DESIST v. UNITED STATES

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioners were convicted by a jury in the District Court for the Southern District of New York of conspiring to import and conceal heroin in violation of the federal narcotics laws.1 An important part of the Government's evidence consisted of tape recordings of conversations among several of the petitioners in a New York City hotel room. The tapes were made by federal officers in the adjoining room by means of an electronic recording device which did not physically intrude into the petitioners' room.2 Because there was no "trespass" or "actual intrusion into a constitutionally protected area," the District Court and the Court of Appeals rejected the petitioners' argument that this evidence was inadmissible because the eavesdropping had violated their rights under the Fourth Amendment. The convictions were affirmed,3 and we granted certiorari to consider the constitutional questions thus presented.4

Last Term in Katz v. United States, 389 U.S. 347, we held that the reach of the Fourth Amendment "cannot turn upon the presence or absence of a physical intrusion into any given enclosure." Id., at 353. Noting that the "Fourth Amendment protects people, not places," id., at 351, we overruled cases holding that a search and seizure of speech requires some trespass or actual penetration of a particular enclosure. We concluded that since every electronic eavesdropping upon private conversations is a search or seizure, it can comply with constitutional standards only when authorized by a neutral magistrate upon a showing of probable cause and under precise limitations and appropriate safeguards. The eavesdropping in this case was not carried out pursuant to such a warrant, and the convictions must therefore be reversed if Katz is to be applied to electronic surveillance conducted before the date of that decision. We have concluded, however, that to the extent Katz departed from previous holdings of this Court, it should be given wholly prospective application. Accordingly, and because we find no merit in any of the petitioners' other challenges to their convictions, we affirm the judgment before us.5

We are met at the outset with the petitioners' contention that Katz does not actually present a choice between prospective or retroactive application of new constitutional doctrine. The Court in that decision, it is said, did not depart from any existing interpretation of the Constitution, but merely confirmed the previous demise of obsolete decisions enunciating the distinction between "trespassory" searches and those in which there was no physical penetration of the protected premises. Goldman v. United States, 316 U.S. 129; Olmstead v. United States, 277 U.S. 438.6 But this contention misconstrues our opinion in Katz. Our holding there that Goldman and Olmstead "can no longer be regarded as controlling," 389 U. S., at 353, recognized that those decisions had not been overruled until that day.7 True, the principles they expressed had been modified. The belief that an oral conversation could not be the object of a "search" or "seizure" had not survived.8 And in Silverman v. United States, 365 U.S. 505, we had cautioned that the scope of the Fourth Amendment could not be ascertained by resort to the "ancient niceties of tort or real property law." 365 U. S., at 511. But the assumption persisted that electronic surveillance did not offend the Constitution unless there was an "actual intrusion into a constitutionally protected area."9 While decisions before Katz may have reflected growing dissatisfaction with the traditional tests of the constitutional validity of electronic surveillance,10 the Court consistently reiterated those tests and declined invitations to abandon them.11 However clearly our holding in Katz may have been foreshadowed, it was a clear break with the past, and we are thus compelled to decide whether its application should be limited to the future.

Ever since Linkletter v. Walker, 381 U.S. 618, 629, established that "the Constitution neither prohibits nor requires retrospective effect" for decisions expounding new constitutional rules affecting criminal trials, the Court has viewed the retroactivity or nonretroactivity of such decisions as a function of three considerations. As we most recently summarized them in Stovall v. Denno, 388 U.S. 293, 297,

Foremost among these factors is the purpose to be served by the new constitutional rule.13 This criterion strongly supports prospectivity for a decision amplifying the evidentiary exclusionary rule. Thus, it was principally the Court's assessment of the purpose of Mapp v. Ohio, 367 U.S. 643, which led it in Linkletter to deny those finally convicted the benefit of Mapp's extension of the exclusionary rule to the States:

We further observed that, in contrast with decisions which had been accorded retroactive effect,15 "there is no likelihood of unreliability or coercion present in a search-and-seizure case"; the exclusionary rule is but a "procedural weapon that has no bearing on guilt," and "the fairness of the trial is not under attack." 381 U. S., at 638, 639. Following this reasoning of Linkletter, we recently held in Fuller v. Alaska, 393 U.S. 80, that the exclusionary rule of Lee v. Florida, 392 U.S. 378, should be accorded only prospective application. Analogizing Lee to Mapp, we concluded that evidence seized in violation of § 605 of the Federal Communications Act16 was "no less relevant and reliable than that seized in violation of the Fourth Amendment," and that both decisions were merely "designed to enforce the federal law." 393 U. S., at 81.

