p. 618LINKLETTER v. WALKER, WARDEN.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT.No. 95. Argued March 11, 1965.—Decided June 7, 1965.
Petitioner was convicted of burglary by a Louisiana court and his
conviction was affirmed by the highest state court. Thereafter, in
Mapp v. Ohio, 367 U. S. 643, this Court held that evidence illegally
seized is inadmissible in a state criminal trial, and petitioner applied
for a writ of habeas corpus. The writ was denied by the federal
District Court and by the Court of Appeals, which found the
searches of petitioner’s person and property illegal but held that
the Mapp exclusionary rule was not retrospective. Held: The
exclusionary rule announced in Mapp does not apply to state
court convictions which had become final before its rendition. Pp.
622-640.
(a) The effect of a subsequent ruling of invalidity on prior final
judgments when collaterally attacked is not automatic retroactive
invalidity but depends upon a consideration of particular relations
and conduct, or rights claimed to have become vested, of status, of
prior determinations deemed to have finality, and of public policy
in the light of the nature of the statute and its previous applica-
tion. Chicot Drainage Dist. v. Baxter State Bank, 308 U. S. 371.
P. 627.
(b) No distinction is drawn between civil and criminal litigation.
P. 627.
(c) The Constitution neither prohibits nor requires retroactive
effect and in each case the Court determines whether retroactive or
prospective application is appropriate. This approach is particu-
larly correct with reference to the unreasonable search and seizure
proscription of the Fourth Amendment. P. 629.
(d) The primary purpose of Mapp v. Ohio was the enforcement
of the Fourth Amendment through the inclusion of the exclusionary
rule within its rights, and this purpose would not be advanced by
making the rule retroactive. Pp. 636-637.
(e) Other areas in which rules have been applied retrospectively
concerned the fairness of the trial, which is not under attack here.
P. 639.
p. 619(f) The date of the seizure in Mapp (which preceded that here)
is of no legal significance; the crucial date is the date of the Mapp
judgment which changed the rule. P. 639.
323 F. 2d 11, affirmed.
Euel A. Screws, Jr., argued the cause for petitioner.
With him on the brief was Truman Hobbs.
Teddy W. Airhart, Jr., Assistant Attorney General of
Louisiana, argued the cause for respondent. With him
on the brief was Jack P. F. Gremillion, Attorney General.
H. Richard Uviller argued the cause for the National
District Attorneys’ Association, as amicus curiae, urging
affirmance. With him on the brief was Michael Juviler.
Louis J. Lefkowitz, Attorney General of New York,
Samuel A. Hirshowitz, First Assistant Attorney General,
Barry Mahoney and Thomas F. O’Hare, Jr., Assist-
ant Attorneys General, H. Richard Uviller and Michael
Juviler filed a supplementary memorandum on behalf of
the National District Attorneys’ Association, as amicus
curiae.
Mr . Justice Clark delivered the opinion of the Court.
In
Mapp v. Ohio, 367 U. S. 643 (1961), we held that
the exclusion of evidence seized in violation of the search
and seizure provisions of
the Fourth Amendment was re-
quired of the States by the Due Process Clause of
the
Fourteenth Amendment. In so doing we overruled Wolf
v. Colorado,
338 U. S. 25 (1949), to the extent that it
failed to apply the exclusionary rule to the States.1 This
case presents the question of whether this requirement
operates retrospectively upon cases finally decided in the
p. 620period prior to Mapp. The Court of Appeals for the Fifth
Circuit held that it did not, 323 F. 2d 11, and we granted
certiorari in order to settle what has become a most
troublesome question in the administration of justice.2
377 U. S. 930. We agree with the Court of Appeals.
2 A split of authority has developed in the various courts of appeals
concerning the retrospectivity of Mapp. Compare Hall v. Warden,
313 F. 2d 483 (C. A. 4th Cir. 1963) (retroactive); Walker v. Pepper-
sack, 316 F. 2d 119 (C. A. 4th Cir. 1963) (retroactive); California v.
Hurst, 325 F. 2d 891 (C. A. 9th Cir. 1963) (retroactive), with Gaitan
v. United States, 317 F. 2d 494 (C. A. 10th Cir. 1963) (prospective);
Linkletter v. Walker, 323 F. 2d 11 (C. A. 5th Cir. 1963) (prospec-
tive) ; Sisk v. Lane, 331 F. 2d 235 (C. A. 7th Cir. 1964) (prospective);
United States ex rel. Angelet v. Fay, 333 F. 2d 12 (C. A. 2d Cir.
1964) (prospective).
About the only point upon which there was agreement in the cases
cited was that our opinion in Mapp did not foreclose the question.
The state courts which have considered the question have almost
unanimously decided against application to cases finalized prior to
Mapp. See, e. g., Beltowski v. Tahash, 266 Minn. 182, 123 N. W. 2d
207, cert, denied, 375 U. S. 947 (1963); Moore v. State, 274 Ala. 276,
147 So. 2d 835 (1962), cert, denied, 374 U. S. 811 (1963); People v.
Muller, 11 N. Y. 2d 154, 182 N. E. 2d 99, cert, denied, 371 U. S. 850
(1962).
Commentators have also split over the question of absolute retro-
activity. See Bender, The Retroactive Effect of an Overruling Con-
stitutional Decision: Mapp v. Ohio, 110 U. Pa. L. Rev. 650 (1962);
Freund, New Vistas in Constitutional Law, 112 U. Pa. L. Rev. 631
(1964); Traynor, Mapp v. Ohio at Large in the Fifty States, 1962
Duke L. J. 319; Weinstein, Local Responsibility for Improvement of
Search and Seizure Practices, 34 Rocky Mt. L. Rev. 150 (1962); Note,
Collateral Attack of Pre-Mapp v. Ohio Convictions Based on Illegally
Obtained Evidence in State Courts, 16 Rutgers L. Rev. 587 (1962);
Note, Prospective Overruling and Retroactive Application in the
Federal Courts, 71 Yale L. J. 907 (1962). Contra, Currier, Time
and Change in Judge-Made Law: Prospective Overruling, 51 Va. L.
Rev. 201 (1965); Meador, Habeas Corpus and the “Retroactivity”
Illusion, 50 Va. L. Rev. 1115 (1964); Torcia & King, The Mirage of
Retroactivity and Changing Constitutional Concepts, 66 Dick. L.
Rev. 269 (1962).
p. 621The petitioner was convicted in a Louisiana District
Court on May 28, 1959, of “simple burglary.” At the
time of his arrest he had been under surveillance for two
days as a suspect in connection with another burglary.
He was taken to the police station, searched, and keys
were taken from his person. After he was booked and
placed in jail, other officers took his keys, entered and
searched his home, and seized certain property and papers.
