401 U.S.

646
91 S.Ct. 1148
28 L.Ed.2d 388

Clarence WILLIAMS, Petitioner,

v.
UNITED STATES. Joseph ELKANICH, Petitioner, v.
UNITED STATES.
Nos. 81, 82.
Argued Oct. 21, 1970.
Decided April 5, 1971.

Syllabus
In No. 81, here on direct review, petitioner was convicted of selling
narcotics after a trial in which heroin seized in a search incident to his
arrest was introduced into evidence. The Court of Appeals affirmed,
holding that the intervening decision in Chimel v. California, 395 U.S.
752, 89 S.Ct. 2034, 23 L.Ed.2d 685, narrowing the scope of permissible
searches incident to arrest, was not to be retroactively applied to searches
antedating the date it was decided, and that the search was valid under
pre-Chimel law. Evidence at the trial of petitioner in No. 82 included
marked bills seized during a pre-Chimel search of his apartment following
his arrest on narcotics charges. The arrest and search were upheld at trial,
on direct appeal, and in the District Court and Court of Appeals in
proceedings under 28 U.S.C. 2255. Held: The judgments are affirmed.
Pp. 649666, 699700.
No. 81, 9 Cir., 418 F.2d 159, and No. 82, affirmed.
Mr. Justice WHITE, joined by THE CHIEF JUSTICE, Mr. Justice
STEWART, and Mr. Justice BLACKMUN, concluded that Chimel,
supra, is not retroactive and should not be applied to searches conducted
prior to the date of that decision. Pp. 649659.

(a) Where the major purpose of a new constitutional standard is not to

overcome an aspect of a criminal trial that substantially impairs the truth-

finding function and thus raises serious questions about the accuracy of guilty
verdicts in past trials, the new rule does not require retrospective application. P.
653.
2

(b) The Constitution does not require that pre-Chimel searches be measured by
the new Chimel standards, Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030,
22 L.Ed.2d 248. Petitioners' rights under then-existing law were not violated
either before or during trial, it is not claimed that the evidence was
constitutionally insufficient to prove guilt, and the purpose of the exclusionary
rule will be sufficiently implemented by applying Chimel to searches occurring
after the date of decision in that case. P. 656.

(c) There is no constitutional difference between the applicability of Chimel to

convictions here on direct appeal and those involving collateral proceedings, or
between federal and state prisoners. Pp. 656659.

Mr. Justice BRENNAN concluded that the question is not whether every
person convicted through evidence obtained contrary to Chimel, supra, is
guilty, but rather whether Chimel compels the conclusion that the invasion of
petitioners' privacy, conducted in justifiable but mistaken reliance upon the
continuing validity of pre-Chimel standards, requires the exclusion of the fruits
of that invasion from the factfinding process. He agreed with the plurality
opinion that it does not, and that the Chimel rule should not be applied
retroactively. Pp. 660665.

Mr. Justice BLACK concurred in the result on the ground that Chimel, supra,
was wrongly decided. P. 660.

Mr. Justice HARLAN concluded that the judgment should be affirmed in No.
82, here on collateral review, as the search in that case should not be subjected
to the requirements of Chimel, supra, since petitioner's conviction became final
prior to Chimel, then-prevailing law validated the search, and the conviction
was obtained by methods not fundamentally unfair. Pp. 699700.

Mr. Justice MARSHALL concluded that the judgment in No. 82 should be

affirmed, as the mode of analysis in the plurality opinion is appropriate in cases
here on collateral review, and the Chimel rule should not be applied
retroctively in such cases. Pp. 665666.

Henry Florence, Phoenix, Ariz., for petitioner Clarence Williams.

Charles A. Miller, Washington, D.C., for petitioner Joseph Elkanich.

10

James van R. Springer, Washington, D.C., for respondent.

11

Mr. Justice WHITE announced the judgment of the Court and an opinion in
which THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice
BLACKMUN join.

12

The principal question in these cases is whether Chimel v. California, 395 U.S.
752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), should be applied retroactively
either to the direct review of petitioner Williams' conviction or in the collateral
proceeding initiated by petitioner Elkanich.

