# Linkletter v. Walker/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Black
United States Supreme Court
381 U.S. 618
Linkletter v. Walker
Argued: March 11, 1965. --- Decided: June 7, 1965
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.
The Court of Appeals held, and this Court now concedes, that the petitioner Linkletter is presently in prison serving a nine-year sentence at hard labor for burglary under a 1959 Louisiana State Court conviction obtained by use of evidence unreasonably seized in violation of the Fourth and Fourteenth Amendments. On June 19, 1961, we decided Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 in which the Court specifically held that 'all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.' 367 U.S. at 655, 81 S.Ct. at 1691. Stating that this Court had previously held in Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, that the Fourth Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment, this Court in Mapp went on to add:
'In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.' 367 U.S., at 656, 81 S.Ct., at 1692.
Despite the Court's resounding promises throughout the Mapp opinion that convictions based on such 'unconstitutional evidence' would "find no sanction in the judgments of the courts," Linkletter, convicted in the state court by use of 'unconstitutional evidence,' is today denied relief by the judgment of this Court because his conviction became 'final' before Mapp was decided. Linkletter must stay in jail; Miss Mapp, whose offense was committed before Linkletter's, is free. This different treatment of Miss Mapp and Linkletter points up at once the arbitrary and discriminatory nature of the judicial contrivance utilized here to break the promise of Mapp by keeping all people in jail who are unfortunate enough to have had their unconstitutional convictions affirmed before June 19, 1961.
Miss Mapp's Ohio offense was committed May 23, 1957; Linkletter's Louisiana offense occurred more than a year later August 16, 1958. Linkletter was tried in Louisiana, convicted, the State Supreme Court affirmed, and a rehearing was denied March 21, 1960, all within about one year and seven months after his offense was committed. The Ohio Supreme Court affirmed Miss Mapp's conviction March 23, 1960, approximately two years and 10 months after her offense. Thus, had the Ohio courts proceeded with the same expedition as those in Louisiana, or had the Louisiana courts proceeded as slowly as the Ohio courts, Linkletter's conviction would not have been 'finally' decided within the Court's definition of 'finally' until within about 10 days of the time Miss Mapp's case was decided in this Court-which would have given Linkletter ample time to petition this Court for virtually automatic relief on direct review after the Mapp case was decided. The Court offers no defense based on any known principle of justice for discriminating among defendants who were similarly convicted by use of evidence unconstitutionally seized. It certainly cannot do so as between Linkletter and Miss Mapp. The crime with which she was charged took place more than a year before his, yet the decision today seems to rest on the fanciful concept that the Fourth Amendment protected her 1957 offense against conviction by use of unconstitutional evidence but denied its protection to Linkletter for his 1958 offense. In making this ruling the Court assumes for itself the virtue of acting in harmony with a comment of Justice Holmes that '(t)he life of the law has not been logic: it has been experience.' Justice Holmes was not there talking about the Constitution; he was talking about the evolving judge-made law of England and of some of our States whose judges are allowed to follow in the common law tradition. It should be remembered in this connection that no member of this Court has ever more seriously criticized it than did Justice Holmes for reading its own predilections into the 'vague contours' of the Due Process Clause. But quite apart from that, there is no experience of the past that justifies a new Court-made rule to perpetrate a grossly invidious and unfair discrimination against Linkletter simply because he happened to be prosecuted in a State that was evidently well up with its criminal court docket. If this discrimination can be excused at all it is not because of experience but because of logic-sterile and formal at that-not, according to Justice Holmes, the most dependable guide in lawmaking.
When we get beyond the way the new rule works as between people situated like Linkletter and Miss Mapp, the new contrivance stands no better. I say 'new' because the Court admits, as it must, that 'It is true that heretofore, without discussion, we have applied new constitutional rules to cases finalized before the promulgation of the rule.' Ante, p. 628. And the Court also refers to a number of cases in which that practice has been followed. For example, in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, where we announced that a pauper could not be denied the right to appeal because of his indigency, a suggestion was made in a concurring opinion that the Court should apply its new rule to future cases only. Id., at 25-26, 76 S.Ct., at 594-595. However, in 1958 this Court did apply the Griffin rule to a conviction obtained in 1935, over the dissents of two Justices who said that the Griffin case decided in 1956 should not determine the constitutionality of the petitioner's 1935 conviction. Eskridge v. Washington State Parole Bd., etc., 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269.