Later his place of business was entered and searched
and seizures were effected. These intrusions were made
without a warrant. The State District Court held that
the arresting officers had reasonable cause for the arrest
under Louisiana law and finding probable cause to search
as an incident to arrest it held the seizures valid. The
Supreme Court of Louisiana affirmed in February 1960.
On June 19, 1961, Mapp was announced. Immediately
thereafter petitioner filed an application for habeas corpus
in the state court on the basis of Mapp. The writ being
denied in the Louisiana courts, he then filed a like appli-
cation in the United States District Court. After denial
there he appealed and the Court of Appeals affirmed.
It found the searches too remote from the arrest and
therefore illegal but held that the constitutional require-
ment of exclusion of the evidence under Mapp was not
retrospective. Petitioner has two points: (1) that the
Court of Appeals erred in holding that Mapp was not
retrospective; and (2) that even though Mapp be held not
to operate retrospectively, the search in his case was sub-
sequent to that in Mapp, and while his final conviction
was long prior to our disposition of it, his case should
nevertheless be governed by Mapp.
Initially we must consider the term “retrospective” for
the purposes of our opinion. A ruling which is purely
prospective does not apply even to the parties before the
773-305 0-65—44
p. 622court.3 See, e. g.,
England v. Louisiana State Board of
Medical Examiners, 375 U. S. 411 (1964). See also Great
Northern R. Co. v. Sunburst Oil & Refining Co.,
287 U. S.
358 (1932). However, we are not here concerned with
pure prospectivity since we applied the rule announced
in Mapp to reverse Miss Mapp’s conviction. That deci-
sion has also been applied to cases still pending on direct
review at the time it was rendered.4 Therefore, in this
case, we are concerned only with whether the exclusionary
principle enunciated in Mapp applies to state court con-
victions which had become final5 before rendition of our
opinion.
While to some it may seem “academic” it might be help-
ful to others for us to briefly outline the history and theory
of the problem presented.
At common law there was no authority for the proposi-
tion that judicial decisions made law only for the future.6
Blackstone stated the rule that the duty of the court was
not to “pronounce a new law, but to maintain and expound
3 It has been suggested that this Court is prevented by Article III
from adopting the technique of purely prospective overruling. Note,
71 Yale L. J. 907, 933 (1962). But see 1A Moore, Federal Practice
4082-4084 (2d ed. 1961); Currier, supra, n. 2, at 216-220. How-
ever, no doubt was expressed of our power under Article III in Eng-
land v. Louisiana State Board of Medical Examiners,
375 U. S. 411
(1964). See also
Griffin v. Illinois, 351 U. S. 12, 20 (1956) (concur-
ring opinion of Frankfurter, J.).
p. 623the old one.” 1 Blackstone, Commentaries 69 (15th ed.
1809).7 This Court followed that rule in
Norton v. Shelby
County, 118 U. S. 425 (1886),8 holding that unconstitu-
tional action “confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is, in legal
contemplation, as inoperative as though it had never been
passed.” At 442. The judge rather than being the cre-
ator of the law was but its discoverer. Gray, Nature
and Sources of the Law 222 (1st ed. 1909). In the case
of the overruled decision, Wolf v. Colorado, supra, here, it
was thought to be only a failure at true discovery and was
consequently never the law; while the overruling one,
Mapp, was not “new law but an application of what is,
and theretofore had been, the true law.” Shulman,
Retroactive Legislation, 13 Encyclopaedia of the Social
Sciences 355, 356 (1934).
On the other hand, Austin maintained that judges do
in fact do something more than discover law; they make
p. 624it interstitially by filling in with judicial interpretation
the vague, indefinite, or generic statutory or common-law
terms that alone are but the empty crevices of the law.
Implicit in such an approach is the admission when a
case is overruled that the earlier decision was wrongly
decided. However, rather than being erased by the later
overruling decision it is considered as an existing juridical
fact until overruled, and intermediate cases finally decided
under it are not to be disturbed.
The Blackstonian view ruled English jurisprudence and
cast its shadow over our own as evidenced by Norton n .
Shelby County, supra. However, some legal philosophers
continued to insist that such a rule was out of tune with
actuality largely because judicial repeal ofttime did “work
hardship to those who [had] trusted to its existence.”
Cardozo, Address to the N. Y. Bar Assn., 55 Rep. N. Y.
State Bar Assn. 263, 296-297 (1932). The Austinian view
gained some acceptance over a hundred years ago when
it was decided that although legislative divorces were
illegal and void, those previously granted were immunized
by a prospective application of the rule of the case.
Bingham v. Miller, 17 Ohio 445 (1848). And as early
as 1863 this Court drew on the same concept in Gelpcke
v. Dubuque,
1 Wall. 175 (1863). The Supreme Court of
Iowa had repeatedly held that the Iowa Legislature had
the power to authorize municipalities to issue bonds to
aid in the construction of railroads. After the City of
Dubuque had issued such bonds, the Iowa Supreme Court
reversed itself and held that the legislature lacked such
power. In Gelpcke, which arose after the overruling de-
cision, this Court held that the bonds issued under the
apparent authority granted by the legislature were col-
lectible. “However we may regard the late [overruling]
case in Iowa as affecting the future, it can have no effect
upon the past.” At 206. The theory was, as Mr. Justice
Holmes stated in Kuhn v. Fairmont Coal Co., 215 U. S.
p. 625349, 371 (1910), “that a change of judicial decision after
a contract has been made on the faith of an earlier one
the other way is a change of the law.” And in 1932
Mr. Justice Cardozo in Great Northern R. Co. v. Sunburst
Oil & Refining Co.,
287 U. S. 358, applied the Austinian
approach in denying a federal constitutional due process
attack on the prospective application of a decision of the
Montana Supreme Court. He said that a State “may
make a choice for itself between the principle of forward
operation and that of relation backward.” At 364. Mr.
Justice Cardozo based the rule on the avoidance of
“injustice or hardship” citing a long list of state and
federal cases supporting the principle that the courts had
the power to say that decisions though later overruled “are
law none the less for intermediate transactions.” At 364.
Eight years later Chief Justice Hughes in Chicot County
Drainage Dist. v. Baxter State Bank,
308 U. S. 371 (1940),
in discussing the problem made it clear that the broad
statements of Norton, supra, “must be taken with quali-
fications.” He reasoned that the actual existence of the
law prior to the determination of unconstitutionality “is
an operative fact and may have consequences which can-
not justly be ignored. The past cannot always be erased
by a new judicial declaration.” He laid down the rule
that the “effect of the subsequent ruling as to invalidity
may have to be considered in various aspects.” At 374.