The second and third factors—reliance of law enforcement officials, and the burden on the administration of justice that would flow from a retroactive application— also militate in favor of applying Katz prospectively. Katz for the first time explicitly overruled the "physical penetration" and "trespass" tests enunciated in earlier decisions of this Court. Our periodic restatements of those tests confirmed the interpretation that police and courts alike had placed on the controlling precedents and fully justified reliance on their continuing validity. Nor had other courts theretofore held that the prohibitions of the Fourth Amendment encompassed "non-trespassory" electronic surveillance. On the contrary, only a few months before the eavesdropping in this case, the Court of Appeals for the Second Circuit had upheld the introduction of electronic evidence obtained by the same narcotics agent with a virtually identical installation. United States v. Pardo-Bolland, 348 F.2d 316, cert. denied, 382 U.S. 944.

Although there apparently have not been many federal convictions based on evidence gathered by warrantless electronic surveillance,17 we have no cause to doubt that the number of state convictions obtained in reliance on pre-Katz decisions is substantial.18 Moreover, the determination of whether a particular instance of eavesdropping led to the introduction of tainted evidence at trial would in most cases be a difficult and time-consuming task, which, particularly when attempted long after the event, would impose a weighty burden on any court. Cf. Alderman v. United States, ante, at 180-185. It is to be noted also that we have relied heavily on the factors of the extent of reliance and consequent burden on the administration of justice only when the purpose of the rule in question did not clearly favor either retroactivity or prospectivity.19 Because the deterrent purpose of Katz overwhelmingly supports nonretroactivity, we would reach that result even if relatively few convictions would be set aside by its retroactive application.

The petitioners argue that even if Katz is not given fully retrospective effect, at least it should govern those cases which, like the petitioners', were pending on direct review when Katz was decided. Petitioners point out that in Linkletter, the only other case involving the retroactivity of a Fourth Amendment decision, the Court held Mapp applicable to every case still pending on direct review on the date of that decision. A similar approach was adopted in Tehan v. Shott, 382 U.S. 406, with respect to the prospectivity of Griffin v. California, 380 U.S. 609. In Johnson v. New Jersey, 384 U.S. 719, however, we abandoned the approach taken in Linkletter and Tehan and concluded that "there are no jurisprudential or constitutional obstacles" to the adoption of a different cut-off point. Id., at 733. We explained that

Here, on the other hand, as in Johnson, "the possibility of applying [Katz] only prospectively is yet an open issue." Ibid.

All of the reasons for making Katz retroactive also undercut any distinction between final convictions and those still pending on review. Both the deterrent purpose of the exclusionary rule and the reliance of law enforcement officers focus upon the time of the search, not any subsequent point in the prosecution, as the relevant date. Exclusion of electronic eavesdropping evidence seized before Katz would increase the burden on the administration of justice, would overturn convictions based on fair reliance upon pre-Katz decisions, and would not serve to deter similar searches and seizures in the future.

Nor can it sensibly be maintained that the Court is foreclosed by Linkletter in this case, as it was not in Johnson, simply because Katz, like Mapp, was a Fourth Amendment decision.21 In neither Linkletter nor Johnson was it intimated that the cut-off points there adopted depended in any degree on the constitutional provision involved. There is, moreover, a significant distinction between the Mapp and Katz decisions. Mapp dealt solely with the applicability of the exclusionary rule to the States; "the situation before Mapp . . . [was that] the States at least knew that they were constitutionally forbidden from engaging in unreasonable searches and seizures under Wolf v. Colorado, 338 U.S. 25 (1949)."22 Before Katz on the other hand, "non-trespassory" electronic surveillance was not thought to fall within the reach of the Fourth Amendment.23 Therefore, this case lacks whatever impetus the knowingly unconstitutional conduct by the States may have provided in Linkletter to apply Mapp to all pending prosecutions.

In sum, we hold that Katz is to be applied only to cases in which the prosecution seeks to introduce the fruits of electronic surveillance conducted after December 18, 1967.24 Since the eavesdropping in this case occurred before that date and was consistent with pre-Katz decisions of this Court, the convictions must be

Affirmed.

MR. JUSTICE BLACK, while adhering to his dissent in Linkletter v. Walker, 381 U.S. 618, 640 (1965), concurs in the affirmance of the judgment of convictions in this case for the reasons stated in his dissenting opinion in Katz v. United States, 389 U.S. 347, 364 (1967).

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

MR. JUSTICE DOUGLAS, dissenting.