Interesting as the question may be abstractly, this case should not be decided on the basis of arguments about whether judges 'make' law or 'discover' it when performing their duty of interpreting the Constitution. This Court recognized in Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 319, 84 L.Ed. 329, an opinion in which I joined, that 'an allinclusive statement of a principle of absolute retroactive invalidity cannot be justified.' And where state courts in certain situations chose to apply their decisions to the future only, this Court also said that, 'the federal constitution has no voice' forbidding them to do so. Great Northern Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360. But cf. Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (dissenting opinion). In stating this Court's position on the question, the opinion in the Chicot County case recognized that rights and interests may have resulted from the existence and operation of a statute which should be respected notwithstanding its later being declared unconstitutional:
'The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,-with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination.' 308 U.S., at 374, 60 S.Ct., at 318.
Thus in Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927, when this Court created an entirely new rule imposing heavy financial liability on a trustee in bankruptcy for acts which at the time he performed them had been perfectly valid under the law, I dissented, stating my belief that although there was 'much to be said in favor of such a rule (of trustee liability) for cases arising in the future,' 341 U.S., at 276, 71 S.Ct., at 684, it should not be applied against trustees who had in good faith relied on the existence of a different rule in the past. On the other hand, in James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246, I suggested in an opinion in which Mr. Justice Douglas joined, that there were objections having a peculiar force in the field of criminal law to a judicial rule to the effect that courts 'should make their decisions as to what the law is apply only prospectively.' A major basis for what we said there was stated this way:
'Our trouble with this aspect of the Court's action is that it seems to us to indicate that the Court has passed beyond the interpretation of the tax statute and proceeded substantially to amend it.
'In our judgment one of the great inherent restraints upon this Court's departure from the field of interpretation to enter that of lawmaking has been the fact that its judgments could not be limited to prospective application.' 366 U.S., at 224-225, 81 S.Ct., at 1058-1059.
I adhere to my views in James, expressing opposition to a general rule that would always apply new interpretations of criminal laws prospectively. Doubtless there might be circumstances in which applying a new interpretation of the law to past events might lead to unjust consequences which, as we said in Chicot, cannot justly be ignored.' No such unjust consequences to Linkletter, however, can possibly result here by giving him and others like him the benefit of a changed constitutional interpretation where he is languishing in jail on the basis of evidence concededly used unconstitutionally to convict him. And I simply cannot believe that the State of Louisiana has any 'vested interest' that we should recognize in these circumstances in order to keep Linkletter in jail. I therefore would follow this Court's usual practice and apply the Mapp rule to unconstitutional convictions which have resulted in persons being presently in prison.
In refusing to give Linkletter the benefit of the Mapp rule, the Court expresses the view that its 'approach is particularly correct with reference to the Fourth Amendment's prohibitions as to unreasonable searches and seizures,' indicating a disparaging view of the Fourth Amendment that leaves me somewhat puzzled after Mapp and other recent opinions talking about the indispensable protections of the Amendment. Ante, p. 629. Then the Court goes on to follow a recent pattern of balancing away Bill of Rights guarantees and balances away in great part the Fourth Amendment safeguards one could reasonably have expected from the Mapp opinion and the opinion in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, which opened up to collateral attack all unconstitutional convictions even though 'final.' Even using the Court's own balancing process, however, I think those now in prison under convictions resting on the use of unconstitutionally seized evidence should have their convictions set aside and be granted new trials conducted in conformity with the Constitution.
As the Court concedes, ante, p. 628, this is the first instance on record where this Court, having jurisdiction, has ever refused to give a previously convicted defendant the benefit of a new and more expansive Bill of Rights interpretation. I am at a loss to understand why those who suffer from the use of evidence secured by a search and seizure in violation of the Fourth Amendment should be treated differently from those who have been denied other guarantees of the Bill of Rights. Speaking of the right guaranteed by the Fourth and Fifth Amendments not to be convicted on 'unconstitutional evidence,' the Court said in Mapp, only four years ago, that:
'* * * we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him * * *.' 367 U.S., at 660, 81 S.Ct., at 1694. (Emphasis supplied.)
Linkletter was convicted on 'unconstitutional evidence.' He brought this federal habeas corpus proceeding seeking relief from his prior conviction, which this Court held in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, was the proper way to challenge a previous conviction unconstitutionally obtained. Evidence used against Noia, however, was not obtained by an unlawful search and seizure but by a coerced confession. Noia's conviction had taken place 21 years before his case reached this Court, and was therefore 'final.' And in Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, decided in 1961, this Court set aside the conviction of Reck for a 1936 offense on the ground that a coerced confession had been used against him.