One form of limited retroaction which differs some-
what from the type discussed above is that which was
established in United States v. Schooner Peggy, 1 Cranch
103 (1801). There, a schooner had been seized under an
order of the President which commanded that any armed
French vessel found on the high seas be captured. An
order of condemnation was entered on September 23,
1800. However, while the case was pending before this
Court the United States signed an agreement with France
providing that any property captured and not “defini-
p. 626Opinion of the Court. 381U. S.
tively condemned” should be restored. Chief Justice
Marshall said:
“It is in the general true that the province of an
appellate court is only to enquire whether a judgment
when rendered was erroneous or not. But if subse-
quent to the judgment and before the decision of the
appellate court, a law intervenes and positively
changes the rule which governs, the law must be
obeyed, or its obligation denied . . . [and] where
individual rights . . . are sacrificed for national pur-
poses . . . the court must decide according to exist-
ing laws, and if it be necessary to set aside a judg-
ment . . . which cannot be affirmed but in violation
of law, the judgment must be set aside.” At 110.
This same approach was subsequently applied in
instances where a statutory change intervened, Carpenter
v. Wabash R. Co., 309 U. S. 23 (1940); where a constitu-
tional amendment was adopted, United States v. Cham-
bers, 291 U. S. 217 (1934); 9 and where judicial decision
altered or overruled earlier case law, Vandenbark v.
Owens-Illinois Glass Co., 311 U. S. 538 (1941).10
p. 627Under our cases it appears (1) that a change in law
will be given effect while a case is on direct review,
Schooner Peggy, supra,11 and (2) that the effect of the
subsequent ruling of invalidity on prior final judgments
when collaterally attacked is subject to no set “principle
of absolute retroactive invalidity” but depends upon a
consideration of “particular relations . . . and particular
conduct ... of rights claimed to have become vested,
of status, of prior determinations deemed to have final-
ity” ; and “of public policy in the light of the nature both
of the statute and of its previous application.” Chicot
County Drainage Dist. v. Baxter State Bank, supra,
at 374.
That no distinction was drawn between civil and crim-
inal litigation is shown by the language used not only in
Schooner Peggy, supra, and Chicot County, supra, but
also in such cases as State v. Jones, 44 N. M. 623, 107
P. 2d 324 (1940) and
James v. United States, 366 U. S.
213 (1961). In the latter case, this Court laid down a
prospective principle in overruling Commissioner v. Wil-
cox,
327 U. S. 404 (1946), “in a manner that will not
prejudice those who might have relied on it.” 11 12 At 221.
p. 628Thus, the accepted rule today is that in appropriate cases
the Court may in the interest of justice make the rule
prospective. And “there is much to be said in favor of
such a rule for cases arising in the future.”
Mosser v.
Darrow, 341 U. S. 267, at 276 (dissenting opinion of
Black , J.).
While the cases discussed above deal with the invalidity
of statutes or the effect of a decision overturning long-
established common-law rules, there seems to be no im-
pediment—constitutional or philosophical—to the use of
the same rule in the constitutional area where the exi-
gencies of the situation require such an application. It
is true that heretofore, without discussion, we have ap-
plied new constitutional rules to cases finalized before the
promulgation of the rule.13 Petitioner contends that our
embezzled funds in taxable income was not a crime. However, Mr .
Just ic e Bla ck strongly disagreed with the prospective manner in
which the overruling was done.
“[O]ne of the great inherent restraints upon this Court’s departure
from the field of interpretation to enter that of lawmaking has been
the fact that its judgments could not be limited to prospective appli-
cation. This Court and in fact all departments of the Government
have always heretofore realized that prospective lawmaking is the
function of Congress rather than of the courts. We continue to think
that this function should be exercised only by Congress under our
constitutional system.”
366 U. S., at 225.
Compare the dissenting opinion of Mr . Just ic e Bla ck in Mosser v.
Darrow,
341 U. S. 267, 275 (1951), where he stated that a new rule of
trustee liability should not be applied retroactively. For discussion
of these cases see Currier, supra, n. 2; Note, 71 Yale L.
p. 629method of resolving those prior cases demonstrates that
an absolute rule of retroaction prevails in the area of con-
stitutional adjudication. However, we believe that the
Constitution neither prohibits nor requires retrospective
effect. As Justice Cardozo said, “We think the federal
constitution has no voice upon the subject.” 14
Once the premise is accepted that we are neither re-
quired to apply, nor prohibited from applying, a decision
retrospectively, we must then weigh the merits and de-
merits in each case by looking to the prior history of the
rule in question, its purpose and effect, and whether retro-
spective operation will further or retard its operation.
We believe that this approach is particularly correct with
reference to
the Fourth Amendment’s prohibitions as to
unreasonable searches and seizures. Rather than “dis-
paraging” the Amendment we but apply the wisdom of
Justice Holmes that “[t]he life of the law has not been
logic: it has been experience.” Holmes, The Common
Law 5 (Howe ed. 1963).15
Since Weeks v. United States,
232 U. S. 383 (1914),
this Court has adhered to the rule that evidence seized
by federal officers in violation of
the Fourth Amend-
coerced confession, was also applied to the petitioner who was here
on a collateral attack. See also
McNerlin v. Denno, 378 U. S. 575
(1964). It is also contended that
Reck v. Pate, 367 U. S. 433 (1961),
supports the conclusion of absolute retroactivity in the constitutional
area since the petitioner convicted in 1937 was released after a find-
ing that the confession was coerced when judged by standards set
forth in our cases decided subsequent to his conviction. See United
States ex rel. Angelet v. Fay,
333 F. 2d 12, 24 (dissenting opinion of
Marshall, J.).
p. 630ment is not admissible at trial in a federal court. In
1949 in Wolf v. Colorado, supra, the Court decided that
while the right to privacy—“the core of
the Fourth
Amendment”—was such a basic right as to be implicit
in “the concept of ordered liberty” and thus enforceable
against the States through
the Fourteenth Amendment,
“the ways of enforcing such a basic right raise ques-
tions of a different order. How such arbitrary conduct
should be checked, what remedies against it should be
afforded, the means by which the right should be made
effective, are all questions that are not to be so dog-
matically answered as to preclude the varying solutions
which spring from an allowable range of judgment on
issues not susceptible of quantitative solution.” At
27-28.
The Court went on to say that the federal exclusionary
rule was not “derived from the explicit requirements of
the Fourth Amendment .... The decision was a mat-
ter of judicial implication.” At 28. Since “we find that
in fact most of the English-speaking world does not re-
gard as vital to such protection the exclusion of evidence
thus obtained, we must hesitate to treat this remedy as an
essential ingredient of the right.”16 At 29. While
granting that “in practice” the exclusion of evidence might
be “an effective way of deterring unreasonable searches,”
the Court concluded that it could not “condemn as falling
below the minimal standards assured by the Due Process
Clause a State’s reliance upon other methods which, if
consistently enforced, would be equally effective.” At 31.