13

* In No. 81, federal agents on March 31, 1967, secured a warrant to arrest
petitioner Williams on charges of selling narcotics in violation of 21 U.S.C.
174. Williams was arrested at his home that night. A quantity of heroin was
discovered and seized in the course of a search incident to the arrest. The trial
court sustained the search and the heroin was introduced in evidence. Williams
was convicted and sentenced to a 10-year prison term. The judgment of
conviction was affirmed by the Court of Appeals for the Ninth Circuit.
Williams v. United States, 418 F.2d 159 (CA9 1969). That court held: (1) that
our intervening decision in Chimel v. California, supra, was not retroactive and
did not govern searches carried out prior to June 23, 1969, the date of that
decision; and (2) that the search was valid under pre-Chimel law evidenced by
United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950),
and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947).
The Court of Appeals also rejected a claim that the search was invalid because
the arrest was a mere pretext for an unwarranted search. We granted certiorari.
397 U.S. 986, 90 S.Ct. 1120, 25 L.Ed.2d 396 (1970).

14

In No. 82, petitioner Elkanich was convicted on three counts of selling

narcotics in violation of 21 U.S.C. 174. He was sentenced to three concurrent
10-year sentences. The evidence introduced included marked bills given by
federal agents to an intermediary to use in purchasing narcotics. The bills were
seized during a search of petitioner's apartment following his arrest there. The
search was challenged at trial on the ground that the arrest was invalid. Both
the arest and the incident search were upheld at trial and on direct appeal.
Elkanich v. United States, 327 F.2d 417 (CA9 1964), as well as by the District
Court and the Court of Appeals in subsequent proceedings brought by petitioner
under 28 U.S.C. 2255. We granted the petition for certiorari to consider the
effect, if any, of our Chimel decision, which intervened when the appeal from

denial of petitioner's 2255 application was pending in the Court of Appeals.

396 U.S. 1057, 90 S.Ct. 760, 24 L.Ed.2d 757 (1970). We affirm the judgments
in both cases.
II
15

Aside from an insubstantial claim by Williams that his arrest was invalid, 1
neither petitioner in this Court suggests that his conviction was
unconstitutionally obtained; no evidence and no procedures were employed at
or before trial that violated any then-governing constitutional norms.
Concededly, the evidence seized incident to the arrest of both petitioners was
both properly seized and admitted under the Fourth Amendment as construed
and applied in Harris in 1947 and Rabinowitz in 1950. Both Harris and
Rabinowitz, however, were disapproved by Chimel. That case considerably
narrowed the permissible scope of searches incident to arrest, and petitioners
argue that the searches carried out in these cases, if judged by Chimel
standards, were unreasonable under the Fourth Amendment and the evidence
seized inadmissible at trial.2 However, we reaffirm our recent decisions in like
situations: Chimel is not retroactive and is not applicable to searches conducted
prior to the decision in that case. Desist v. United States, 394 U.S. 244, 89 S.Ct.
1030, 22 L.Ed.2d 248 (1969).

16

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965),
we declined to give complete retroactive effect to the exclusionary rule of
Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Relying on
prior cases, we firmly rejected the idea that all new interpretations of the
Constitution must be considered always to have been the law and that prior
constructions to the contrary must always be ignored. Since that time, we have
held to the course that there is no inflexible constitutional rule requiring in all
circumstances either absolute retroactivity or complete prospectivity for
decisions construing the broad language of the Bill of Rights.3 Nor have we
accepted as a dividing line the suggested distinction between cases on direct
review and those arising on collateral attack.4 Rather we have proceeded to
'weigh the merits and demerits in each case by looking to the prior history of
the rule in question, its purpose and effect, and whether retrospective operation
will further or retard its operation.' Linkletter, supra, 381 U.S. at 629, 85 S.Ct.
at 1738. 5

17

Where the major purpose of new constitutional doctrine is to overcome an

aspect of the criminal trial that substantially impairs its truth-finding function
and so raises serious questions about the accuracy of guilty verdicts in past
trials, the new rule has been given complete retroactive effect.6 Neither good-

faith reliance by state or federal authorities on prior constitutional law or

accepted practice, nor severe impact on the administration of justice has
sufficed to require prospective application in these circumstances.
18

