U.S. Supreme Court

Williams v. United States,401U.S. 646 (1971)Williams v. UnitedStates

No. 81

Argued October 21,1970

Decided April 5, 1971401U.S. 646ast|>*

401U.S. 646

CERTIORARI TO THE UNITED STATESCOURT OF APPEALS

FOR THE NINTHCIRCUIT

Syllabus

In No. 81, here on direct review, petitioner was convicted ofselling narcotics after a trial in which heroin seized in a searchincident to his arrest was introduced into evidence. The Court ofAppeals affirmed, holding that the intervening decision inChimel v. California,395 U. S. 752,narrowing the scope of permissible searches incident to arrest, wasnot to be retroactively applied to searches antedating the date itwas decided, and that the search was valid underpre-Chimel law. Evidence at the trial of petitioner in No.82 included marked bills seized during a pre-Chimel searchof his apartment following his arrest on narcotics charges. Thearrest and search were upheld at trial, on direct appeal, and inthe District Court and Court of Appeals in proceedings under 28U.S.C. § 2255.

Held: The judgments are affirmed. Pp.401 U. S.649-666,401 U. S.699-700.

No. 81, 418 F.2d 159, and No. 82, affirmed.

MR. JUSTICE WHITE, joined by THE CHIEF JUSTICE, MR. JUSTICESTEWART, and MR. JUSTICE BLACKMUN, concluded thatChimel,supra, is not retroactive, and should not be applied tosearches conducted prior to the date of that decision. Pp.401 U. S.649-659.

(a) Where the major purpose of a new constitutional standard isnot to overcome an aspect of a criminal trial that substantiallyimpairs the truthfinding function and thus raises serious questionsabout the accuracy of guilty verdicts in past trials, the new ruledoes not require retrospective application. P.401 U. S.653.

(b) The Constitution does not require that pre-Chimelsearches be measured by the newChimel standards,Desist v. United States,394 U. S. 244.Petitioners' rights under then-existing law were not violatedeither before or during trial, it is not claimed that the evidencewas constitutionally insufficient to prove guilt, and the purposeof the exclusionary rule will be sufficiently implemented byapplyingChimel to searches occurring after the date ofdecision in that case. P.401 U. S.656.

Page 401 U. S. 647

(c) There is no constitutional difference between theapplicability ofChimel to convictions here on directappeal and those involving collateral proceedings, or betweenfederal and state prisoners. Pp.401 U. S.656-659.

MR. JUSTICE BRENNAN concluded that the question is not whetherevery person convicted through evidence obtained contrary toChimel, supra, is guilty, but rather whetherChimel compels the conclusion that the invasion ofpetitioners' privacy, conducted in justifiable but mistakenreliance upon the continuing validity of pre-Chimelstandards, requires the exclusion of the fruits of that invasionfrom the factfinding process. He agreed with the plurality opinionthat it does not, and that theChimel rule should not beapplied retroactively. Pp.401 U. S. 660-665.

MR. JUSTICE BLACK concurred in the result on the ground thatChimel, supra, was wrongly decided. P.401 U. S.660.

MR. JUSTICE HARLAN concluded that the judgment should beaffirmed in No. 82, here on collateral review, as the search inthat case should not be subjected to the requirements ofChimel, supra, since petitioner's conviction became finalprior toChimel, then-prevailing law validated the search,and the conviction was obtained by methods not fundamentallyunfair. Pp.401 U. S.699-700.

MR. JUSTICE MARSHALL concluded that the judgment in No. 82should be affirmed, as the mode of analysis in the pluralityopinion is appropriate in cases here on collateral review, and theChimel rule should not be applied retroactively in suchcases. Pp.401 U. S.665-666.

WHITE, J., announced the Court's judgment and delivered anopinion, in which BURGER, C.J., and STEWART and BLACKMUN, JJ.,joined. STEWART, J., filed a separate statement,post, p.401 U. S. 660.BRENNAN, J., filed an opinion concurring in the result,post, p.401 U. S. 660.HARLAN, J., filed an opinion concurring in the judgment in No. 82and dissenting in No. 81,post, p.401 U. S. 675.MARSHALL, J., filed an opinion concurring in part and dissenting inpart,post, p.401 U. S. 665.BLACK, J., filed a statement concurring in the result,post, p.401 U. S. 660.DOUGLAS, J., took no part in the consideration or decision of thesecases.

Page 401 U. S. 648

MR. JUSTICE WHITE announced the judgment of the Court and anopinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR.JUSTICE BLACKMUN join.

The principal question in these cases is whetherChimel v.California,395 U. S. 752(1969), should be applied retroactively either to the direct reviewof petitioner Williams' conviction or in the collateral proceedinginitiated by petitioner Elkanich.