The continuance of the federal exclusionary rule was ex-
cused on the ground that the reasons for it were more
p. 632a mild shock, while if the shock is more serious, the states
must exclude the evidence or we will reverse the convic-
tion.” At 133-134. He strongly reaffirmed
Wolf stating:
“Now that the Wolf doctrine is known to them, state
courts may wish further to reconsider their eviden-
tiary rules. But to upset state convictions even
before the states have had adequate opportunity to
adopt or reject the rule would be an unwarranted use
of federal power.” At 134.
The opinion in dealing with the operation of the exclu-
sionary rule said that it “must be remembered that peti-
tioner is not invoking the Constitution to prevent or
punish a violation of his federal right recognized in
Wolf . . . . He is invoking it only to set aside his own
conviction of crime. . . . Rejection of the evidence
does nothing to punish the wrong-doing official, while it
may, and likely will, release the wrong-doing defend-
ant. . . . [It] does nothing to protect innocent per-
sons who are the victims of illegal but fruitless searches.”
At 136. Admitting the futility of other remedies
available to the victims of illegal searches, Mr. Justice
Jackson and the then Chief Justice suggested that the
“Clerk of this Court should be directed to forward a copy
of the record in this case, together with a copy of this opin-
ion, for attention of the Attorney General of the United
States” with a view to prosecution under the Civil Rights
Act, 62 Stat. 696, 18 U. S. C. §
242 (1958 ed.). In
concurring in the judgment in
Irvine the writer of this
opinion indicated his displeasure with Wolf but observed
that since the Court “still refuses today” to overrule
it he felt bound by Wolf but had hopes that “strict
adherence to the tenor of that decision may produce
needed converts for its extinction.” At 138-139. The
Court continued to broaden the rule of exclusion when,
in 1956, it held that a federal agent might be enjoined
from transferring to state authorities evidence that he
p. 633had seized on an illegal federal warrant, or testifying
with regard to it in a state prosecution.
Rea v. United
States, 350 U. S. 214. In 1960 the Court’s dissatisfaction
with the “silver platter” doctrine,
Lustig v. United States,
supra, led to its rejection in the leading case of
Elkins v.
United States, 364 U. S. 206. The factual situation be-
ing the converse of Rea v. United States, supra, the Court
tightened the noose of exclusion in order to strangle com-
pletely the use in the federal courts of evidence illegally
seized by state agents. It was in Elkins that the Court
emphasized that the exclusionary rule was “calculated
to prevent, not to repair. Its purpose is to deter—to
compel respect for the constitutional guaranty in the
only effectively available way—by removing the incentive
to disregard it.” 17 At 217.
Mapp was announced in 1961. The Court in consider-
ing “the current validity of the factual grounds upon
which Wolf was based” pointed out that prior to Wolf
“almost two-thirds of the States were opposed to the use
of the exclusionary rule, now, despite the Wolf case, more
than half of those since passing upon it . . . have wholly
or partly adopted or adhered to the Weeks rule.” At
651. We then cited California as typical of those
adopting the rule since Wolf. It was “ ‘compelled to
reach that conclusion,’ ” we said, quoting California’s
highest court, “ ‘because other remedies have completely
failed to secure compliance with the constitutional pro-
visions . . . .’ People v. Cahan, 44 Cal. 2d 434 . . . .”
We went on to find that “[t]he experience of California
that such other remedies have been worthless and futile
is buttressed by the experience of other States. The ob-
vious futility of relegating
the Fourth Amendment to the
protection of other remedies has, moreover, been recog-
p. 634nized by this Court since Wolf. See Irvine v. Cali-
fornia ....” At 652-653. In discussing People v. Def ore,
242 N. Y. 13, 150 N. E. 585, upon which Wolf heavily
relied, we concluded that “Likewise, time has set its face
against what Wolf called the ‘weighty testimony’ of Peo-
ple v. Defore . . . ‘that [t]he Federal rule as it stands is
either too strict or too lax.’ 242 N. Y., at 22.” At 653.
We concluded that “the force of that reasoning has been
largely vitiated by later decisions of this Court,” at 653,
which had closed all of the courtroom doors “open to evi-
dence secured by official lawlessness . . .” save that of
the state courts. At 655. That door was closed by Mapp.
In recapitulation, we found in Mapp that Wolf rested
on these grounds. First, that the “contrariety of views
of the States” as to the use of the exclusionary rule was
“particularly impressive.” Second, “ ‘other means of pro-
tection’ [of
Fourth Amendment rights] ha[d] been
afforded” than the exclusionary rule. And, third, the
“weighty testimony” of People v. Defore, supra. As to
the first, we found the lineup of the States as to the exclu-
sionary rule had shifted to where a majority favored it;
as to the second, that the other means of protection had
proven to be “worthless and futile” and had not reduced
the incidence of police lawlessness during the 12 years
since Wolf was announced but that Wolf had operated as
a license for police illegality; and, as to the third, that our
cases subsequent to Mapp had completely closed the lax-
ity in the federal exclusionary rule complained of in
People v. Defore, supra. We also affirmatively found that
the exclusionary rule was “an essential part of both the
Fourth and
Fourteenth Amendments” and the only effec-
tive remedy for the protection of rights under
the Fourth
Amendment; that it would stop the needless “shopping
around” that was causing conflict between federal and
state courts, as was permitted in
Wilson v. Schnettler, 365
U. S. 381 (1961); that it would withdraw the invitation
p. 635which Wolf extended to federal officers to step across the
street to the state’s attorney with their illegal evidence,
thus eliminating a practice which tended to destroy the
entire system of constitutional restraints on which the
liberties of the people rest; that it would promote state-
federal cooperation in law enforcement by rejecting the
double standard of admissibility of illegal evidence which
tends to breed suspicion among the officers, encourages
disobedience to the Constitution on the part of all the
participants and violates “the imperative of judicial in-
tegrity.” Mapp v. Ohio, supra, at 657-660. In short, just
as other cases had found the exclusionary rule to be a de-
terrent safeguard necessary to the enforcement of the
Amendment,
Silverthorne Lumber Co. v. United States,
251 U. S. 385 (1920), Mapp bottomed its rule on its
necessity as a “sanction upon which [
the Fourth Amend-
ment’s] protection and enjoyment had always been
deemed dependent under the Boyd,
Weeks and Silver-
thorne cases.” At 655. Mapp’s, rationale was that since
Wolf we had on an ad hoc basis been led to exclude all
evidence in both state and federal courts where a federal
agent had participated in the illegal search. Only a few
States had made any changes in their rule of admissibility
since Wolf and many of those not following the federal
exclusionary rule were, in effect, using Wolf as a license to
violate
the Fourth Amendment’s proscription of unrea-
sonable searches and seizures as applied to the States by
the Wolf case itself. As we noted in Mapp “further delay
in [applying the exclusionary rule to the States] could
have no effect other than to compound the difficulties”;
a definitive continuance of Wolf might have increased
the number of cases involving illegal searches in non-
exclusionary States and also enticed those in the exclu-
sionary column to reverse their position, as some States
had done prior to Mapp.