It is quite different where the purpose of the new constitutional standard

proscribing the use of certain evidence or a particular mode of trial is not to
minimize or avoid arbitrary or unreliable results but to serve other ends. In
these situations the new doctrine raises no question about the guilt of
defendants convicted in prior trials. Mapp v. Ohio cast no doubt on the
relevance or probity of illegally seized evidence but excluded it from criminal
trials to deter official invasions of individual privacy protected by the Fourth
Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967), overruled Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72
L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993,
86 L.Ed. 1322 (1942), and gave expanded Fourth Amendment protection
against nonconsensual eavesdropping. It followed that evidence obtained by
nontrespassory electronic surveillance of a public telephone booth became
subject to the exclusionary rule, which had been fashioned by the Court to exact
compliance with the Amendment rather than to protect defendants from
conviction on untrustworthy evidence. Thus the Court, when it came to
consider the retroactivity of Mapp and Katz, was dealing with cases quite
different from those situations where emerging constitutional doctrine casts
such doubt upon the soundness of some aspect of prior trials that State and
Federal Governments were disentitled from further pursuing the goals of their
criminal law against defendants convicted in such prior trials.

19

The petitioners in both Linkletter and Desist were convicted in proceedings that
conformed to all then-applicable constitutional norms. In both cases the
government involved had a concededly guilty defendant in custody and
substantial unsatisfied interests in achieving with respect to such defendant
whatever deterrent and rehabilitative goals underlay its criminal justice system.
Each defendant, Linkletter by the habeas corpus route, and Desist on direct
appeal, claimed the benefit of a later decided case and demanded a new trial.
But ordering new trials would have involved not only expense and effort but
the inevitable risk of unavailable witnesses and faulty memories; the authorities
might not have had the evidence they once had and might have been foreclosed
from obtaining other evidence they might have secured had they known the
evidence they were using was constitutionally suspect. Moreover, it was not
essential to the deterrent purpose of the exclusionary rule that Mapp and Katz
be given retroactive effect; indeed that purpose would have been only
marginally furthered by extending relief to Linkletter, Desist, and all others in
comparable situations. In these circumstances, we found no constitutional

warrant for setting aside either conviction.7

III
20

Considering that Desist represents the sound approach to retroactivity claims in

Fourth Amendment cases, we are confident that we are not constitutionally
bound to apply the standards of Chimel to the cases brought here by Elkanich
and Williams. Both petitioners were duly convicted when judged by the thenexisting law; the authorities violated neither petitioner's rights either before or
at trial. No claim is made that the evidence against them was constitutionally
insufficient to prove their guilt. And the Chimel rule will receive sufficient
implementation by applying it to those cases involving the admissibility of
evidence seized in searches occurring after Chimel was announced on June 23,
1969, and carried out by authorities who through mistake or ignorance have
violated the precepts of that decision.

IV
21

Both from the course of decision since Linkletter and from what has been said
in this opinion, it should be clear that we find no constitutional difference
between the applicability of Chimel to those prior convictions that are here on
direct appeal and those involving collateral proceedings. Nor in constitutional
terms is there any difference between state and federal prisoners insofar as
retroactive application to their cases is concerned.

22

We accept Mr. Justice HARLAN'S truism, stated in dissent, that our task is to
adjudicate cases and the issues they present, including constitutional questions
where necessary to dispose of the controversy. Hence, we must resolve the
Fourth Amendment issues raised by Elkanich and Williams. But this leaves the
question of how those issues should be resolved. Assuming that neither has a
colorable claim under the pre-Chimel law but both would be entitled to relief if
Chimel is the governing standard, which constitutional standard is to rule these
cases? This is the unavoidable threshold issueas Mr. Justice HARLAN
describes it in discussing cases before us on collateral review, a 'choice of law
problem.' Post, at 1175.