It is a mystery to me why Katz v. United States, 389 U.S. 347, which was given retroactive effect to petitioner Katz will not be given retroactive effect to petitioner Desist and his copetitioners. That does not seem to me to be the administration of justice with an even hand. I would understand today's ruling if in Katz we had announced a new constitutional search-and-seizure rule to be applied prospectively in all cases. But we did not do that; nor did we do it in other recent cases announcing variations of old constitutional doctrine. The most notorious example is Miranda v. Arizona, 384 U.S. 436, where, as I recall, some 80 cases were presented raising the same question. We took four of them and held the rest and then disposed of each of the four, applying the new procedural rule retroactively. But as respects the rest of the pending cases we denied any relief. Johnson v. New Jersey, 384 U.S. 719. Yet it was sheer coincidence that those precise four were chosen. Any other single case in the group or any other four would have been sufficient for our purposes.

All this, and more, was stated by MR. JUSTICE BLACK in his dissent in Linkletter v. Walker, 381 U.S. 618, 640, in which I concurred. It is stated again with clarity and vigor by MR. JUSTICE HARLAN in today's dissent, Part I of which I join. It still remains a mystery how some convicted people are given new trials for unconstitutional convictions and others are kept in jail without any hope of relief though their complaints are equally meritorious. At least the Court should not say as respects Katz that it is given "wholly prospective application," when it was made retroactive in his case.

The pretense that we were bound in Katz to apply the new rule retroactively to that defendant or not decide the case at all, is too transparent to need answer. See 1B J. Moore, Federal Practice 191 (2d ed. 1965); 1 K. Davis, Administrative Law Treatise § 5.09 (1958); Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. 1, 15; Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201, 216-234 (1965).

In Johnson v. New Jersey, 384 U.S. 719, 733, where we announced that the rule in Miranda should apply only to cases commenced after that decision had been announced, we said:

Where the spirit is strong, there has heretofore been no impediment to producing only dictum through a "case or controversy." Indeed that tradition started with Marbury v. Madison, 1 Cranch 137.

MR. JUSTICE HARLAN, dissenting.

In the four short years since we embraced the notion that our constitutional decisions in criminal cases need not be retroactively applied, Linkletter v. Walker, 381 U.S. 618 (1965),1 we have created an extraordinary collection of rules to govern the application of that principle. We have held that certain "new" rules are to be applied to all cases then subject to direct review, Linkletter v. Walker, supra; Tehan v. Shott, 382 U.S. 406 (1966); certain others are to be applied to all those cases in which trials have not yet commenced, Johnson v. New Jersey, 384 U.S. 719 (1966); certain others are to be applied to all those cases in which the tainted evidence has not yet been introduced at trial, Fuller v. Alaska, 393 U.S. 80 (1968); and still others are to be applied only to the party involved in the case in which the new rule is announced and to all future cases in which the proscribed official conduct has not yet occurred. Stovall v. Denno, 388 U.S. 293 (1967); DeStefano v. Woods, 392 U.S. 631 (1968).

Although it has more than once been said that "new" rules affecting "the very integrity of the fact-finding process," are to be retroactively applied, Linkletter v. Walker, supra, at 639; see also Tehan v. Shott, supra, at 416; Fuller v. Alaska, supra, at 81, this requirement was eroded to some extent in Johnson v. New Jersey, supra, at 728-729, and yet further in Stovall v. Denno, supra, at 299; see also DeStefano v. Woods, supra. Again, although it has been said that a decision will be retroactively applied when it has been "clearly foreshadowed" in our prior case law, Johnson v. New Jersey, supra, at 731; Berger v. California, 393 U.S. 314 (1969), the Court today rejects such a contention. Ante, at 248. Indeed, the Court now also departs from pre-existing doctrine in refusing retroactive application within the federal system of the "new" rule ultimately laid down in Katz v. United States, 389 U.S. 347 (1967), despite its concession that "relatively few" federal cases would have to be reconsidered. Compare ante, at 251-252, with Linkletter v. Walker, supra, at 637; Tehan v. Shott, supra, at 418-419; Johnson v. New Jersey, supra, at 731-732; Stovall v. Denno, supra, at 300.

I have in the past joined in some of those opinions which have, in so short a time, generated so many incompatible rules and inconsistent principles. I did so because I thought it important to limit the impact of constitutional decisions which seemed to me profoundly unsound in principle. I can no longer, however, remain content with the doctrinal confusion that has characterized our efforts to apply the basic Linkletter principle. "Retroactivity" must be rethought.

I.

RETROACTIVITY ON DIRECT REVIEW.

Upon reflection, I can no longer accept the rule first announced two years ago in Stovall v. Denno, supra, and reaffirmed today, which permits this Court to apply a "new" constitutional rule entirely prospectively, while making an exception only for the particular litigant whose case was chosen as the vehicle for establishing that rule. Indeed, I have concluded that Linkletter was right in insisting that all "new" rules of constitutional law must, at a minimum, be applied to all those cases which are still subject to direct review by this Court at the time the "new" decision is handed down.