IIn No. 81, federal agents, on March 31, 1967, secured a warrantto arrest petitioner Williams on charges of selling narcotics inviolation of 21 U.S.C. § 174. Williams was arrested at his homethat night. A quantity of heroin was discovered and seized in thecourse of a search incident to the arrest. The trial courtsustained the search, and the heroin was introduced in evidence.Williams was convicted and sentenced to a 10-year prison term. Thejudgment of conviction was affirmed by the Court of Appeals for theNinth Circuit.Williams v. United States, 418 F.2d 159(CA9 1969). That court held: (1) that our intervening decision inChimel v. California, supra, was not retroactive, and didnot govern searches carried out prior to June 23, 1969, the date ofthat decision; and (2) that the search was valid underpre-Chimel law evidenced byUnited States v.Rabinowitz,339 U. S. 56(1950), andHarris v. United States,331 U.S. 145 (1947). The Court of Appeals also

Page 401 U. S. 649

rejected a claim that the search was invalid because the arrestwas a mere pretext for an unwarranted search. We grantedcertiorari. 397 U.S. 986 (1970).

In No. 82, petitioner Elkanich was convicted on three counts ofselling narcotics in violation of 21 U.S.C. § 174. He was sentencedto three concurrent 10-year sentences. The evidence introducedincluded marked bills given by federal agents to an intermediary touse in purchasing narcotics. The bills were seized during a searchof petitioner's apartment following his arrest there. The searchwas challenged at trial on the ground that the arrest was invalid.Both the arrest and the incident search were upheld at trial and ondirect appeal,Elkanich v. United States, 327 F.2d 417(CA9 1964), as well as by the District Court and the Court ofAppeals in subsequent proceedings brought by petitioner under 28U.S.C. § 2255. We granted the petition for certiorari to considerthe effect, if any, of ourChimel decision, whichintervened when the appeal from denial of petitioner's § 2255application was pending in the Court of Appeals. 396 U.S. 1057(1970). We affirm the judgments in both cases.

IIAside from an insubstantial claim by Williams that his arrestwas invalid, [Footnote 1]neither petitioner in this Court suggests that his conviction wasunconstitutionally obtained;

Page 401 U. S. 650

no evidence and no procedures were employed at or before trialthat violated any then-governing constitutional norms. Concededly,the evidence seized incident to the arrest of both petitioners wasboth properly seized and admitted under the Fourth Amendment asconstrued and applied inHarris in 1947 andRabinowitz in 1950. BothHarris andRabinowitz, however, were disapproved byChimel.That case considerably narrowed the permissible scope of searchesincident to arrest, and petitioners argue that the searches carriedout in these cases, if judged byChimel standards, wereunreasonable under the Fourth Amendment, and the evidence seizedinadmissible at trial. [Footnote2] However, we reaffirm our

Page 401 U. S. 651

recent decisions in like situations:Chimel is notretroactive and is not applicable to searches conducted prior tothe decision in that case.Desist v. United States,394 U. S. 244(1969).

InLinkletter v. Walker,381 U.S. 618 (1965), we declined to give complete retroactiveeffect to the exclusionary rule ofMapp v. Ohio,367 U. S. 643(1961). Relying on prior cases, we firmly rejected the idea thatall new interpretations of the Constitution must be consideredalways to have been the law, and that prior constructions to thecontrary must always be ignored. Since that time, we have held tothe course that there is no inflexible constitutional rulerequiring in all circumstances either absolute retroactivity orcomplete prospectivity for decisions construing the broad languageof the Bill of Rights. [Footnote3] Nor have we accepted as a dividing line

Page 401 U. S. 652

the suggested distinction between cases on direct review andthose arising on collateral attack. [Footnote 4] Rather, we have proceeded to

"weigh the merits and demerits in each case by looking to theprior history of the rule in question, its purpose and effect, andwhether retrospective operation will further or retard itsoperation."

Linkletter, supra, at381 U. S. 629.[Footnote 5]

Page 401 U. S. 653

Where the major purpose of new constitutional doctrine is toovercome an aspect of the criminal trial that substantially impairsits truthfinding function, and so raises serious questions aboutthe accuracy of guilty verdicts in past trials, the new rule hasbeen given complete retroactive effect. [Footnote 6] Neither good faith reliance by state orfederal authorities on prior constitutional law or acceptedpractice nor severe impact on the administration of justice hassufficed to require prospective application in thesecircumstances.

It is quite different where the purpose of the newconstitutional standard proscribing the use of certain evidence ora particular mode of trial is not to minimize or avoid arbitrary orunreliable results, but to serve other ends. In these situations,the new doctrine raises no question about the guilt of defendantsconvicted in prior trials.Mapp v. Ohio cast no doubt onthe relevance or probity of illegally seized evidence, but excludedit from criminal trials to deter official invasions of individualprivacy protected by the Fourth Amendment.Katz v. UnitedStates,389 U. S. 347(1967), overruledOlmstead v. United States,277 U.S. 438 (1928), andGoldman

Page 401 U. S. 654

v. United States,316 U. S. 129(1942), and gave expanded Fourth Amendment protection againstnonconsensual eavesdropping. It followed that evidence obtained bynontrespassory electronic surveillance of a public telephone boothbecame subject to the exclusionary rule, which had been fashionedby the Court to exact compliance with the Amendment, rather than toprotect defendants from conviction on untrustworthy evidence. Thus,the Court, when it came to consider the retroactivity ofMapp andKatz, was dealing with cases quitedifferent from those situations where emerging constitutionaldoctrine casts such doubt upon the soundness of some aspect ofprior trials that State and Federal Governments were disentitledfrom further pursuing the goals of their criminal law againstdefendants convicted in such prior trials.

