’s reservation, in present its those opinion, of situations where the defendant has had a full and hearing fair in the encompass state courts is intended to all those circumstances under which state criminal may judgment be re-examined under which § 2254—in opinion essentially event the meaningless judg- and the ment petition erroneous —Smith’s would be dismissed, spend and he would in prison colleague his life while his I is a man. Congress free cannot believe that intended this result. present corpus

Under the habeas Rice’s statute, neither application nor Powell’s should by I grounds dismissed now the Court. stated judgments would affirm the of the Courts of Appeals exclusionary acceptable rule being applications Mapp in v. applicable state criminal trials virtue Ohio, 367 U. 643 (1961). S. I join however,

I that would say, constrained to feel limiting the substantially in four more other Justices exclusionary administered presently rule as reach of crim- in and state the Fourth Amendment under inal trials. I in joined opinion have the Court’s would

Whether I Member of Ohio, had then been a supra, Mapp v. time after I know. But as went on Court, do not I both became convinced that bench, to this coming Weeks United States, Mapp v. 232 U. 383 (1914), Ohio they had overshot their mark insofar as aimed to deter lawless action personnel law enforcement many applications and that its advancing rule was not that aim in the slightest, arriving respect this it was a senseless obstacle to many at the truth criminal trials. suggestions rule much criticized and has been but wholly been made that it should be abolished,

have would overrule neither Weeks United States I nor v. Ohio. I Mapp am nevertheless of the view that substantially prevent modified so as to rule should be many circumstances where the application its those in by acting officer the evidence at issue was seized an comported his conduct with exist- good-faith belief that for this belief. ing having grounds law and reasonable recurring situations; recurringly and evidence These are any that its expectation is excluded without realistic ex- slightest purposes clusion will contribute in the to the though seriously trial be affected rule, the even the will or'the indictment dismissed. uphold apprehend law to

An officer sworn to the inevitably judgments who break it must make those regarding probable cause to arrest: Is there reasonable to has been committed and ground believe that crime suspect has committed it? particular that a Sometimes disputed facts are or are otherwise the historical may In facts clear so doubt. other situations the be yet question probable the they far as are known, special In still there worries cause remains. others are reliability of about the secondhand information such as from In coming any that informants. of these situa- occur which when officer is con- the tions, repeatedly, probable vinced that has cause to very he arrest he will it is Except likely make the arrest. emergencies, participate superiors or will probable colleagues that his secure that the officer may the and it be will decision, probable cause warrantless arrests although a warrant, law. by Constitution or not forbidden are precisely the arrest such circumstances Making community to expects police officer do. what need issuing nor arrest warrants judges Neither officers delay until apprehension suspect unquestioned may proof him The officer against has accumulated. duty his if he does shirking so. hoped

In offi- most these it is situations, judgment experience cer’s correct; will be but tells us there will be those occasions where trial appellate court will disagree probable on the issue no grounds matter how reasonable arrest cause, appeared the officer though reasonable men could easily differ question. on the also happens It that after the events at issue may have the law occurred, change, dramatically or so ever but in any event suffi- slightly, ciently to require trial judge hold that there was probable cause make the arrest and to seize the evidence offered the prosecution. may It also be, inas the Powell case now before prob- there is us, able cause to make an arrest particular under a criminal statute but when evidence seized incident to the arrest is in support offered of still another criminal charge, the statute under which the arrest and seizure were made is declared unconstitutional and the evidence in- ruled admissible under the exclusionary rule presently administered.

In these perhaps and situations, many exclud- others, ing the evidence will not further the ends of the exclu- sionary any rule in appreciable way; for it is painfully apparent in each of them the officer is acting as a cir- in similar act and should officer would

reasonable way- no in can Excluding the evidence cumstances. him less is to make it his future conduct unless affect cases the that in such duty. It true to do is his willing that in their view the ultimately have determined courts making true that in mistaken; but it is also^ was officer language the general under judgments including the parts Constitution, used in some our disagree- room for there is much Amendment, Fourth is each of whom convinced that among ment judges, colleagues Surely both he and his are reasonable men. prob- this Court five to four on issues when divides it is tenable conclude that the officer cause, able fault or in unreasonably making was at acted the arrest. personnel When law enforcement mis- have acted but faith good and on reasonable takenly, grounds, yet they evidence seized is have later excluded, the exclusion can no have deterrent effect. officers, they if do their will act similar fashion in duty, future; only similar circumstances and the con- sequence of presently the rule as administered is that probative unimpeachable and evidence from kept trier of fact and the truth-finding proceed- function of ings is substantially impaired or a trial totally aborted.

Admitting the evidence such circumstances does not participants render judges in Fourth Amendment viola- tions. The if there was violation, already has one, occurred and the evidence is at hand. Furthermore, has there been but mistaken, unintentional conduct fáultless, enforcement officers. Exclusion of the evidence does not cure the invasion of the defend- rights ant’s which he already has suffered. Where an arrest has been made on probable cause but the defend- ant is under acquitted, federal law the defendant has no right damages simply because his innocence has been unhappy “A not so that he proved. policeman’s lot is with being charged must between dereliction choose duty probable if he not arrest he has does when cause, if Pierson v. and mulcted he does.” being damages Ray, is also officer The U. liability from for “acting excused under a statute that he believed valid but reasonably to be that was later applied.” held face or as unconstitutional, its Ibid. liability There is doubt little that as far as is con- civil rule is the same under law where the cerned, mistakenly officer reasonably prob- but has believes he Rhodes, able an In Scheuer cause for arrest. (1974), S. 232 generally Court announced officers of the branch of the government executive should liability be immune from action where their is light coupled reasonable “in of all the circumstances, good-faith Id., with belief.” at 247-248. The Court say: went on to mayors

“Public whether or governors, officials, legislators or who to make de- fail police, judges, they cisions when not are needed who do act to implement they decisions made do not when are fully faithfully perform duties their Implicit in offices. idea that have officials some immunity or qualified their acts, —absolute —for a recognition they may err. concept of The immunity goes assumes this and on to assume that it is better risk error possible some injury from error such than not to or act at decide all.” Id., (footnote omitted). at 241-242 proceeded Court has on this same basis other Donaldson, contexts. O’Connor v. 563 (1975); U. S. Wood v. Strickland, 420 308 (1975). U. S.

If the defendant may criminal cases recover good-faith mistaken but invasion of his it privacy, solely less makes even sense to exclude the evidence recompensed He is at all for the invasion his behalf. by merely getting property his back. It is often contra- property and stolen to which he is not entitled band any charged event. He has been with crime and is seeking probative to have evidence him against excluded, often it although instrumentality is the of the crime. very There is equity little defendant’s side these circumstances. judicial con- rule, struct, seriously shortchanges the public interest presently applied. I modify would it accordingly.

Case Details

Case Name: Stone v. Powell

Court Name: Supreme Court of the United States

Date Published: Oct 4, 1976

Citation: 428 U.S. 465

Docket Number: 74-1055

Court Abbreviation: SCOTUS