Matters of basic principle are at stake. In the classical view of constitutional adjudication, which I share, criminal defendants cannot come before this Court simply to request largesse. This Court is entitled to decide constitutional issues only when the facts of a particular case require their resolution for a just adjudication on the merits. See Marbury v. Madison, 1 Cranch 137 (1803). We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently. We depart from this basic judicial tradition when we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a "new" rule of constitutional law.

The unsound character of the rule reaffirmed today is perhaps best exposed by considering the following hypothetical. Imagine that the Second Circuit in the present case had anticipated the line of reasoning this Court subsequently pursued in Katz v. United States, supra, at 352-353, concluding—as this Court there did— that "the underpinnings of Olmstead and Goldman have been so eroded by our subsequent decisions that the `trespass' doctrine there enunciated can no longer be regarded as controlling." Id., at 353. Would we have reversed the case on the ground that the principles the Second Circuit had announced—though identical with those in Katz—should not control because Katz is not retroactive? To the contrary, I venture to say that we would have taken satisfaction that the lower court had reached the same conclusion we subsequently did in Katz. If a "new" constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced. Anything else would belie the truism that it is the task of this Court, like that of any other, to do justice to each litigant on the merits of his own case. It is only if our decisions can be justified in terms of this fundamental premise that they may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature.

Re-examination of prior developments in the field of retroactivity leads me irresistibly to the conclusion that the only solid disposition of this case lies in vacating the judgment of the Court of Appeals and in remanding this case to that court for further consideration in light of Katz.

II.

RETROACTIVITY ON HABEAS CORPUS.

What has already been said is, from my standpoint, enough to dispose of the case before us. Ordinarily I would not go further. But in this instance I consider it desirable and appropriate to venture some observations on the application of the retroactivity doctrine in habeas corpus cases, under the prevailing scope of the "Great Writ" as set forth in this Court's 1963 decision in Fay v. Noia, 372 U.S. 391, and in today's decision in Kaufman v. United States, ante, p. 217. I believe this course is fitting because none of the Court's prior retroactivity decisions has faced up to the quite different factors which should govern the application of retroactivity in habeas corpus cases; because the retroactive application of Katz in habeas corpus cases would seem to be foreclosed by the present decision; because principled habeas retroactivity now seems to me to demand much more than the "purpose," "reliance," and judicial "administration" standards, ante, at 249, which have so far been regarded as the tests governing retroactivity in direct review and habeas corpus cases alike; and because the retroactivity doctrine is still in a developing stage. In what ensues I shall simply try to suggest some of the considerations which appear to me to lay bare the complexities of the retroactivity problem on habeas which I feel have not been sufficiently explored in past decisions, leaving expression of definitive views upon any of such considerations for future habeas cases to which they are germane.

A.

While, as I have argued, a reviewing court has the obligation to rule upon every decisive issue properly raised by the parties on direct review, the federal courts have never had a similar obligation on habeas corpus. Indeed, until Brown v. Allen, 344 U.S. 443 (1953), federal courts would never consider the merits of a constitutional claim if the habeas petitioner had a fair opportunity to raise his arguments in the original proceeding.2 See my dissent in Fay v. Noia, supra, at 449-463; see also Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 463 (1963). With habeas restricted in this way, the question of applying a "new" constitutional rule to convictions which had become final arose so infrequently that the retroactivity issue could not be considered a significant one in those days. Even under Brown, the retroactive application of "new" rules in habeas cases did not serve to erode the finality of criminal judgments to any substantial degree. It was the rare case in which the habeas petitioner had raised a "new" constitutional argument both at his original trial and on appeal. Yet it was only in such a case that Brown would permit a habeas court to apply the "new" rule. Cf. Sunal v. Large, 332 U.S. 174 (1947).

The conflict between retroactivity and finality only became of major importance with the Court's decision in Fay v. Noia, supra. For the first time, it was there held that, at least in some instances, a habeas petitioner could successfully attack his conviction collaterally despite the fact that the "new" rule had not even been suggested in the original proceedings. Thus, Noia opened the door for large numbers of prisoners to relitigate their convictions each time a "new" constitutional rule was announced by this Court.

I continue to believe that Noia, which has been given even broader scope in Kaufman v. United States, supra, constitutes an indefensible departure both from the historical principles which defined the scope of the "Great Writ" and from the principles of federalism which have formed the bedrock of our constitutional development. Nevertheless, my views on this score have not prevailed, and pending re-examination of the scope of habeas corpus, I believe myself obliged to consider on its own bottom the retroactivity problem which Noia has spawned, since it is a matter of the greatest importance if the integrity of the federal judicial process is to be maintained in this era of increasingly rapid constitutional change.