23

The opinions filed in these cases offer various answers to the question. We
would judge the claims in both Williams and Elkanich by the law prevailing
when petitioners were searched. Surely this resolution is no more legislative,
and no less judicial, than that of Mr. Justice HARLAN. He feels compelled to
apply new overruling decisions to cases here on direct review but deems
himself free, with some vague and inscrutable exceptions,8 to refuse the

benefits of new decisions to those defendants who collaterally attack their

convictions. The latter judgment seems to rest chiefly on his own assessment of
the public interest in achieving finality in criminal litigation. The former is not
explained at all except by repeated assertions that cases here on direct review
are different.9 But we have no authority to upset criminal convictions at will.
Does the Constitution compel us to apply Chimel retroactively and set aside
Williams' conviction when he was convicted on sound evidence secured in
conformity with the then-applicable constitutional law as announced by this
Court? As we have said, we think notno more so than it compels applying
the teachings of Chimel in reviewing the denial of Elkanich's petition for
collateral relief. Other than considering it inherent in the process of judicial
review, Mr. Justice HARLAN does not directly address the question. Nor does
he purport to explain how the purpose of the exclusionary rule fashioned by
this Court as a Fourth Amendment mechanism will be at all furthered by
mechanically affording Williams the benefit of Chimel.
24

We are also unmoved by the argument that since the petitioners in cases like
Mapp, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491
(1968), and Katz have been given relief, when it was only by chance that their
cases first brought those issues here for decision, it is unfair to deny relief to
others whose cases are as thoroughly deserving. It would follow from this
argument that all previous convictions that would be vulnerable if they
occurred today would be set aside. Surely this is the tail wagging the dog. The
argument was fairly met and adequately disposed of in Stovall v. Denno, 388
U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). We see no reason
to repeat or reconsider what we said in that case.

25

It is urged that the prevailing approach to retroactivity involves confusing

problems of identifying those 'new' constitutional interpretations that so change
the law that prospectivity is arguably the proper course. But we have no such
problems in these cases since to reach the result it did the Court in Chimel
found it necessary to disapprove Harris and Rabinowitz and under those cases
the search in Chimel and the searches now before us would ahve been deemed
reasonable for Fourth Amendment purposes. Moreover, the idea that
circumstances may require prospectivity for judicial decisions construing the
Constitution is an old one; it is not a new problem for the courts. It has not
proved unmanageable and we doubt that courts and judges have suddenly lost
the competence to deal with the problems that it may present.10

26

The judgments are affirmed.

27

Affirmed.

28

While joining the plurality opinion, Mr. Justice STEWART would also affirm
the judgment in No. 82, Elkanich v. United States, on the alternative ground
that the issue presented is not one cognizable in a proceeding brought under 28
U.S.C. 2255. See Harris v. Nelson, 394 U.S. 286, 307, 89 S.Ct. 1082, 1094,
22 L.Ed.2d 281 (dissenting opinion); Kaufman v. United States, 394 U.S. 217,
242, 89 S.Ct. 1068, 1082, 22 L.Ed.2d 227 (dissenting opinion); Chambers v.
Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 1983, 26 L.Ed.2d 419 (concurring
opinion).

29

Mr. Justice BLACK, while adhering to his opinion in Linkletter v. Walker, 381
U.S. 618, 640, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965), concurs in the
result on the ground that he believes that Chimel v. California, 395 U.S. 752, 89
S.Ct. 2034, 23 L.Ed.2d 685 (1969), was wrongly decided.

30

Mr. Justice DOUGLAS took no part in the consideration or decision of these

cases.

31

Mr. Justice BRENNAN, concurring in the result.

32

Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969),
applied principles established by a long line of cases1 to determinet he
permissible scope of a warrantless search sought to be justified as the necessary
incident of a lawful arrest. But in applying these principles to the circumstances
involved in Chimel, we were compelled to overrule Harris v. United States, 331
U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and United States v.
Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Harris and
Rabinowitz were founded on 'little more than a subjective view regarding the
acceptability of certain sorts of police conduct, and not on considerations
relevant to Fourth Amendment interests.' Chimel, supra, 395 U.S., at 764765,
89 S.Ct., at 2041; see United States v. Rabinowitz, supra, 339 U.S., at 83, 70
S.Ct., at 443 (Frankfurter, J., dissenting). By the time of Chimel, this view had
long since been rejected; but until that day, Harris and Rabinowitz survived as
direct authority for the proposition that a lawful arrest would somehow justify a
warrantless search of the premises on which the arrest was made, beyond the
immediate reach of the person arrested.2