There are peculiar reasons why the Mapp search and seizure exclusionary rule should be given like dignity and effect as the coerced confession exclusionary rule. Quite apart from the Court's positive statement in Mapp that the right guaranteed by the Fourth and Fifth Amendments not to be convicted through use of unconstitutionally seized evidence should be given 'like effect as other basic rights secured by the Due Process Clause * * *,' Mapp, like most other search and seizure exclusionary rule cases, relied heavily on Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. In reaching the conclusion in Boyd that evidence obtained by unlawful search and seizure could not be admitted nin evidence, the Boyd Court relied on the Fifth Amendment's prohibition against compelling a man to be a witness against himself. The Boyd Court held that the Fifth Amendment's prohibition against self-incrimination gave constitutional justification to exclusion of evidence obtained by an unlawful search and seizure. The whole Court treated such a search and seizure as compelling the person whose property was thus taken to give evidence against himself. There was certainly nothing in the Boyd case to indicate that the Fourth and Fifth Amendments were to be given different dignity and respect in determining what, when and under what circumstances persons are entitled to their full protection. See One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 703, 85 S.Ct. 1246, 1252 (concurring opinion).
This Court's opinion in Mapp not only by the express language already quoted but in numerous other places treated the two amendments as inseparable from the standpoint of the exclusionary rule. Speaking of the two, the Court said:
'(T)he very least that together they assure in either sphere is that no man is to be convicted on unconstitutional evidence.' 367 U.S., at 657, 81 S.Ct., at 1692.
"(C)onviction by means of unlawful seizures and enforced confessions * * * should find no sanction in the judgments of the courts * * *." Id., at 648, 81 S.Ct., at 1688.
This statement appearing in Mapp had originally been made in Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652. Weeks, which established the federal exclusionary rule for the first time, did so by relying greatly on the Boyd case and Boyd's treatment of unlawful seizures and enforced confessions as falling into precisely the same constitutional category. Yet the Court today by a chain of circuitous reasoning degrades the search and seizure exclusionary rule to a position far below that of the rule excluding evidence obtained by coerced confessions. The result is that this departure from the philosophy of Mapp denies Linkletter a right to challenge his conviction for an offense committed in August 1958 while it leaves Miss Mapp free because of an offense she committed in 1957.
One reason-perhaps a basic one-put forward by the Court for its refusal to give Linkletter the benefit of the search and seizure exclusionary rule is the repeated statement that the purpose of that rule is to deter sheriffs, policemen, and other law officers from making unlawful searches and seizures. The inference I gather from these repeated statements is that the rule is not a right or privilege accorded to defendants charged with crime but is a sort of punishment against officers in order to keep them from depriving people of their constitutional rights. In passing I would say that if that is the sole purpose, reason, object and effect of the rule, the Court's action in adopting it sounds more like lawmaking than construing the Constitution. Compare Mapp v. Ohio, 367 U.S. 643, 661, 81 S.Ct. 1684, 1694 (concurring opinion). Both the majority and the concurring members of the Boyd Court seemed to believe they were construing the Constitution. Quite aside from that aspect, however, the undoubted implication of today's opinion that the rule is not a safeguard for defendants but is a mere punishing rod to be applied to law enforcement officers is a rather startling departure from many past opinions, and even from Mapp itself. Mapp quoted from the Court's earlier opinion in Weeks v. United States, supra, certainly not with disapproval, saying that the Court 'in that case clearly stated that use of the seized evidence involved 'a denial of the constitutional rights of the accused." 367 U.S., at 648, 81 S.Ct., at 1688. I have read and reread the Mapp opinion but have been unable to find one word in it to indicate that the exclusionary search and seizure rule should be limited on the basis that it was intended to do nothing in the world except to deter officers of the law. Certainly no such limitation is implied by the Court's statement in Mapp that without the rule:
'(T)he assurance against unreasonable * * * searches and seizures would be 'a form of words,' valueless and undeserving of mention in a perpetual charter of inestimable human liberties * * *.' 367 U.S., at 655, 81 S.Ct., at 1691.
The Court went on to indicate its belief that the rule was "implicit in 'the concept of ordered liberty,'" id., at 655, 81 S.Ct., at 1691, and that it is an 'essential ingredient' of the constitutional guarantee. Id., at 651, 81 S.Ct., at 1689. If the exclusionary rule has the high place in our constitutional plan of 'ordered liberty,' which this Court in Mapp and other cases has so frequently said that it does have, what possible valid reason can justify keeping people in jail under convictions obtained by wanton disregard of a constitutional protection which the Court itself in Mapp treated as being one of the 'constitutional rights of the accused'?