B.

The greatly expanded writ of habeas corpus seems at the present time to serve two principal functions. See Kaufman v. United States, supra, at 229; Mishkin, The Supreme Court, 1964 Term—Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 77-101 (1965). First, it seeks to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. It follows from this that all "new" constitutional rules which significantly improve the pre-existing fact-finding procedures are to be retroactively applied on habeas. See my Brother BLACK'S dissent in Kaufman v. United States, supra, at 235-236. The new habeas, however, is not only concerned with those rules which substantially affect the fact-finding apparatus of the original trial. Under the prevailing notions, Kaufman v. United States, supra, at 224-226, the threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, the habeas court need not, as prior cases make clear, necessarily apply all "new" constitutional rules retroactively. In these cases, the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.

The theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is, however, one which is more complex than the Court has seemingly recognized. First, it is necessary to determine whether a particular decision has really announced a "new" rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law. Only a short time ago, for example, we attempted to define with more precision the conditions governing the issuance of a search warrant under the Fourth Amendment. Spinelli v. United States, 393 U.S. 410 (1969). While we had never previously encountered the precise situation raised in Spinelli, our decision in that case rested upon the established doctrine that a magistrate may issue a warrant only when he can judge for himself the validity of the affiant's conclusion that criminal activity is involved. Johnson v. United States, 333 U.S. 10, 14 (1948); Aguilar v. Texas, 378 U.S. 108 (1964). Surely, it could not be thought that Spinelli should not be retroactively applied under the expanded habeas process because it was not announced until 1969. One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation. In such a context it appears very difficult to argue against the application of the "new" rule in all habeas cases since one could never say with any assurance that this Court would have ruled differently at the time the petitioner's conviction became final.

In the Katz case, however, one can say with assurance that there was a time at which this Court would have ruled differently. For in Olmstead, Goldman, and On Lee,3 the Court did just that. Even under the prevailing view of habeas, this fact should be of significance. Although the threat of collateral attack may be necessary to assure that the lower federal and state courts toe the constitutional line, the lower courts cannot be faulted when, following the doctrine of stare decisis, they apply the rules which have been authoritatively announced by this Court. If anyone is responsible for changing these rules, it is this Court.

Even in this situation, however, the doctrine of stare decisis cannot always be a complete answer to the retroactivity problem if a habeas petitioner is really entitled to the constitutional law which prevailed at the time of his conviction. Consider, for example, the state of Fourth Amendment law as it existed after our decision in Silverman v. United States, 365 U.S. 505 (1961). As my Brother STEWART notes today, ante, at 248, Silverman went a long way toward rejecting the principles supporting the Goldman and Olmstead rules. The Court in Silverman cautioned that the scope of the Fourth Amendment's protection is "not inevitably measurable in terms of ancient niceties of tort or real property law." 365 U. S., at 511. The majority's opinion concluded with the warning: "We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch." Id., at 512. It is hard to believe that any lawyer worthy of the name could, after reading Silverman, rely with confidence on the continuing vitality of the Goldman rule. Nor is it by any means clear to me that it would have been improper for a lower court to have declined to follow Goldman in the light of Silverman.4 Given the deterrence purpose of the expanded habeas corpus, it thus could be persuasively argued that the Katz rule should be applied to all cases which had not become final at the time Silverman was decided.5

C.

Katz, of course, has been one of the lesser innovations of a decade that has witnessed revolutionary changes in the most fundamental premises of hitherto accepted constitutional law. And similar difficulties arise as to the retroactive application of the Court's other landmark decisions if one is to insist that a habeas petitioner is entitled to the law as it stood at the time of his conviction. It is possible to argue, for example, that the Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961), imposing the exclusionary rule on the States, was a sufficient indication to the lower courts that they should no longer rely on the doctrine of stare decisis when confronted with the claim that other Bill of Rights guarantees should be incorporated into the Due Process Clause of the Fourteenth Amendment. It would follow from this position that all subsequent decisions incorporating various other provisions of the Bill of Rights into Due Process should be applied to all cases arising on habeas which were pending on appeal at the time Mapp was decided.

On the other hand, one could argue that stare decisis was still the appropriate rule for the lower courts until this Court made it clear that a particular guarantee was applicable to the States. It would follow from this position that the Court's decision in Griffin v. California, 380 U.S. 609 (1965), should be retroactively applied only to Malloy v. Hogan, 378 U.S. 1 (1964), which was the first case beginning the process of incorporating the Fifth Amendment's privilege against self-incrimination, and that Duncan v. Louisiana, 391 U.S. 145 (1968), should not be applied to any of those cases which had become final before that decision required the States to provide criminal jury trials on the same basis as the Federal Government.