33

Accordingly, we are presented in these cases with the question whether Chimel
should be applied to require the exclusion at trial of evidence which is the fruit
of a search, carried out before our decision in Chimel, and which would be
lawful if measured by the standards of Harris and Rabinowitz, but unlawful
under the rule of Chimel. The Court today holds that the fruits of searches

made prior to our decision in Chimel may be used in criminal trials if the
searches may be justified under the standards of Harris and Rabinowitz as those
standards had previously been applied. See, e.g., Von Cleef v. New Jersey, 395
U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969). I agree. In Stovall v. Denno,
388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967), we said that
34

'(t)he criteria guiding resolution of (this) question implicate (a) the purpose to
be served by the new standards, (b) the extent of the reliance by law
enforcement authorities on the old standards, and (c) the effect on the
administration of justice of a retroactive application of the new standards.'

35

All three factors imply that the rule of Chimel should be applied only to
searches carried out after Chimel was decided.

36

* Like the Fifth Amendment's protection against compulsory self-incrimination,

the warrant requirement of the Fourth Amendment stakes out boundaries
beyond which the government may not tread in forcing evidence or information
from its citizens. When coercion, impermissible under the Fifth Amendment,
has actually produced an involuntary statement, we have invariably held that
the fruits of that unconstitutional coercion may not be used to prosecute the
individual involved for crime. E.g., Rochin v. California, 342 U.S. 165, 173, 72
S.Ct. 205, 210, 96 L.Ed. 183 (1952) (Frankfurter, J.); Ashcraft v. Tennessee,
322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Boyd v. United States, 116
U.S. 616, 630635, 638, 6 S.Ct. 524, 532534, 536, 29 L.Ed. 746 (1886).3
Exclusion of statements impermissibly coerced is not merely a device to deter
government agents from improper conduct in the future. Exclusion of coerced
testimony is part and parcel of the privilege against self-incrimination.
Likewise, when a search impermissible under the Fourth Amendment results in
the seizure of evidence, exclusion of the fruits of that unconstitutional invasion
is required not merely in hope of deterring unconstitutional searches in the
future, but in order to vindicate the right of privacy guaranteed by the Fourth
Amendment. See Boyd v. United States, supra; Weeks v. United States, 232
U.S. 383, 390394, 398, 34 S.Ct. 341, 343345, 346, 58 L.Ed. 652 (1914);
Mapp v. Ohio, 367 U.S. 643, 656, 660, 81 S.Ct. 1684, 1692, 1694, 6 L.Ed.2d
1081 (1961). Exclusion of evidence in order to vindicate the right of privacy,
however, does not improve the reliability of the factfinding process at trial. See
Desist v. United States, 394 U.S. 244, 249250, 89 S.Ct. 1030, 10331034,
22 L.Ed.2d 248 (1969), and cases cited. Accordingly, this factor does not
require that the standards of Chimel be retroactively applied. Desist v. United
States, supra; Stovall v. Denno, 388 U.S., at 297299, 87 S.Ct., at 1970
1971.

II
37

The factor of reliance by law-enforcement officials on Harris and Rabinowitz

points in the same direction. As we recognized in Chimel itself, Fourth
Amendment jurisprudence has often followed a tortuous path. 395 U.S., at 755
762, 89 S.Ct., at 20352039. So long as Harris and Rabinowitz were not
visibly overruled, we cannot be surprised that policemen and those who offer
them guidance may not have scrutinized their doctrinal underpinning for signs
of erosion. And the extent of reliance, it appears, has been considerable. The
Government represents, and petitioners do not seriously dispute, that a very
substantial number of searches have been carried out in reliance upon these
cases. In many of these, there is no reason to doubt that a warrant could and
would have been obtained if the officials involved had been aware that a
warrant would be required. This factor as well, therefore, implies that Chimel
should have only prospective application.