p. 636We believe that the existence of the Wolf doctrine prior
to Mapp is “an operative fact and may have consequences
which cannot justly be ignored. The past cannot always
be erased by a new judicial declaration.” Chicot County
Drainage Dist. v. Baxter State Bank, supra, at 374. The
thousands of cases that were finally decided on Wolf can-
not be obliterated. The “particular conduct, private and
official,” must be considered. Here “prior determinations
deemed to have finality and acted upon accordingly” have
“become vested.” And finally, “public policy in the light
of the nature both of the . . . [Wolf doctrine] and of
its previous application” must be given its proper weight.
Ibid. In short, we must look to the purpose of the Mapp
rule; the reliance placed upon the Wolf doctrine; and
the effect on the administration of justice of a retro-
spective application of Mapp.
It is clear that the Wolf Court, once it had found
the
Fourth Amendment’s unreasonable Search and Seizure
Clause applicable to the States through the Due Process
Clause of
the Fourteenth Amendment, turned its atten-
tion to whether the exclusionary rule was included within
the command of
the Fourth Amendment. This was de-
cided in the negative. It is clear that based upon the fac-
tual considerations heretofore discussed the Wolf Court
then concluded that it was not necessary to the enforce-
ment of
the Fourth Amendment for the exclusionary rule
to be extended to the States as a requirement of due
process. Mapp had as its prime purpose the enforce-
ment of
the Fourth Amendment through the inclusion of
the exclusionary rule within its rights. This, it was
found, was the only effective deterrent to lawless police
action. Indeed, all of the cases since Wolf requiring
the exclusion of illegal evidence have been based on
the necessity for an effective deterrent to illegal police
p. 637action. See, e. g., Rea v. United States, supra. We can-
not say that this purpose would be advanced by making
the rule retrospective. The misconduct of the police
prior to Mapp has already occurred and will not be cor-
rected by releasing the prisoners involved. Nor would it
add harmony to the delicate state-federal relationship of
which we have spoken as part and parcel of the purpose of
Mapp. Finally, the ruptured privacy of the victims’
homes and effects cannot be restored. Reparation comes
too late.
It is true that both the accused and the States relied
upon Wolf. Indeed, Wolf and Irvine each pointed the
way for the victims of illegal searches to seek reparation
for the violation of their privacy. Some pursued the
same. See
Monroe v. Pape, 365 U. S. 167 (1961). In
addition, in Irvine, a flag in a concurring opinion warned
that Wolf was in stormy weather. On the other hand,
the States relied on Wolf and followed its command.
Final judgments of conviction were entered prior to
Mapp. Again and again this Court refused to reconsider
Wolf and gave its implicit approval to hundreds of cases
in their application of its rule. In rejecting the Wolf doc-
trine as to the exclusionary rule the purpose was to deter
the lawless action of the police and to effectively enforce
the Fourth Amendment. That purpose will not at this
late date be served by the wholesale release of the guilty
victims.
Finally, there are interests in the administration of
justice and the integrity of the judicial process to consider.
To make the rule of Mapp retrospective would tax the
administration of justice to the utmost. Hearings would
have to be held on the excludability of evidence long since
destroyed, misplaced or deteriorated. If it is excluded,
the witnesses available at the time of the original trial
will not be available or if located their memory will be
dimmed. To thus legitimate such an extraordinary
773-305 0-65-45
p. 638procedural weapon that has no bearing on guilt would
seriously disrupt the administration of justice.
It is urged, however, that these same considerations
apply in the cases that we have applied retrospectively in
other areas,18 notably that of coerced confessions, and that
the Mapp exclusionary rule should, therefore, be given
the same dignity and effect. Two cases are cited,
Fay v.
Noia, 372 U. S. 391 (1963), and
Reck v. Pate, 367 U. S.
433 (1961), but neither is apposite. It is said that we
ordered new trials 25 years after conviction in the latter
and after the lapse of 21 years in the former. This time
table is true but that is all. The principle that a coerced
confession is not admissible in a trial predated the arrests
as well as the original convictions in each of these cases.
See
Brown v. Mississippi, 297 U. S. 278 (1936). There
was no question of retrospective operation involved in
either case. Moreover, coerced confessions are excluded
from evidence because of “a complex of values,” Black-
burn v. A labama,
361 U. S. 199 (1960), including “the like-
lihood that the confession is untrue”; “the preservation
of the individual’s freedom of will”; and “‘[t]he ab-
horrence of society to the use of involuntary confes-
sions.’ ” At 207. Cited with approval in Jackson v.
Denno,
378 U. S. 368, 385-386 (1964). But there is no
likelihood of unreliability or coercion present in a search-
and-seizure case. Rather than being abhorrent at the
time of seizure in this case, the use in state trials of il-
legally seized evidence had been specifically authorized
by this Court in Wolf.19 Furthermore, in Noia, the con-
fession was admittedly coerced and the sole issue involved
the availability of federal habeas corpus in a state convic-
p. 639tion, where state post-conviction remedies had been ex-
hausted but the accused had failed to appeal from his
original conviction. Nothing of that kind is involved here
and this holding has no bearing whatever on Noia or
Reck, for that matter. Finally, in each of the three areas
in which we have applied our rule retrospectively 20 the
principle that we applied went to the fairness of the
trial—the very integrity of the fact-finding process.
Here, as we have pointed out, the fairness of the trial is
not under attack. All that petitioner attacks is the ad-
missibility of evidence, the reliability and relevancy of
which is not questioned, and which may well have had
no effect on the outcome.
Nor can we accept the contention of petitioner that the
Mapp rule should date from the day of the seizure there,
rather than that of the judgment of this Court. The
date of the seizure in Mapp has no legal significance.
It was the judgment of this Court that changed the rule
and the date of that opinion is the crucial date. In the
light of the cases of this Court this is the better cutoff
time. See United States v.
Schooner Peggy, supra.
All that we decide today is that though the error com-
plained of might be fundamental it is not of the nature
p. 640Bla ck, J., dissenting. 381 U. S.
requiring us to overturn all final convictions based upon
it. After full consideration of all the factors we are not
able to say that the Mapp rule requires retrospective
application.