Neither of these positions would be squarely inconsistent with the Court's new view of habeas corpus. Indeed, if the Court in Mapp had given any indication whatever that it accepted my Brother BLACK'S "incorporationist" philosophy in its pristine purity, see Adamson v. California, 332 U.S. 46, 68-123 (1947), it would appear that it would have been improper for the lower courts to rely on the old precedents to respond to the new claims advanced by criminal defendants. However, the Court has never accepted MR. JUSTICE BLACK'S constitutional premises in full-blown form. Instead, it has embarked on a course of "selective incorporation" in which the nature of each particular Bill of Rights guarantee has been examined before it was imposed upon the States. Given the ad hoc character of this approach, and given the fundamental place of federalism in the traditional conception of constitutional adjudication, it could certainly be strongly argued that the lower courts could properly follow the traditional due process approach until the time this Court made it clear that a particular Bill of Rights guarantee had been incorporated.

The relationship for retroactivity purposes among the Escobedo, Miranda, Wade, and Gilbert decisions6 presents another difficult problem under the new habeas corpus concept. It can be argued that the "line-up" cases, Wade and Gilbert, should be retroactively applied to all those cases pending when Miranda was decided. Since Miranda placed affirmative requirements upon police officers to assure that the accused would have an opportunity to obtain counsel at one "critical stage" of the criminal process, neither police officials nor the lower courts, it might be argued, could properly assume that other critical stages would not be comparably treated. Similarly, it may be suggested that the rules announced in both Miranda and the "line-up" cases should be applied to all cases still pending on appeal when Escobedo v. Illinois announced that the Sixth Amendment applied in the police station. For Gideon v. Wainwright, 372 U.S. 335 (1963), had already established the proposition that the State must provide free counsel to indigents at the criminal trial.

It is doubtless true that a habeas court encounters difficult and complex problems if it is required to chart out the proper implications of the governing precedents at the time of a petitioner's conviction. One may well argue that it is of paramount importance to make the "choice of law" problem on habeas as simple as possible, applying each "new" rule only to those cases pending at the time it is announced. While this would obviously be simpler, simplicity would be purchased at the cost of compromising the principle that a habeas petitioner is to have his case judged by the constitutional standards dominant at the time of his conviction.

I do not pretend to have exhausted in the foregoing discussion all the complexities of the retroactivity problem on habeas. But the considerations I have canvassed suggest that we should take a hard look at where we are going in the retroactivity field so that this new doctrine may be administered in accordance with the basics of the judicial tradition. Unfortunately, the Court does not even attempt this task.

For the reasons stated in Part I of this opinion I cannot subscribe to the affirmance of the judgment of the Court of Appeals. I would remand the case to that court for reconsideration in light of Katz v. United States.

MR. JUSTICE FORTAS, dissenting.*

The decisions today in Kaiser v. New York and Desist v. United States apply to only the limited number of cases where the constitutionally forbidden wiretap or eavesdropping occurred prior to December 18, 1967. It was on that day that we decided Katz v. United States, 389 U.S. 347, which administered the formal coup de grace to the moribund doctrine of Olmstead v. United States, 277 U.S. 438 (1928). The Court in effect grants absolution to police invasions of individual privacy by wiretaps and electronic devices not involving physical trespass, as long as the unconstitutional conduct took place before Katz. It holds that only from and after Katz will it apply the Fourth Amendment's command without reference to whether a physical trespass was involved. The significance of the decisions is not only that they deprive a relatively few convicted persons of their constitutional rights, but also that they diminish the Constitution; they imply that the availability of constitutional principle can be the subject of judicial choice in circumstances which, I respectfully submit, are far from compelling. I cannot agree.

The Court says that it has authority to determine whether a ruling will be made "retroactive," and it gives several reasons for its decision not to apply Katz "retroactively": (1) Katz "was a clear break with the past" because it repudiated Olmstead's requirement of a physical trespass into the accused's home or office, ante, at 248; (2) the purpose of the Katz rule excluding evidence even where there was no physical intrusion was to deter police invasion of constitutional rights, a purpose that would not be aided by "retrospective" application of the ruling; (3) police and courts alike, until Katz, justifiably relied upon the continuing vitality of Olmstead; and (4) it would unduly burden law administration to apply Katz "retroactively." The Court derives these factors from various of its decisions, commencing with Linkletter v. Walker, 381 U.S. 618 (1965),1 in which decisions of this Court have been held to apply prospectively only.2

In my judgment the Court's holding is of pervasive importance because it adds new and unhappy dimensions to the "non-retroactivity" doctrine. Not only does the Court deny the benefit of a fundamental constitutional provision, and not merely of court-made rules implementing a constitutional mandate3 or of a statutory principle,4 to a class of persons because of the chance operation of the judicial calendar; it does so in face of the fact that the ruling at issue is neither novel nor unanticipated. The Court's statement to the contrary is, as I shall discuss, simply insupportable.

