# Desist v. United States/Dissent Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Harlan Fortas
United States Supreme Court
394 U.S. 244
Desist v. United States
Argued: Nov. 12, 1968. --- Decided: March 24, 1969
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, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), 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. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (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, 86 S.Ct. 1772, 16 L.Ed.2d 882 (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, 89 S.Ct. 61, 21 L.Ed.2d 212 (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, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (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, 381 U.S., at 639, 85 S.Ct., at 1743; see also Tehan v. United States ex rel. Shott, supra, 382 U.S., at 416, 86 S.Ct., at 465; Fuller v. Alaska, supra, 393 U.S., at 81, 89 S.Ct., at 62, this requirement was eroded to some extent in Johnson v. New Jersey, supra, 384 U.S., at 728-729, 86 S.Ct., at 1778-1779, and yet further in Stovall v. Denno, supra, 388 U.S., at 299, 87 S.Ct., at 1971, see also De Stefano 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, 384 U.S., at 731, 86 S.Ct., at 1779; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969), the Court today rejects such a contention. Ante, at 248. Indeed, the Court now also departs from preexisting 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, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), despite its concession that 'relatively few' federal cases would have to be reconsidered. Compare ante, at 251-252, with Linkletter v. Walker, supra, 381 U.S., at 637, 85 S.Ct., at 1742; Tehan v. United States ex rel. Shott, supra, 382 U.S., at 418-419, 86 S.Ct., at 466-467; Johnson v. New Jersey, supra, 384 U.S., at 731-732, 86 S.Ct., at 1779 1780; Stovall v. Denno, supra, 388 U.S., at 300, 87 S.Ct., at 1971.
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. In 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.
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, 2 L.Ed. 60 (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, 389 U.S., at 352-353, 88 S.Ct., at 511-512, 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, 88 S.Ct., at 512. Would we have reversed the case on the ground that th principles the Second Circuit had announced-though identical with those in Katz-should not control because Katz is not retroactive? To the contrary, I venture to say that we would have taken satisfaction that the lower court had reached the same conclusion we subsequently did in Katz. If a 'new' constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced. Anything else would belie the truism that it is the task of this Court, like that of any other, to do justice to each litigant on the merits of his own case. It is only if our decisions can be justified in terms of this fundamental premise that they may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature.
Re-examination of prior developments in the field of retroactivity leads me irresistibly to the conclusion that the only solid disposition of this case lies in vacating the judgment of the Court of Appeals and in remanding this case to that court for further consideration in light of Katz.
RETROACTIVITY ON HABEAS CORPUS.
What has already been said is, from my standpoint, enough to dispose of the case before us. Ordinarily I would not go further. But in this instance I consider it desirable and appropriate to venture some observations on the application of the retroactivity doctrine in habeas corpus cases, under the prevailing scope of the 'Great Writ' as set forth in this Court's 1963 decision in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and in today's decision in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227. 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.
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, 73 S.Ct. 397, 97 L.Ed. 469 (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. See my dissent in Fay v. Noia, supra, 372 U.S., at 449-463, 83 S.Ct., at 854-861; 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, 67 S.Ct. 1588, 91 L.Ed. 1982 (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.
The greatly expanded writ of habeas corpus seems at the present time to serve two principal functions. See Kaufman v. United States, supra, 394 U.S., at 229, 89 S.Ct., at 1075; 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, 89 S.Ct., at 1078-1079. 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, 89 S.Ct., at 1073-1074, 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, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). While we had never previously encountered the precis 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, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (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, 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, 81 S.Ct. 679, 5 L.Ed.2d 734 (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 measureable in terms of ancient niceties of tort or real property law.' 365 U.S., at 511, 81 S.Ct., at 682. 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, 81 S.Ct., at 683. 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. 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.
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, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (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, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), should be retroactively applied only to Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (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, 88 S.Ct. 1444, 20 L.Ed.2d 491 (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, 67 S.Ct. 1672, 1674-1711, 91 L.Ed. 1903 (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 decisions 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, 83 S.Ct. 792, 9 L.Ed.2d 799 (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.

## Notes

* ↑ In one instance this doctrine has been applied to a nonconstitutional decision. See Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), and its aftermath in Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968).
* ↑ An exception to this general rule was made, however, when the habeas petitioner attacked the constitutionality of the state statute under which he had been convicted. See, e.g., Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1880). Since, in this situation, the State had no power to proscribe the conduct for which the petitioner was imprisoned, it could not constitutionally insist that he remain in jail.
* ↑ Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).
* ↑ After Silverman was decided, we were careful to frame our decisions in such a way that a direct consideration of the 'trespass' doctrine could be avoided. In Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963), we noted that: 'The validity of (Olmstead and Goldman) is not in question here. Indeed this case involves no 'eavesdropping' whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant * * *.' In Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 the Court found that New York's eavesdropping statute contained impermissibly vague standards even with regard to the authorization of electronic surveillance requiring a trespass. It concluded that '(t)his disposition obviates the necessity for any discussion of the other points raised.' Id., at 44, 87 S.Ct., at 1876. Moreover, Berger made it clear that we had rejected Olmstead's declaration that the Fourth Amendment did not protect the integrity of private conversations. Such an action would hardly strengthen a lawyer's or lower court's confidence in the continuing vitality of the 'trespass' doctrine, which is also rooted in Olmstead.
* ↑ While I do not question much that my Brother FORTAS says in his dissenting opinion, I am unable to adopt the extreme position on retroactivity he proposes. Before Silverman was decided in 1961, no decision of this Court had undermined the conceptual basis of the Olmstead rule. Before 1961, even the most conscientious police department or judge had no reason to doubt the validity of the 'trespass' rule. Nevertheless, Mr. Justice FORTAS would grant habeas corpus to prisoners whose convictions became final before Silverman. This result cannot be justified even if one assumes that it is proper for a habeas court to require 'conceptual faithfulness' to our opinions and 'not merely decisional obedience' to the rules they announce. See 394 U.S., at 277, 89 S.Ct., at 1052.
* ↑ Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
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