The petitioners in bothLinkletter andDesistwere convicted in proceedings that conformed to all then-applicableconstitutional norms. In both cases, the government involved had aconcededly guilty defendant in custody and substantial unsatisfiedinterests in achieving with respect to such defendant whateverdeterrent and rehabilitative goals underlay its criminal justicesystem. Each defendant, Linkletter by the habeas corpus route, andDesist on direct appeal, claimed the benefit of a later decidedcase and demanded a new trial. But ordering new trials would haveinvolved not only expense and effort, but the inevitable risk ofunavailable witnesses and faulty memories; the authorities mightnot have had the evidence they once had, and might have beenforeclosed from obtaining other evidence they might have securedhad they known the evidence they were using was constitutionallysuspect. Moreover, it was not essential to the deterrent purpose ofthe exclusionary rule thatMapp andKatz be givenretroactive effect; indeed that purpose would have been onlymarginally

Page 401 U. S. 655

furthered by extending relief to Linkletter, Desist, and allothers in comparable situations. In these circumstances, we foundno constitutional arrant for setting aside either conviction.[Footnote 7]

Page 401 U. S. 656

IIIConsidering thatDesist represents the sound approachto retroactivity claims in Fourth Amendment cases, we are confidentthat we are not constitutionally bound to apply the standards ofChimel to the cases brought here by Elkanich and Williams.Both petitioners were duly convicted when judged by thethen-existing law; the authorities violated neither petitioner'srights either before or at trial. No claim is made that theevidence against them was constitutionally insufficient to provetheir guilt. And theChimel rule will receive sufficientimplementation by applying it to those cases involving theadmissibility of evidence seized in searches occurring afterChimel was announced on June 23, 1969, and carried out byauthorities who, through mistake or ignorance, have violated theprecepts of that decision.

IVBoth from the course of decision sinceLinkletter andfrom what has been said in this opinion, it should be clear that wefind no constitutional difference between the applicability ofChimel to those prior convictions that are here on directappeal and those involving collateral proceedings. Nor, inconstitutional terms, is there any difference between state andfederal prisoners insofar as retroactive application to their casesis concerned.

Page 401 U. S. 657

We accept MR. JUSTICE HARLAN's truism, stated in dissent, thatour task is to adjudicate cases and the issues they present,including constitutional questions where necessary to dispose ofthe controversy. Hence, we must resolve the Fourth Amendment issuesraised by Elkanich and Williams. But this leaves the question ofhow those issues should be resolved. Assuming that neither has acolorable claim under the pre-Chimel law, but both wouldbe entitled to relief ifChimel is the governing standard,which constitutional standard is to rule these cases? This is theunavoidable threshold issue -- as MR. JUSTICE HARLAN describes itin discussing cases before us on collateral review, a "choice oflaw problem."Post at401 U. S.682.

The opinions filed in these cases offer various answers to thequestion. We would judge the claims in bothWilliams andElkanich by the law prevailing when petitioners weresearched. Surely this resolution is no more legislative, and noless judicial, than that of MR. JUSTICE HARLAN. He feels compelledto apply new overruling decisions to cases here on direct review,but deems himself free, with some vague and inscrutable exceptions,[Footnote 8] to refuse thebenefits of new decisions to those defendants who collaterallyattack their convictions. The latter judgment seems to rest chieflyon his own assessment of the public interest in achieving finalityin criminal litigation. The former is not explained at all exceptby repeated assertions that cases here on direct review aredifferent. [Footnote 9] But wehave no authority to upset

Page 401 U. S. 658

criminal convictions at will. Does the Constitution compel us toapplyChimel retroactively and set aside Williams'conviction when he was convicted on sound evidence secured inconformity with the then-applicable constitutional law as announcedby this Court? As we have said, we think not -- no more so than itcompels applying the teachings ofChimel in reviewing thedenial of Elkanich's petition for collateral relief. Other thanconsidering it inherent in the process of judicial review, MR.JUSTICE HARLAN does not directly address the question. Nor does hepurport to explain how the purpose of the exclusionary rulefashioned by this Court as

Page 401 U. S. 659

a Fourth Amendment mechanism will be at all furthered bymechanically affording Williams the benefit ofChimel.

We are also unmoved by the argument that, since the petitionersin cases likeMapp, Duncan v. Louisiana,391 U.S. 145 (1968), andKatz have been given relief,when it was only by chance that their cases first brought thoseissues here for decision, it is unfair to deny relief to otherswhose cases are as thoroughly deserving. It would follow from thisargument that all previous convictions that would be vulnerable ifthey occurred today would be set aside. Surely this is the tailwagging the dog. The argument was fairly met and adequatelydisposed of inStovall v. Denno,388 U.S. 293,388 U. S. 301(1967). We see no reason to repeat or reconsider what we said inthat case.