I.

I do not challenge this Court's power to decline to apply newly devised rules implementing constitutional principles to prior cases or situations, or its authority to make similar accommodation when it changes long-standing statutory interpretations. Most of the Court's "non-retroactivity" holdings have emerged in state cases dealing with the application of a ruling that was relatively unpresaged and the practical effect of which, if applied to the past as well as the future, would be acutely disruptive of state practice and institutions. In those cases the pressures of comity and the hesitancy drastically to nullify state actions lent special force to the demand that the decision should not be applied "retroactively." In DeStefano v. Woods, 392 U.S. 631 (1968), for example, these circumstances were deemed to warrant only prospective application of the right to trial by jury in state prosecutions that was established in Duncan v. Louisiana, 391 U.S. 145 (1968), and Bloom v. Illinois, 391 U.S. 194 (1968).

The Court so held even though it thereby let stand convictions that had been rendered pursuant to a faulty reading of the Constitution. Even where considerations that favor "non-retroactivity" exist, however, a new constitutional rule will not always be "non-retroactively" applied. The Court has insisted that all persons, not just those selected by the chance of the calendar, receive the benefit of newly declared constitutional commands that are central to the reliability of the fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e. g., Roberts v. Russell, 392 U.S. 293 (1968) (holding retroactive Bruton v. United States, 391 U.S. 123 (1968)); McConnell v. Rhay, 393 U.S. 2 (1968) (holding retroactive Mempa v. Rhay, 389 U.S. 128 (1967)); Arsenault v. Massachusetts, 393 U.S. 5 (1968) (holding retroactive White v. Maryland, 373 U.S. 59 (1963)); Berger v. California, 393 U.S. 314 (1969) (holding retroactive Barber v. Page, 390 U.S. 719 (1968)); Gideon v. Wainwright, 372 U.S. 335 (1963); Griffin v. Illinois, 351 U.S. 12 (1956); Jackson v. Denno, 378 U.S. 368 (1964).

In the present cases, the Court decides that the lawfulness of wiretaps and electronic eavesdropping occurring before December 18, 1967, will be controlled by Olmstead v. United States, supra, a decision that the Court agrees is a false and insupportable reading of the Constitution. The Court holds that the Fourth Amendment meant something quite different before Katz was decided than it means afterwards; that Katz and persons whose rights are violated after the date of that decision may have the benefit of the true meaning of the constitutional provision, but that those who were victims before Katz may not.

If such a distinction in the application of a substantive constitutional principle can ever be justified, it can be only in the most compelling circumstances. Such circumstances might possibly exist if the newly announced principle related only to the States, in that it extended to the States a principle heretofore deemed to apply only to the Federal Government, or if "retroactive" application would place an extreme burden on the administration of justice; if the new ruling were wholly unanticipated in the decisions of the Court; and if the new rule did not directly and clearly affect the fairness of the trial. Cf. DeStefano v. Woods, supra; Johnson v. New Jersey, 384 U.S. 719 (1966); Linkletter v. Walker, supra. But there is no justification for refusing "retroactive" application to a constitutional principle merely because of an earlier reading of the Constitution that had been widely repudiated as unsound and that this Court's own intervening opinions had discredited, although not expressly overruled. Olmstead is in this category. Katz did no more than administer the coup de grace to its moribund doctrine. The action of the Court today cannot be justified by claiming that it is required by Olmstead's continued vitality. On the contrary, the Court today breathes life into Olmstead's corpse.

II.

In Kaiser v. New York, the Court affirms a state conviction despite the fact that the conviction was based upon telephone conversations that the police had recorded by a wiretap. The petitioner made the telephone calls to a coconspirator at a bar in Manhattan. The police had installed a wiretap device in the terminal box in the building where the bar was located.

The taps were made pursuant to a warrant issued under a New York statute. The warrant cannot, however, support the use of the wiretap evidence, for in Berger v. New York, 388 U.S. 41, decided on June 12, 1967, we held that the New York statute did not comply with Fourth Amendment requirements. The Court's decision rests instead on the fact that the petitioner's conversations were intercepted and recorded without a trespass and on the assertion that the Olmstead doctrine was fully viable at the time that the petitioner's telephone conversations were overheard.