Affirmed.
Mr . Justic e Black , with whom Mr . Justi ce Douglas
joins, dissenting.
The Court of Appeals held, and this Court now con-
cedes, that the petitioner Linkletter is presently in prison
serving a nine-year sentence at hard labor for burglary
under a 1959 Louisiana State Court conviction obtained
by use of evidence unreasonably seized in violation of the
Fourth and Fourteenth Amendments. On June 19, 1961,
we decided Mapp v. Ohio, 367 U. S. 643, in which the
Court specifically held that “all evidence obtained by
searches and seizures in violation of the Constitution is,
by that same authority, inadmissible in a state court.”
367 U. S., at 655. Stating that this Court had previously
held in Wolf v. Colorado, 338 U. S. 25, that the Fourth
Amendment was applicable to the States through the Due
Process Clause of the Fourteenth Amendment, this Court
in Mapp went on to add:
“In short, the admission of the new constitutional
right by Wolf could not consistently tolerate denial
of its most important constitutional privilege,
namely, the exclusion of the evidence which an ac-
cused had been forced to give by reason of the unlaw-
ful seizure. To hold otherwise is to grant the right
but in reality to withhold its privilege and enjoy-
ment.” 367 U. S., at 656.
Despite the Court’s resounding promises throughout the
Mapp opinion that convictions based on such “unconsti-
tutional evidence” would “ ‘find no sanction in the judg-
p. 641ments of the courts,’ ” Linkletter, convicted in the state
court by use of “unconstitutional evidence,” is today
denied relief by the judgment of this Court because his
conviction became “final” before Mapp was decided.
Linkletter must stay in jail; Miss Mapp, whose offense
was committed before Linkletter’s, is free. This different
treatment of Miss Mapp and Linkletter points up at once
the arbitrary and discriminatory nature of the judicial
contrivance utilized here to break the promise of Mapp
by keeping all people in jail who are unfortunate enough
to have had their unconstitutional convictions affirmed
before June 19, 1961.
Miss Mapp’s Ohio offense was committed May 23,
1957; Linkletter’s Louisiana offense occurred more than
a year later—August 16, 1958. Linkletter was tried in
Louisiana, convicted, the State Supreme Court affirmed,
and a rehearing was denied March 21, 1960, all within
about one year and seven months after his offense was
committed. The Ohio Supreme Court affirmed Miss
Mapp’s conviction March 23, 1960, approximately two
years and 10 months after her offense. Thus, had the
Ohio courts proceeded with the same expedition as those
in Louisiana, or had the Louisiana courts proceeded as
slowly as the Ohio courts, Linkletter’s conviction would
not have been “finally” decided within the Court’s defi-
nition of “finally” until within about 10 days of the time
Miss Mapp’s case was decided in this Court—which
would have given Linkletter ample time to petition this
Court for virtually automatic relief on direct review after
the Mapp case was decided. The Court offers no de-
fense based on any known principle of justice for dis-
criminating among defendants who were similarly con-
victed by use of evidence unconstitutionally seized. It
certainly cannot do so as between Linkletter and Miss
Mapp. The crime with which she was charged took
p. 642place more than a year before his, yet the decision
today seems to rest on the fanciful concept that the
Fourth Amendment protected her 1957 offense against
conviction by use of unconstitutional evidence but de-
nied its protection to Linkletter for his 1958 offense.
In making this ruling the Court assumes for itself the
virtue of acting in harmony with a comment of Justice
Holmes that “[t]he life of the law has not been logic:
it has been experience.” 1 Justice Holmes was not there
talking about the Constitution; he was talking about
the evolving judge-made law of England and of some of
our States whose judges are allowed to follow in the com-
mon law tradition. It should be remembered in this con-
nection that no member of this Court has ever more seri-
ously criticized it than did Justice Holmes for reading
its own predilections into the “vague contours” of the
Due Process Clause.1 2 But quite apart from that, there
is no experience of the past that justifies a new Court-
made rule to perpetrate a grossly invidious and unfair dis-
crimination against Linkletter simply because he hap-
pened to be prosecuted in a State that was evidently well
up with its criminal court docket. If this discrimination
can be excused at all it is not because of experience but
because of logic—sterile and formal at that—not, accord-
ing to Justice Holmes, the most dependable guide in
lawmaking.
When we get beyond the way the new rule works as
between people situated like Linkletter and Miss Mapp,
the new contrivance stands no better. I say “new” be-
cause the Court admits, as it must, that “It is true that
heretofore, without discussion, we have applied new con-
stitutional rules to cases finalized before the promulgation
of the rule.” Ante, p. 628. And the Court also refers to
p. 643a number of cases in which that practice has been fol-
lowed. For example, in
Griffin v. Illinois, 351 U. S. 12,
where we announced that a pauper could not be denied
the right to appeal because of his indigency, a suggestion
was made in a concurring opinion that the Court should
apply its new rule to future cases only.
Id., at 25-26.
However, in 1958 this Court did apply the Griffin rule to
a conviction obtained in 1935, over the dissents of two
Justices who said that the Griffin case decided in 1956
should not determine the constitutionality of the peti-
tioner’s 1935 conviction.
Eskridge v. Washington, 357
U. S. 214.
Interesting as the question may be abstractly, this case
should not be decided on the basis of arguments about
whether judges “make” law or “discover” it when per-
forming their duty of interpreting the Constitution.
This Court recognized in Chicot County Drainage Dis-
trict v. Baxter State Bank,
308 U. S. 371, 374, an opinion
in which I joined, that “an all-inclusive statement of
a principle of absolute retroactive invalidity cannot be
justified.” And where state courts in certain situa-
tions chose to apply their decisions to the future only,
this Court also said that, “the federal constitution has no
voice” forbidding them to do so. Great Northern R. Co.
v.
Sunburst Oil & Ref. Co.,
287 U. S. 358, 364. But cf.
Kuhn v. Fairmont Coal Co.,
215 U. S. 349, 372 (dissent-
ing opinion). In stating this Court’s position on the
question, the opinion in the Chicot County case recog-
nized that rights and interests may have resulted from
the existence and operation of a statute which should
be respected notwithstanding its later being declared
unconstitutional:
“The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as
to invalidity may have to be considered in various
aspects,—with respect to particular relations, indi-
p. 644victual and corporate, and particular conduct, private
and official. Questions of rights claimed to have
become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly,
of public policy in the light of the nature both of the
statute and of its previous application, demand
examination.” 308 U. S., at 374.