It is urged that the prevailing approach to retroactivityinvolves confusing problems of identifying those "new"constitutional interpretations that so change the law thatprospectivity is arguably the proper course. But we have no suchproblems in these cases, since, to reach the result it did, theCourt inChimel found it necessary to disapproveHarris andRabinowitz, and, under those cases,the search inChimel and the searches now before us wouldhave been deemed reasonable for Fourth Amendment purposes.Moreover, the idea that circumstances may require prospectivity forjudicial decisions construing the Constitution is an old one; it isnot a new problem for the courts. It has not proved unmanageable,and we doubt that courts and judges have suddenly lost thecompetence to deal with the problems that it may present. [Footnote 10]

The judgments are

Affirmed.

Page 401 U. S. 660

While joining the plurality opinion, MR. JUSTICE STEWART wouldalso affirm the judgment in No. 82,Elkanich v. UnitedStates, on the alternative ground that the issue presented isnot one cognizable in a proceeding brought under 28 U.S.C. § 2255.See Harris v. Nelson,394 U. S. 286,394 U. S. 307(dissenting opinion);Kaufman v. United States,394 U. S. 217,394 U. S. 242(dissenting opinion);Chambers v. Maroney,399 U. S.42,399 U. S. 54(concurring opinion).

MR. JUSTICE BLACK, while adhering to his opinion inLinkletter v. Walker,381 U. S. 618,381 U. S. 640(1965), concurs in the result on the ground that he believes thatChimel v. California,395 U. S. 752(1969), was wrongly decided.

MR. JUSTICE DOUGLAS took no part in the consideration ordecision of these cases.

[For opinion of MR. JUSTICE HARLAN, concurring in the judgmentin No. 82 and dissenting in No. 81,see post, p.401 U. S.675.]

* Together with No. 82,Elkanich v. United States, alsoon certiorari to the same court.

[Footnote 1]

The Court of Appeals correctly rejected Williams' claim that hisarrest was a pretext to make an otherwise invalid search.Williams v. United States, 418 F.2d 159, 16161 (CA9 1969).In his petition for certiorari, Williams also argued that there wasinsufficient proof of his knowledge of and control over the heroinfound in the incidental search of his home, and thus that theGovernment had failed to prove constructive possession. This claimwas neither briefed nor argued by the parties, and we decline todisturb the judgment of the Court of Appeals rejecting it.See 418 F.2d at 162-163.

[Footnote 2]

Petitioner Williams was arrested pursuant to a warrant in theliving room of his residence shortly after midnight. Eight officerswere involved, and the entire house was searched for a period ofabout one hour and 45 minutes. The heroin introduced at trial wasfound in a container on a closet shelf in one of the bed rooms.Williams, supra,n 1,at 161. The Government does not argue that this search incident toarrest complies withChimel.

Elkanich was arrested without a warrant in his apartment. Hedoes not argue that the arresting agents did not have probablecause to arrest, but asserts that the search violated the FourthAmendment. Three agents came to petitioner's apartment, and, afterthe door was opened by his wife in response to a knock, entered andimmediately arrested petitioner. After handcuffing Elkanich, theagent in charge called for assistance. Three more agents arrivedwithin 15 minutes, and they searched the four-room apartment forover an hour. The supervising agent asked petitioner if he had anylarge sums of cash, guns, "or anything of that kind" in theapartment. Petitioner at first said no, but later indicated therewas some money in a broom closet. The agent found $500 above themolding at the top of the closet, returned to the living room, andsearched petitioner and his wife, finding $200 on each of them.Another agent then found a second roll of bills above the moldingin the broom closet, this one totaling about $1,000. Two otheritems later introduced in evidence were seized from a closet in theliving room. Of the total of nearly $2,000 seized, $1,550 consistedof marked bills used by an undercover agent to purchase narcoticsfrom one Rios, whom petitioner was alleged to be supplying.

The Government here argues that exigent circumstances justifythe search without a warrant. The argument is that the presence ofpetitioner's wife in the apartment left the agents only twochoices: (1) to postpone searching until a warrant could besecured, a course which would entail either some sort of controlover the wife's activity or a risk that evidence would disappear;or (2) to search the apartment immediately, as they did.

Because of our resolution of the retroactivity question, we findit unnecessary to pass on this contention.