III
38

Finally, we must evaluate the probable impact of retroactive application on the

administration of justice. Persons convicted through the use of evidence
inadmissible under Chimel have been found to have engaged in conduct that the
government involved may legitimately punish. Chimel casts no doubt upon the
propriety of the government's interest in punishing those who have engaged in
such conduct. Accordingly, it may fairly be assumed that retroactive
application of its standards would result in a substantial number of retrials. Yet
Chimel likewise casts no doubt upon the reliability of the initial determination
of guilt at the previous trial. Moreover, the legitimate reliance of lawenforcement officials on Harris and Rabinowitz, as already noted, may well
have led them to conduct a warrantless search merely because the warrant
requirement, although easily satisfied, was understandably not understood. The
consequence of this is that retroactive application of the standards applied in
Chimel would impose a substantial burden upon the federal and state judicial
systems, while serving neither to redress knowing violations of individual
privacy nor to protect a class of persons the government has no legitimate
interest in punishing.

IV
39

This is not to say, however, that petitioners are to be denied relief because they
are probably guilty. '(T)here is always in litigation a margin of error,
representing error in factfinding.' Speiser v. Randall, 357 U.S. 513, 525, 78
S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). The constitutional requirement that

guilt in criminal cases be proved beyond a reasonable doubt serves to limit, but
cannot eliminate, the number of criminal defendants found guilty who are in
fact innocent. See In re Winship, 397 U.S. 358, 370372, 90 S.Ct. 1068, 1075
1076, 25 L.Ed.2d 368 (1970) (concurring opinion). In the present cases, both
petitioners asserted their innocence by pleading not guilty and going to trial; and
petitioner in No. 81, whose case is here on direct review, raised in his petition
for certiorari the question whether the evidence presented at trial was sufficient
to support a finding of guilt. But this Court does not sit to review such
questions. In denying retroactive application to the rule of Chimel, we neither
do nor could determine that every person convicted by the use of evidence
obtained contrary to that rule is in fact guilty of the crime of which he was
convicted. The question we face is not the legitimacy or sincerity of petitioners'
claims of innocence, or indeed whether any such claims are expressly made at
all. It is, instead, whether Chimel v. California compels us to conclude that the
invasion of petitioners' privacy, conducted in justifiable but mistaken reliance
upon the continuing validity of Harris and Rabinowitz, requires the exclusion
of the fruits of that invasion from the factfinding process at trial. I agree with
the Court that it does not, and that the standards of Chimel should apply only to
searches carried out after June 23, 1969.
40

Mr. Justice MARSHALL, concurring in part and dissenting in part.

41

After studying afresh the pattern of the Court's retroactivity decisions since
Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), I
conclude that a decision of this Court construing the Constitution should be
applied retroactively to all cases involving criminal convictions not yet final at
the time our decision is rendered. Sound jurisprudential reasoning, so well
articulated by Mr. Justice HARLAN in his separate opinion covering the
present cases, 401 U.S. 675, 91 S.Ct. 1171, 28 L.Ed.2d 410, in my view
requires that cases still on direct review should receive full benefit of our
supervening constitutional decisions. I am persuaded that willingness to tolerate
the inevitable costs and anomalies of the Court's current approach to
retroactivity is incompatible with the judicial duty of principaled review of
convictions not yet final.

42

I disagree somewhat with Mr. Justice HARLAN as to the proper approach to

retroactivity for cases arising on habeas corpus or other modes of collateral
attack. In such cases I believe it is best to employ the three-part analysis that
the plurality undertakes today in deciding the retroactivity of the rule in Chimel
v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This mode
of analysis was foreshadowed in Linkletter, where the question was whether
the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, should

be applied on collateral review. The method commends itself, once the point of
finality after direct review is passed, as a careful and appropriate way of
adjudicating the 'procedural' rights of litigants in view of the purposes of a new
decisional rule and the concerns of effective law enforcement. In particular, if
the purposes of a new rule implicate decisively the basic truth-determining
function of the criminal trial, then I believe the rule should be given full
retroactive application, for the required constitutional procedure itself would
then stand as a concrete embodiment of 'the concept of ordered liberty.' Palko v.
Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 151, 82 L.Ed. 288 (1937).
43

In light of the above, I concur in the Court's disposition of No. 82. That case is
before us on collateral review. For cases in such a posture the mode of analysis
used by the plurality is appropriate, and I agree that the Chimel rule should not
be applied retroactively to such cases.