Thus in Mosser v. Darrow, 341 U. S. 267, when this Court
created an entirely new rule imposing heavy financial lia-
bility on a trustee in bankruptcy for acts which at the
time he performed them had been perfectly valid under
the law, I dissented, stating my belief that although there
was “much to be said in favor of such a rule [of trustee
liability] for cases arising in the future,” 341 U. S., at
276, it should not be applied against trustees who had in
good faith relied on the existence of a different rule in the
past. On the other hand, in James v. United States, 366
U. S. 213,1 suggested in an opinion in which Mr . Just ice
Douglas joined, that there were objections having a
peculiar force in the field of criminal law to a judicial
rule to the effect that courts “should make their decisions
as to what the law is apply only prospectively.” A major
basis for what we said there was stated this way:
“Our trouble with this aspect of the Court’s action
is that it seems to us to indicate that the Court has
passed beyond the interpretation of the tax statute
and proceeded substantially to amend it.
“In our judgment one of the great inherent re-
straints upon this Court’s departure from the field of
interpretation to enter that of lawmaking has been
the fact that its judgments could not be limited to
prospective application.” 366 U. S., at 224-225.
I adhere to my views in James, expressing opposition to a
general rule that would always apply new interpretations
p. 645of criminal laws prospectively. Doubtless there might be
circumstances in which applying a new interpretation of
the law to past events might lead to unjust consequences
which, as we said in Chicot, “cannot justly be ignored.”
No such unjust consequences to Linkletter, however, can
possibly result here by giving him and others like him the
benefit of a changed constitutional interpretation where he
is languishing in jail on the basis of evidence concededly
used unconstitutionally to convict him. And I simply
cannot believe that the State of Louisiana has any “vested
interest” that we should recognize in these circumstances
in order to keep Linkletter in jail. I therefore would fol-
low this Court’s usual practice and apply the Mapp rule
to unconstitutional convictions which have resulted in
persons being presently in prison.
In refusing to give Linkletter the benefit of the Mapp
rule, the Court expresses the view that its “approach is
particularly correct with reference to
the Fourth Amend-
ment’s prohibitions as to unreasonable searches and sei-
zures,” indicating a disparaging view of
the Fourth
Amendment that leaves me somewhat puzzled after Mapp
and other recent opinions talking about the indispensable
protections of the Amendment. Ante, p. 629. Then the
Court goes on to follow a recent pattern of balancing away
Bill of Rights guarantees and balances away3 in great part
the Fourth Amendment safeguards one could reasonably
have expected from the Mapp opinion and the opinion in
Fay v. Noia, 372 U. S. 391, which opened up to collateral
attack all unconstitutional convictions even though
“final.” Even using the Court’s own balancing process,
however, I think those now in prison under convictions
resting on the use of unconstitutionally seized evidence
should have their convictions set aside and be granted
new trials conducted in conformity with the Constitution.
p. 646As the Court concedes, ante, p. 628, this is the first
instance on record where this Court, having jurisdiction,
has ever refused to give a previously convicted defendant
the benefit of a new and more expansive Bill of Rights
interpretation. I am at a loss to understand why those
who suffer from the use of evidence secured by a search
and seizure in violation of the Fourth Amendment should
be treated differently from those who have been denied
other guarantees of the Bill of Rights. Speaking of the
right guaranteed by the Fourth and Fifth Amendments
not to be convicted on “unconstitutional evidence,” the
Court said in Mapp, only four years ago, that:
“. . . we can no longer permit that right to remain
an empty promise. Because it is enforceable in the
same manner and to like effect as other basic rights
secured by the Due Process Clause, we can no longer
permit it to be revocable at the whim of any police
officer who, in the name of law enforcement itself,
chooses to suspend its enjoyment. Our decision,
founded on reason and truth, gives to the individual
no more than that which the Constitution guaran-
tees him . . . 367 U. S., at 660. (Emphasis
supplied.)
Linkletter was convicted on “unconstitutional evidence.”
He brought this federal habeas corpus proceeding seeking
relief from his prior conviction, which this Court held in
Fay v. Noia, 372 U. S. 391, was the proper way to chal-
lenge a previous conviction unconstitutionally obtained.
Evidence used against Noia, however, was not obtained
by an unlawful search and seizure but by a coerced confes-
sion. Noia’s conviction had taken place 21 years before
his case reached this Court, and was therefore “final.”
And in Reck v. Pate, 367 U. S. 433, decided in 1961, this
p. 647Court set aside the conviction of Reck for a 1936 offense
on the ground that a coerced confession had been used
against him.
There are peculiar reasons why the Mapp search and
seizure exclusionary rule should be given like dignity and
effect as the coerced confession exclusionary rule. Quite
apart from the Court’s positive statement in Mapp that
the right guaranteed by the Fourth and
Fifth Amend-
ments not to be convicted through use of unconstitution-
ally seized evidence should be given “like effect as other
basic rights secured by the Due Process Clause . . . ,”
Mapp, like most other search and seizure exclusionary rule
cases, relied heavily on
Boyd v. United States, 116 U. S.
616. In reaching the conclusion in Boyd that evidence ob-
tained by unlawful search and seizure could not be admit-
ted in evidence, the Boyd Court relied on
the Fifth
Amendment’s prohibition against compelling a man to
be a witness against himself. The Boyd Court held
that
the Fifth Amendment’s prohibition against self-
incrimination gave constitutional justification to exclusion
of evidence obtained by an unlawful search and seizure.
The whole Court4 treated such a search and seizure
as compelling the person whose property was thus taken
to give evidence against himself. There was certainly
nothing in the Boyd case to indicate that the Fourth and
Fifth Amendments were to be given different dignity and
respect in determining what, when and under what cir-
cumstances persons are entitled to their full protection.
See
One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S.
693, 703 (concurring opinion).
p. 648This Court’s opinion in Mapp not only by the express
language already quoted but in numerous other places
treated the two amendments as inseparable from the
standpoint of the exclusionary rule. Speaking of the two,
the Court said:
“[T]he very least that together they assure in
either sphere is that no man is to be convicted on
unconstitutional evidence.” 367 U. S., at 657.
Again the Court said in Mapp that:
“‘[C]onviction by means of unlawful seizures and
enforced confessions . . . should find no sanction in
the judgments of the courts ....’” Id., at 648.
This statement appearing in Mapp had originally been
made in Weeks v. United States, 232 U. S. 383, 392.
Weeks, which established the federal exclusionary rule
for the first time, did so by relying greatly on the Boyd
case and Boydls treatment of unlawful seizures and en-
forced confessions as falling into precisely the same consti-
tutional category. Yet the Court today by a chain of
circuitous reasoning degrades the search and seizure exclu-
sionary rule to a position far below that of the rule
excluding evidence obtained by coerced confessions. The
result is that this departure from the philosophy of Mapp
denies Linkletter a right to challenge his conviction for
an offense committed in August 1958 while it leaves Miss
Mapp free because of an offense she committed in 1957.