[Footnote 3]

Many of the cases are discussed in the majority and dissentingopinions inDesist v. United States,394 U.S. 244 (1969). These cases, and the general question ofprospective effect for judicial decisions, have generated asubstantial amount of commentary.See generally Bender,The Retroactive Effect of an Overruling Constitutional Decision:Mapp v. Ohio, 110 U.Pa.L.Rev. 650 (1962); Currier, Timeand Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev.201 (1965); Levy, Realist Jurisprudence and Prospective Overruling,109 U.Pa.L.Rev. 1 (1960); Meador, Habeas Corpus and the"Retroactivity" Illusion, 50 Va.L.Rev. 1115 (1964); Mishkin, TheSupreme Court 1964 Term -- Foreword: The High Court, the GreatWrit, and the Due Process of Time and Law, 79 Harv.L.Rev. 56(1965); Schaefer, The Control of "Sunbursts": Techniques ofProspective Overruling, 42 N.Y.U.L.Rev. 631 (1967); Schwartz,Retroactivity, Reliability, and Due Process: A Reply to ProfessorMishkin, 33 U.Chi.L.Rev. 719 (1966); Spruill, The Effect of anOverruling Decision, 18 N.C.L.Rev.199 (1940); Note, Retroactivityof Criminal Procedure Decisions, 55 Iowa L.Rev. 1309 (1970);Comment,Linkletter, Shott, and the Retroactivity ProbleminEscobedo, 64 Mich.L.Rev. 832 (1966); Comment,Prospective Overruling and Retroactive Application in the FederalCourts, 71 Yale L.J. 907 (1962).Cf. Kitch, The SupremeCourt's Code of Criminal Procedure: 1968-1969 Edition, 1969Sup.Ct.Rev. 155, 183-200.

[Footnote 4]

See post, p.401 U. S. 675(HARLAN, J., concurring in judgments and dissenting).Compare Mishkin, The Supreme Court 1964 Term -- Foreword:The High Court, the Great Writ, and the Due Process of Time andLaw, 79 Harv.L.Rev. 56 (1965),with Schwartz,Retroactivity, Reliability, and Due Process: A Reply to ProfessorMishkin, 33 U.Chi.L.Rev. 719 (1966).

In rejecting the distinction between cases pending on directreview and those on collateral attack, the Court inJohnson v.New Jersey,384 U. S. 719,384 U. S. 732(1966), stated:

"Our holdings inLinkletter andTehan werenecessarily limited to convictions which had become final by thetimeMapp andGriffin were rendered. Decisionsprior toLinkletter andTehan had alreadyestablished without discussion thatMapp andGriffin applied to cases still on direct appeal at thetime they were announced."

[Footnote 5]

In our more recent opinions dealing with the retroactive sweepof our decisions in the field of criminal procedure, the approachmandated byLinkletter has come to be summarized in termsof a threefold analysis directed at discovering:

"(a) the purpose to be served by the new standards, (b) theextent of the reliance by law enforcement authorities on the oldstandards, and (c) the effect on the administration of justice of aretroactive application of the new standards."

Stovall v. Denno,388 U. S. 293,388 U. S. 297(1967);see also Desist v. United States,394 U.S. 244,394 U. S. 249(1969).

[Footnote 6]

See, e.g., Arsenault v. Massachusetts,393 U. S.5 (1968) (giving retroactive effect to the right tocounsel provided inWhite v. Maryland,373 U. S.59 (1963));McConnell v. Rhay,393 U. S.2 (1968) (giving retroactive effect to the right tocounsel provided inMempa v. Rhay,389 U.S. 128 (1967));Berger v. California,393 U. S. 314(1969) (giving retroactive effect toBarber v. Page,390 U. S. 719(1968));Roberts v. Russell,392 U.S. 293 (1968) (giving retroactive effect toBrutonv. United States,391 U. S. 123(1968));Jackson v. Denno,378 U.S. 368 (1964);Gideon v. Wainwright,372 U. S. 335(1963);Douglas v. California,372 U.S. 353 (1963);Griffin v. Illinois,351 U. S. 12(1956).

[Footnote 7]

The Fourth Amendment cases do not stand alone. We have reachedsimilar results in holding nonretroactive new interpretations ofthe Fifth Amendment's privilege against compelledself-incrimination, although some ramifications of the privilegehave more connection with trustworthy results than does theexclusionary rule designed to enforce the Fourth Amendment.SeeTehan v. Shott,382 U. S. 406,382 U. S.414-415, n. 12 (1966);Johnson v. New Jersey,384 U. S. 719,384 U. S. 730(1966);Desist v. United States, 394 U.S. at394 U. S.249-250, n. 14;cf. Mackey v. United States,post at401 U. S.674-675. So, too, the right to jury trial secured by theSixth Amendment "generally tends to prevent arbitrariness andrepression,"DeStefano v. Woods,392 U.S. 631,392 U. S. 633(1968), and the holdings inUnited States v. Wade,388 U. S. 218(1967), andGilbert v. California,388 U.S. 263 (1967), carry implications for the reliability ofidentification testimony. But bothDuncan v. Louisiana,391 U. S. 145(1968), obligating the States to recognize the right to jury trialby virtue of the Fourteenth and Sixth Amendments, andWadeandGilbert were applied only prospectively in view of thecountervailing considerations that retroactivity would entail.DeStefano v. Woods, supra; Stovall v. Denno,388 U.S. 293 (1967).