44

No. 81 is before us on direct review. Since there is a clear violation of Chimel

on the facts, I would reverse the judgment below, for I believe that the same
constitutional rule should be applied to adjudicate the rights of the petitioner in
No. 81 as was applied in Chimel's case.

The Court of Appeals correctly rejected Williams' claim that his arrest was a
pretext to make an otherwise invalid search. Williams v. United States, 418
F.2d 159, 160161 (CA9 1969). In his petition for certiorari, Williams also
argued that there was insufficient proof of his knowledge of and control over
the heroin found in the incidental search of his home, and thus that the
Government had failed to prove constructive possession. This claim was neither
briefed nor argued by the parties, and we decline to disturb the judgment of the
Court of Appeals rejecting it. See 418 F.2d, at 162163.

Petitioner Williams was arrested pursuant to a warrant in the living room of his
residence shortly after midnight. Eight officers were involved, and the entire
house was searched for a period of about one hour and 45 minutes. The heroin
introduced at trial was found in a container on a closet shelf in one of the
bedrooms. Williams, supra, n. 1, at 161. The Government does not argue that
this search incident to arrest complies with Chimel.
Elkanich was arrested without a warrant in his apartment. He does not argue
that the arresting agents did not have probable cause to arrest but asserts that
the search violated the Fourth Amendment. Three agents came to petitioner's
apartment, and, after the door was opened by his wife in response to a knock,
entered and immediately arrested petitioner. After handcuffing Elkanich, the

agent in charge called for assistance. Three more agents arrived within 15
minutes, and they searched the four-room apartment for over an hour. The
supervising agent asked petitioner if he had any large sums of cash, guns, 'or
anything of that kind' in the apartment. Petitioner at first said not, but later
indicated there was some money in a broom closet. The agent found $500
above the molding at the top of the closet, returned to the living room, and
searched petitioner and his wife, finding $200 on each of them. Another agent
then found a second roll of bills above the molding in the broom closet, this one
totaling about $1,000. Two other items later introduced in evidence were seized
from a closet in the living room. Of the total of nearly $2,000 seized, $1,550
consisted of marked bills used by an undercover agent to purchase narcotics
from one Rios, whom petitioner was alleged to be supplying.
The Government here argues that exigent circumstances justify the search
without a warrant. The argument is that the presence of petitioner's wife in the
apartment left the agents only two choices: (1) to postpone searching until a
warrant could be secured, a course which would entail either some sort of
control over the wife's activity or a risk that evidence would disappear; or (2) to
search the apartment immediately, as they did.
Because of our resolution of the retroactivity question, we find it unnecessary to
pass on this contention.
3

Many of the cases are discussed in the majority and dissenting opinions in
Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).
These cases, and the general question of prospective effect for judicial
decisions, have generated a substantial amount of commentary. See generally
Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp
v. Ohio, 110 U.Pa.L.Rev. 650 (1962); Currier, Time and Change in JudgeMade Law; Prospective Overruling, 51 Va.L.Rev. 201 (1965); Levy, Realist
Jurisprudence and Prospective Overruling, 109 U.Pa.L.Rev. 1 (1960); Meador,
Habeas Corpus and the 'Retroactivity' Illusion, 50 Va.L.Rev. 1115 (1964);
Mishkin, The Supreme Court 1964 TermForeword: The High Court, the
Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56 (1965);
Schaefer, The Control of 'Sunbursts': Techniques of Prospective Overruling, 42
N.Y.U.L.Rev. 631 (1967); Schwartz, Retroactivity, Reliability, and Due
Process: A Reply to Professor Mishkin, 33 U.Chi.L.Rev. 719 (1966); Spruill,
The Effect of an Overruling Decision, 18 N.C.L.Rev. 199 (1940); Note,
Retroactivity of Criminal Procedure Decisions, 55 Iowa L.Rev. 1309 (1970);
Comment, Linkletter, Shott, and the Retroactivity Problem in Escobedo, 64
Mich.L.Rev. 832 (1966); Comment, Prospective Overruling and Retroactive
Application in the Federal Courts, 71 Yale L.J. 907 (1962). Cf. Kitch, The
Supreme Court's Code of Criminal Procedure: 19681969 Edition, 1969

Sup.Ct.Rev. 155, 183 200.