One reason—perhaps a basic one—put forward by the
Court for its refusal to give Linkletter the benefit of the
search and seizure exclusionary rule is the repeated state-
ment that the purpose of that rule is to deter sheriffs,
policemen, and other law officers from making unlawful
p. 649searches and seizures. The inference I gather from these
repeated statements is that the rule is not a right or priv-
ilege accorded to defendants charged with crime but is a
sort of punishment against officers in order to keep them
from depriving people of their constitutional rights. In
passing I would say that if that is the sole purpose,
reason, object and effect of the rule, the Court’s action
in adopting it sounds more like law-making than con-
struing the Constitution. Compare
Mapp v. Ohio, 367
U. S. 643, 661 (concurring opinion). Both the majority
and the concurring members of the Boyd Court seemed
to believe they were construing the Constitution. Quite
aside from that aspect, however, the undoubted impli-
cation of today’s opinion that the rule is not a safeguard
for defendants but is a mere punishing rod to be applied to
law enforcement officers is a rather startling departure
from many past opinions, and even from Mapp itself.
Mapp quoted from the Court’s earlier opinion in Weeks v.
United States, supra, certainly not with disapproval,
saying that the Court “in that case clearly stated that use
of the seized evidence involved ‘a denial of the constitu-
tional rights of the accused.’ ”
367 U. S., at 648. I have
read and reread the Mapp opinion but have been unable to
find one word in it to indicate that the exclusionary search
and seizure rule should be limited on the basis that it was
intended to do nothing in the world except to deter officers
of the law. Certainly no such limitation is implied by
the Court’s statement in Mapp that without the rule:
“[T]he assurance against unreasonable . . . searches
and seizures would be ‘a form of words,’ valueless
and undeserving of mention in a perpetual charter of
inestimable human liberties . . . .”
367 U. S., at 655.
The Court went on to indicate its belief that the rule was
“ ‘implicit in the concept of ordered liberty,’ ”
id., at 655,
p. 650Bla ck, J., dissenting. 381 IT. S.
and that it is an “essential ingredient” of the constitu-
tional guarantee. Id., at 651. If the exclusionary rule
has the high place in our constitutional plan of “ordered
liberty,” which this Court in Mapp and other cases has so
frequently said that it does have, what possible valid
reason can justify keeping people in jail under convictions
obtained by wanton disregard of a constitutional protec-
tion which the Court itself in Mapp treated as being one
of the “constitutional rights of the accused”?
The Court says that the exclusionary rule’s purpose of
preventing law enforcement officers from making lawless
searches and seizures “will not at this late date be served
by the wholesale release of the guilty victims.” Ante,
p. 637. It has not been the usual thing to cut down trial
protections guaranteed by the Constitution on the basis
that some guilty persons might escape. There is prob-
ably no one of the rights in the Bill of Rights that does
not make it more difficult to convict defendants. But all
of them are based on the premise, I suppose, that the Bill
of Rights’ safeguards should be faithfully enforced by the
courts without regard to a particular judge’s judgment as
to whether more people could be convicted by a refusal of
courts to enforce the safeguards. Such has heretofore
been accepted as a general maxim. In answer to an argu-
ment made in the Mapp case, that application of the ex-
clusionary rule to the States might allow guilty criminals
to go free, this Court conceded that:
“In some cases this will undoubtedly be the re-
sult. . . . The criminal goes free, if he must, but it
is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe
its own laws, or worse, its disregard of the charter of
its own existence.” Mapp v. Ohio, supra, at 659.
p. 651The Court says that:
“To make the rule of Mapp retrospective would
tax the administration of justice to the utmost.
Hearings would have to be held on the excludability
of evidence long since destroyed, misplaced or deteri-
orated. If it is excluded, the witnesses available at
the time of the original trial will not be available or
if located their memory will be dimmed. To thus
legitimate such an extraordinary procedural weapon
that has no bearing on guilt would seriously disrupt
the administration of justice.” Ante, pp. 637-638.
This same argument would certainly apply with much
force to many cases we have heard in the past including
Reck v. Pate, supra, and Fay v. Noia, supra. Reck was
directed to be given a new trial 25 years after his offense
and Noia 21 years after conviction. Both were given
relief under just “such an extraordinary procedural
weapon” as the Court seems today to inveigh against.
Indeed in Noia’s case this Court went to great lengths
to explain in an exhaustive and in what I consider to be
a very notable and worthwhile opinion that habeas corpus
was designed to go behind “final” judgments and release
people who were held on convictions obtained by reason
of a denial of constitutional rights. A glance at the briefs
and this Court’s opinions in both Reck and Noia will
reveal that this Court rejected precisely the same kind
of arguments and reasoning that I have just quoted from
the Court’s opinion justifying its judgment in this case.
What the Court held in Noia did not, as the dissenting
Justice charged it would, seriously disrupt the administra-
tion of justice.5 It merely opened up to collateral review
cases of men who were in prison due to convictions where
5See
Fay v. Noia, 372 U. S. 391, 445 (Cla rk , J., dissenting).
p. 652their constitutional rights had been disregarded. Noia
rested on the sound principle that people in jail, without
regard to when they were put there, who were convicted
by the use of unconstitutional evidence were entitled in
a government dedicated to justice and fairness to be al-
lowed to have a new trial with the safeguards the
Constitution provides.
Little consolation can be gathered by people who lan-
guish in jail under unconstitutional convictions from the
Court’s statement that “the ruptured privacy of the vic-
tims’ homes and effects cannot be restored. Reparation
comes too late.” Ante, p. 637. Linkletter is still in jail.
His claim is no more “too late” than was Noia’s.6
The plain facts here are that the Court’s opinion cuts
off many defendants who are now in jail from any hope
of relief from unconstitutional convictions. The opinion
today also beats a timid retreat from the wholesome and
refreshing principles announced in Noia. No State should
be considered to have a vested interest in keeping pris-
oners in jail who were convicted because of lawless con-
duct by the State’s officials. Careful analysis of the
Court’s opinion shows that it rests on the premise that
a State’s assumed interest in sustaining convictions ob-
tained under the old, repudiated rule outweighs the in-
terests both of that State and of the individuals convicted
p. 653in having wrongful convictions set aside. It certainly
offends my sense of justice to say that a State holding
in jail people who were convicted by unconstitutional
methods has a vested interest in keeping them there
that outweighs the right of persons adjudged guilty of
crime to challenge their unconstitutional convictions at
any time. No words can obscure the simple fact that the
promises of Mapp and Noia are to a great extent broken
by the decision here. I would reverse.
773-305 0-65-46