In bothJohnson andStovall, we franklyacknowledged that "[t]he extent to which a condemned practiceinfects the integrity of the truth-determining process at trial isaquestion of probabilities.'" 388 U.S. at388 U. S. 298.Where we have been unable to conclude that the use of such a"condemned practice" in past criminal trials presents substantiallikelihood that the results of a number of those trials werefactually incorrect, we have not accorded retroactive effect to thedecision condemning that practice.See e.g., DeStefano,392 U.S. at392 U. S.633-634 (quotingDuncan):

"'We would not assert, however, that every criminal trial -- orany particular trial -- held before a judge alone is unfair, orthat a defendant may never be as fairly treated by a judge as hewould be by a jury.'"

Our Brother HARLAN criticizes these decisions, stating that hefinds

"inherently intractable the purported distinction between thosenew rules that are designed to improve the factfinding process andthose designed principally to further other values."

Post at401 U. S. 695.Earlier, he suggests that

"those new rules cognizable on habeas ought to be defined not bythe 'truth-determining' test, but by thePalko [v.Connecticut,302 U. S. 319,302 U. S.325 (1937)] test."

Post at401 U. S. 694.But operating within the confines of a rule that seeks todetermine,inter alia, whether a newly proscribed practicehas probably produced factually improper results in cases where itwas employed is surely to proceed with more definite bearings thanare provided by a "test" that seeks to define those procedureswhich are "implicit in the concept of ordered liberty."Seen 8,infra.

[Footnote 8]

Compare MR. JUSTICE HARLAN's treatment of petitionerElkanich's case,post at401 U. S.699-700,with his resolution ofMackey,post at401 U. S.700-701.Cf. his discussion ofGideonand its application to cases on collateral review.Post at401 U. S.693-694.

[Footnote 9]

Let us assume that X and Y are accomplices in a murder, and thatthey are tried separately in the state courts. For any one ofseveral reasons, including reversal and retrial or consensualdelay, X's case proceeds slowly through direct review, while Y'sconviction is quickly affirmed. Assume further that, after X'sconviction is affirmed by the State's highest court, this Courtholds that a practice employed in both the X and Y trials violatesthe Constitution. Both X and Y come before this Court at the sametime, seeking to have the new rule applied to their cases -- X ondirect review and Y by way of collateral attack. (Or, X and Y couldbe petitioners tried for wholly different offenses in differentStates or in different districts in the federal system. X, tried ina crowded jurisdiction and having appellate review in a busyjudicial system, would be before this Court on direct review, whileY, whose case arose before less congested courts, would most likelybe here on collateral attack.)

Under MR. JUSTICE HARLAN's approach, X automatically receivesthe benefit of the new rule -- because we are a court of lawsomehow bound to decide all cases here on direct review inaccordance with the law as it exists when the case arrives forconsideration. Although we remain a court of law, Y may or may notreceive the benefit of the new rule, the result depending onwhether the new rule is designed to correct a practice that hascome, over time, to shock our Brother's conscience. Under ourapproach today, the results as to X and Y would be consistent, asthey should be.

As a perceptive jurist has remarked:

"[W]hen a court is itself changing the law by an overrulingdecision, its determination of prospectivity or retroactivityshould not depend upon the stage in the judicial process that aparticular case has reached when the change is made. Too manyirrelevant considerations, including the common cold, bear upon therate of progress of a case through the judicial system."

Schaefer,supra,n3, at 645.

[Footnote 10]

Nor is the problem "greatly ameliorated,"post at401 U. S. 695,by the approach suggested by MR. JUSTICE HARLAN. For whenever ourBrother HARLAN considers a case on collateral review, he must ofnecessity determine which of the prisoner's claims are grounded on"new" rules in deciding what "the law in effect [was] when aconviction became final,"post at401 U. S.692.

MR. JUSTICE BRENNAN, concurring in the result.

Chimel v. California,395 U. S. 752(1969), applied principles established by a long line of cases[Footnote 2/1] to determine thepermissible scope of a warrantless search sought

Page 401 U. S. 661

to be justified as the necessary incident of a lawful arrest.But in applying these principles to the circumstances involved inChimel, we were compelled to overruleHarris v. UnitedStates,331 U. S. 145(1947), andUnited States v. Rabinowitz,339 U. S.56 (1950).Harris andRabinowitz werefounded on

"little more than a subjective view regarding the acceptabilityof certain sorts of police conduct, and not on considerationsrelevant to Fourth Amendment interests."

Chimel, supra at395 U. S.764-765;see United States v. Rabinowitz,supra, at339 U. S. 83(Frankfurter, J., dissenting). By the time ofChimel, thisview had long since been rejected; but until that day,Harris andRabinowitz survived as directauthority for the proposition that a lawful arrest would somehowjustify a warrantless search of the premises on which the arrestwas made, beyond the immediate reach of the person arrested.[Footnote 2/2]

Accordingly, we are presented in these cases with the questionwhetherChimel should be applied to require the exclusionat trial of evidence which is the fruit of a search, carried outbefore our decision inChimel, and which would be lawfulif measured by the standards ofHarris andRabinowitz, but unlawful under the rule ofChimel. The Court today holds that the fruits of searchesmade prior to our decision inChimel may be used incriminal trials if the searches may be justified

Page 401 U. S. 662

under the standards ofHarris andRabinowitzas those standards had previously been applied.See, e.g., VonCleef v. New Jersey,395 U. S. 814(1969). I agree. InStovall v. Denno,388 U.S. 293,388 U. S. 297(1967), we said that

"[t]he criteria guiding resolution of [this] question implicate(a) the purpose to be served by the new standards, (b) the extentof the reliance by law enforcement authorities on the oldstandards, and (c) the effect on the administration of justice of aretroactive application of the new standards."