The Court says that the exclusionary rule's purpose of preventing law enforcement officers from making lawless searches and seizures 'will not at this late date be served by the wholesale release of the guilty victims.' Ante, p. 637. It has not been the usual thing to cut down trial protections guaranteed by the Constitution on the basis that some guilty persons might escape. There is probably no one of the rights in the Bill of Rights that does not make it more difficult to convict defendants. But all of them are based on the premise, I suppose, that the Bill of Rights' safeguards should be faithfully enforced by the courts without regard to a particular judge's judgment as to whether more people could be convicted by a refusal of courts to enforce the safeguards. Such has heretofore been accepted as a general maxim. In answer to an argument made in the Mapp case, that application of the exclusionary rule to the States might allow guilty criminals to go free, this Court conceded that:
'In some cases this will undoubtedly be the result. * * * The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.' Mapp v. Ohio, supra, at 659, 81 S.Ct., at 1693.
'To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witnesses available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice.' Ante, pp. 637-638.
This same argument would certainly apply with much force to many cases we have heard in the past including Reck v. Pate, supra, and Fay v. Noia, supra. Reck was directed to be given a new trial 25 years after his offense and Noia 21 years after conviction. Both were given relief under just 'such an extraordinary procedural weapon' as the Court seems today to inveigh against. Indeed in Noia's case this Court went to great lengths to explain in an exhaustive and in what I consider to be a very notable and worthwhile opinion that habeas corpus was designed to go behind 'final' judgments and release people who were held on convictions obtained by reason of a denial of constitutional rights. A glance at the briefs and this Court's opinions in both Reck and Noia will reveal that this Court rejected precisely the same kind of arguments and reasoning that I have just quoted from the Court's opinion justifying its judgment in this case. What the Court held in Noia did not, as the dissenting Justice charged it would, seriously disrupt the administration of justice. It merely opened up to collateral review cases of men who were in prison due to convictions where their constitutional rights had been disregarded. Noia rested on the sound principle that people in jail, without regard to when they were put there, who were convicted by the use of unconstitutional evidence were entitled in a government dedicated to justice and fairness to be allowed to have a new trial with the safeguards the Constitution provides.
Little consolation can be gathered by people who languish in jail under unconstitutional convictions from the Court's statement that 'the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.' Ante, p. 637. Linkletter is still in jail. His claim is no more 'too late' than was Noia's.
The plain facts here are that the Court's opinion cuts off many defendants who are now in jail from any hope of relief from unconstitutional convictions. The opinion today also beats a timid retreat from the wholesome and refreshing principles announced in Noia. No State should be considered to have a vested interest in keeping prisoners in jail who were convicted because of lawless conduct by the State's officials. Careful analysis of the Court's opinion shows that it rests on the premise that a State's assumed interest in sustaining convictions obtained under the old, repudiated rule outweighs the interests both of that State and of the individuals convicted in having wrongful convictions set aside. It certainly offends my sense of justice to say that a State holding in jail people who were convicted by unconstitutional methods has a vested interest in keeping them there that outweighs the right of persons adjudged guilty of crime to challenge their unconstitutional convictions at any time. No words can obscure the simple fact that the promises of Mapp and Noia are to a great extent broken by the decision here. I would reverse.

## Notes

* ↑ Holmes, The Common Law 5 (Howe ed. 1963).
* ↑ Adkins v. Children's Hosital, 261 U.S. 525, 568, 43 S.Ct. 394, 405, 67 L.Ed. 785 (dissenting opinion).
* ↑ See United States ex rel. Angelet v. Fay, 333 F.2d 12, 27 (dissenting opinion of Judge Marshall).
* ↑ Mr. Justice Miller, joined by Chief Justice Waite, agreed with the Court that the Fifth Amendment barred use at a trial of evidence obtained through a subpoena compelling production of a man's private papers to be used in a criminal prosecution of him; Mr. Justice Miller did not agree that a statute authorizing such a subpoena violated the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 638, 6 S.Ct. 524, 536.
* ↑ See Fay v. Noia, 372 U.S. 391, 445, 83 S.Ct. 822, 852 (Clark, J., dissenting).
* ↑ 'Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely not just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is
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