In Desist v. United States, the federal case decided today, the federal agents attached the "uninvited ear" of the microphone to the outer instead of the inner panel of the double door separating their hotel room from that of the petitioners. Because of this distinction, their conduct is today held to be immunized from Fourth Amendment attack. Olmstead would sanction the differentiation. If the microphone had been attached to the inner panel, or if the agents had used a device that impinged by 1/1000th of an inch upon the room rented by petitioners, Olmstead would not have sanctified the result. See Silverman v. United States, 365 U.S. 505 (1961).5

This distinction is, of course, nonsense, as I suppose most rational persons would agree; and I am unwilling to suppose that if the majority in Olmstead had foreseen the ensuing development and uninhibited use of electronic devices for searching out and seizing the words of others, it would have nevertheless allowed the perimeter of physical property rights to limit the Fourth Amendment's protection of citizens' privacy from unseen invasion.

In any event, there is no doubt that Olmstead was thoroughly repudiated by this Court long before December 18, 1967, when Katz was decided. Katz is not responsible for killing Olmstead. Prior cases had left the physical-trespass requirement of Olmstead virtually lifeless and merely awaiting the death certificate that Katz gave it. They demonstrated to all who were willing to receive the message that Olmstead would not shield eavesdropping because it took place outside the physical property line. Silverman v. United States, supra; Clinton v. Virginia, 377 U.S. 158 (1964); Berger v. New York, supra.

Not for 17 years, until this day, has this Court applied Olmstead to sanction a Fourth Amendment violation because of Olmstead's peculiar distinction.6 Statements by the Department of Justice in recent years have placed no reliance upon Olmstead's quaint constriction of the individual's area of privacy.7 The Omnibus Crime Control and Safe Streets Act of 1968, recently enacted by Congress, does not recognize Olmstead's long-outmoded distinction between permissible and impermissible invasions of privacy. That statute requires judicial authorization for wiretaps and electronic surveillance, whether or not they would involve a physical trespass. Pub. L. 90-351, Tit. III, 82 Stat. 211. The New York statute involved in Kaiser purports to require warrants for eavesdropping, but it makes no such absurd distinction as Olmstead describes. N. Y. Code Crim. Proc. § 813-a.

Only those police officials and courts whose devotion to wiretapping and electronic surveillance is so intense as to induce them to exploit those techniques until the last spade of earth is shoveled on the doctrinal corpse have continued to rely on Olmstead. It is not the least of the unfortunate consequences of today's decisions that they validate this kind of foot-dragging. They reward those who fought the battle for uncontrolled police eavesdropping to the bitter end, despite the clear, though undelivered, verdict. They add this Court's approval to those who honor the Constitution's mandate only where acceptable to them or compelled by the precise and inescapable specifics of a decision of this Court. And they award dunce caps to those law enforcement officers, courts, and public officials who do not merely stand by until an inevitable decree issues from this Court, specifically articulating that which is clearly immanent in the fulfillment of the Constitution, but who generously apply the mandates of the Constitution as the developing case law elucidates them.

The full realization of our great charter of liberty, set forth in our Constitution, cannot be achieved by this Court alone. History does not embrace the years needed for us to hold, millimeter by millimeter, that such and such a penetration of individual rights is an infringement of the Constitution's guarantees. The vitality of our Constitution depends upon conceptual faithfulness and not merely decisional obedience. Certainly, this Court should not encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach.

The best evidence of the moribund state of Olmstead at the time Katz was decided is the Court's opinion in Katz itself. That opinion acknowledged and relied upon the fact that Olmstead had long ceased to have vitality. In Katz, the Court said:

Since Katz itself recognized that Olmstead had been "eroded by our subsequent decisions" and that we had "since departed from the narrow view on which [it] . . . rested," how can the Court now say that because Katz overruled Olmstead it "was a clear break with the past"? The issue presented by Desist and Kaiser is not whether the petitioners will be given the benefit of Katz. The issue is not whether Katz is "retroactive." The issue is whether because in Katz we formally announced that the "reach of [the Fourth Amendment] . . . cannot turn upon the presence or absence of a physical intrusion into any given enclosure," persons claiming the benefit of this principle prior to that date must be denied its protection. It is, I submit, entirely appropriate to state the issue in these terms because there can be no doubt whatever that if the present cases had been presented to this Court a day, a year, or a number of years before Katz, we would have held that the petitioners' constitutional rights had been violated, and that the petitioners were entitled, like any other citizens, to their constitutional rights. In these circumstances, I utterly fail to see how today's decisions can be justified. It is indeed a paradox that Katz, whose role it was to bury the corpse of Olmstead, is here being used to revive it.