All three factors imply that the rule ofChimel shouldbe applied only to searches carried out afterChimel wasdecided.

ILike the Fifth Amendment's protection against compulsoryself-incrimination, the warrant requirement of the Fourth Amendmentstakes out boundaries beyond which the government may not tread inforcing evidence or information from its citizens. When coercion,impermissible under the Fifth Amendment, has actually produced aninvoluntary statement, we have invariably held that the fruits ofthat unconstitutional coercion may not be used to prosecute theindividual involved for crime.E.g., Rochin v. California,342 U. S. 165,342 U. S. 173(1952) (Frankfurter, J.);Ashcraft v. Tennessee,322 U. S. 143(1944);Boyd v. United States,116 U.S. 616,116 U. S.630-635,116 U. S. 638(1886). [Footnote 2/3] Exclusion ofstatements impermissibly coerced is not merely a device to detergovernment agents from improper conduct in the future. Exclusion ofcoerced testimony is part and parcel of the privilege

Page 401 U. S. 663

against self-incrimination. Likewise, when a searchimpermissible under the Fourth Amendment results in the seizure ofevidence, exclusion of the fruits of that unconstitutional invasionis required not merely in hope of deterring unconstitutionalsearches in the future, but in order to vindicate the right ofprivacy guaranteed by the Fourth Amendment.See Boyd v. UnitedStates, supra; Weeks v. United States,232 U.S. 383,232 U. S.390-394,232 U. S. 398(1914);Mapp v. Ohio,367 U. S. 643,367 U. S. 656,367 U. S. 660(1961). Exclusion of evidence in order to vindicate the right ofprivacy, however, does not improve the reliability of thefactfinding process at trial.See Desist v. United States,394 U. S. 244,394 U. S.249-250 (1969), and cases cited. Accordingly, thisfactor does not require that the standards ofChimel beretroactively applied.Desist v. United States, supra; Stovallv. Denno, 388 U.S. at388 U. S. 297-299.

IIThe factor of reliance by law enforcement officials onHarris andRabinowitz points in the samedirection. As we recognized inChimel itself, FourthAmendment jurisprudence has often followed a tortuous path. 395U.S. at395 U. S.755-762. So long asHarris andRabinowitz were not visibly overruled, we cannot besurprised that policemen and those who offer them guidance may nothave scrutinized their doctrinal underpinnings for signs oferosion. And the extent of reliance, it appears, has beenconsiderable. The Government represents, and petitioners do notseriously dispute, that a very substantial number of searches havebeen carried out in reliance upon these cases. In many of these,there is no reason to doubt that a warrant could and would havebeen obtained if the officials involved had been aware that awarrant would be required. This factor as well, therefore, impliesthatChimel should have only prospective application.

Page 401 U. S. 664

IIIFinally, we must evaluate the probable impact of retroactiveapplication on the administration of justice. Persons convictedthrough the use of evidence inadmissible underChimel havebeen found to have engaged in conduct that the government involvedmay legitimately punish.Chimel casts no doubt upon thepropriety of the government's interest in punishing those who haveengaged in such conduct. Accordingly, it may fairly be assumed thatretroactive application of its standards would result in asubstantial number of retrials. YetChimel likewise castsno doubt upon the reliability of the initial determination of guiltat the previous trial. Moreover, the legitimate reliance of lawenforcement officials onHarris andRabinowitz,as already noted, may well have led them to conduct a warrantlesssearch merely because the warrant requirement, although easilysatisfied, was understandably not understood. The consequence ofthis is that retroactive application of the standards applied inChimel would impose a substantial burden upon the federaland state judicial systems, while serving neither to redressknowing violations of individual privacy nor to protect a class ofpersons the government has no legitimate interest in punishing.

IVThis is not to say, however, that petitioners are to be deniedrelief because they are probably guilty. "[T]here is always inlitigation a margin of error, representing error in factfinding."Speiser v. Randall,357 U. S. 513,357 U. S. 525(1958). The constitutional requirement that guilt in criminal casesbe proved beyond a reasonable doubt serves to limit, but cannoteliminate, the number of criminal defendants found guilty who arein fact, innocent.See In re Winship,397 U.S. 358,397 U. S.370-372 (1970) (concurring

Page 401 U. S. 665

opinion). In the present cases, both petitioners asserted theirinnocence by pleading not guilty and going to trial, and petitionerin No. 81, whose case is here on direct review, raised in hispetition for certiorari the question whether the evidence presentedat trial was sufficient to support a finding of guilt. But thisCourt does not sit to review such questions. In denying retroactiveapplication to the rule ofChimel, we neither do nor coulddetermine that every person convicted by the use of evidenceobtained contrary to that rule is, in fact, guilty of the crime ofwhich he was convicted. The question we face is not the legitimacyor sincerity of petitioners' claims of innocence, or indeed whetherany such claims are expressly made at all. It is, instead, whetherChimel v. California compels us to conclude that theinvasion of petitioners' privacy, conducted in justifiable butmistaken reliance upon the continuing validity ofHarrisandRabinowitz, requires the exclusion of the fruits ofthat invasion from the factfinding process at trial. I agree withthe Court that it does not, and that the standards ofChimel should apply only to searches carried out afterJune 23, 1969.

[Footnote 2/1]

Our cases have settled the proposition that the Fourth Amendmentrequires agents of the Government to obtain prior judicial approvalof all searches and seizures,see, e.g., Davis v.Mississippi,394 U. S. 721,394 U. S. 728(1969);Katz v. United States,389 U.S. 347,389 U. S.356-357 (1967);James v. Louisiana,382 U. S. 36(1965);Preston v. United States,376 U.S. 364,376 U. S. 368(1964);McDonald v. United States,335 U.S. 451,335 U. S.455-456 (1948);Agnello v. United States,269 U. S. 20,269 U. S. 33(1925), subject only to a few narrow and well delineated exceptionsgrounded upon urgent necessity.Terry v. Ohio,392 U. S. 1,392 U. S. 16-27(1968);see Katz v. United States, supra, at389 U. S. 357n.19 and cases cited;cf. Chambers v. Maroney,399 U. S. 42(1970). And, in all events, "[t]he scope of [a] search must bestrictly tied to and justified by' the circumstances whichrendered its initiation permissible."Terry v. Ohio,supra, at392 U. S. 19,quotingWarden v. Hayden,387 U.S. 294,387 U. S. 310(1967) (concurring opinion).

[Footnote 2/2]

Long beforeChimel, of course, we had made clear thatHarris andRabinowitz were not themselves withoutlimit.James v. Louisiana,382 U. S.36 (1965);Kremen v. United States,353 U. S. 346(1957);see Von Cleef v. New Jersey,395 U.S. 814 (1969);Stanley v. Georgia,394 U.S. 557,394 U. S.569-572 (1969) (STEWART, J., concurring in result).

[Footnote 2/3]

Under what circumstances the Fifth Amendment requires that theindividual concerned be granted immunity from prosecution for thematters revealed in his statements is a question not pertinenthere.See Piccirillo v. New York,400 U.S. 548,400 U. S.561-573 (1971) (BRENNAN, J., dissenting).

MR. JUSTICE MARSHALL, concurring in part and dissenting inpart.

After studying afresh the pattern of the Court's retroactivitydecisions sinceLinkletter v. Walker,381 U.S. 618 (1965), I conclude that a decision of this Courtconstruing the Constitution should be applied retroactively to allcases involving criminal convictions not yet final at the time ourdecision is rendered. Sound jurisprudential reasoning, so wellarticulated by MR. JUSTICE HARLAN in his separate opinion coveringthe present cases,post, p.401 U. S. 675,in my view, requires that cases still on direct review shouldreceive full benefit of our supervening constitutional decisions. Iam persuaded that

Page 401 U. S. 666

willingness to tolerate the inevitable costs and anomalies ofthe Court's current approach to retroactivity is incompatible withthe judicial duty of principled review of convictions not yetfinal.

I disagree somewhat with MR. JUSTICE HARLAN as to the properapproach to retroactivity for cases arising on habeas corpus orother modes of collateral attack. In such cases, I believe it isbest to employ the three-part analysis that the pluralityundertakes today in deciding the retroactivity of the rule inChimel v. California,395 U. S. 752(1969). This mode of analysis was foreshadowed inLinkletter, where the question was whether the rule ofMapp v. Ohio,367 U. S. 643(1961), should be applied on collateral review. The method commendsitself, once the point of finality after direct review is passed,as a careful and appropriate way of adjudicating the "procedural"rights of litigants in view of the purposes of a new decisionalrule and the concerns of effective law enforcement. In particular,if the purposes of a new rule implicate decisively the basictruth-determining function of the criminal trial, then I believethe rule should be given full retroactive application, for therequired constitutional procedure itself would then stand as aconcrete embodiment of "the concept of ordered liberty."Palkov. Connecticut,302 U. S. 319,302 U. S. 325(1937).

In light of the above, I concur in the Court's disposition ofNo. 82. That case is before us on collateral review. For cases insuch a posture the mode of analysis used by the plurality isappropriate, and I agree that theChimel rule should notbe applied retroactively to such cases.

No. 81 is before us on direct review. Since there is a clearviolation ofChimel on the facts, I would reverse thejudgment below, for I believe that the same constitutional ruleshould be applied to adjudicate the rights of the petitioner in No.81 as was applied inChimel's case.