4

See 401 U.S. 675, 91 S.Ct. 1171, 28 L.Ed.2d 410 (HARLAN, J., concurring in
judgments and dissenting). Compare Mishkin, The Supreme Court 1964 Term
Foreword: The High Court, the Great Writ, and the Due Process of Time and
Law, 79 Harv.L.Rev. 56 (1965), with Schwartz, Retroactivity, Reliability, and
Due Process: A Reply to Professor Mishkin, 33 U.Chi.L.Rev. 719 (1966).
In rejecting the distinction between cases pending on direct review and those
on collateral attack, the Court in Johnson v. New Jersey, 384 U.S. 719, 732, 86
S.Ct. 1772, 1780, 16 L.Ed.2d 882 (1966), stated:
'Our holdings in Linkletter and Tehan (Tehan v. United States ex rel. Shott, 382
U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453) were necessarily limited to convictions
which had become final by the time Mapp and Griffin (Griffin v. State of
California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106) were rendered.
Decisions prior to Linkletter and Tehan had already established without
discussion that Mapp and Griffin applied to cases still on direct appeal at the
time they were announced.'

In our more recent opinions dealing with the retroactive sweep of our decisions
in the field of criminal procedure, the approach mandated by Linkletter has
come to be summarized in terms of a threefold analysis directed at discovering:
'(a) the purpose to be served by the new standards, (b) the extent of the reliance
by law enforcement authorities on the old standards, and (c) the effect on the
administration of justice of a retroactive application of the new standards.'
Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199
(1967); see also Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030,
1033, 22 L.Ed.2d 248 (1969).

See, e.g., Arsenault v. Com. of Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21

L.Ed.2d 5 (1968) (giving retroactive effect to the right to counsel provided in
White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963));
McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (giving
retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U.S.
128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)); Berger v. California, 393 U.S. 314,
89 S.Ct. 540, 21 L.Ed.2d 508 (1969) (giving retroactive effect to Barber v.
Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)); Roberts v. Russell,
392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) (giving retroactive effect
to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(1968)); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908
(1964); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811

(1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
7

The Fourth Amendment cases do not stand alone. We have reached similar
results in holding nonretroactive new interpretations of the Fifth Amendment's
privilege against compelled self-incrimination, although some ramifications of
the privilege have more connection with trustworthy results than does the
exclusionary rule designed to enforce the Fourth Amendment. See Tehan v.
United State ex rel. Shott, 382 U.S. 406, 414415, n. 12, 86 S.Ct. 459, 464, 15
L.Ed.2d 453 (1966); Johnson v. New Jersey, 384 U.S. 719, 730, 86 S.Ct. 1772,
1779, 16 L.Ed.2d 882 (1966); Desist v. United States, 394 U.S., at 249250,
n. 14, 89 S.Ct. at 10331034; cf. Mackey v. United States, 401 U.S. 667, at
674675, 91 S.Ct. 1160, at 11641165, 28 L.Ed.2d 404. So, too, the right to
jury trial secured by the Sixth Amendment 'generally tends to prevent
arbitrariness and repression,' DeStefano v. Woods, 392 U.S. 631, 633, 88 S.Ct.
2093, 2095, 20 L.Ed.2d 1308 (1968), and the holdings in United States v.
Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v.
California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), carry
implications for the reliability of identification testimony. But both Duncan v.
Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), obligating the
States to recognize the right to jury trial by virtue of the Fourteenth and Sixth
Amendments, and Wade and Gilbert were applied only prospectively in view of
the countervailing considerations that retroactivity would entail. DeStefano v.
Woods, supra; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967).
In both Johnson and Stovall, we frankly acknowledged that '(t)he extent to
which a condemned practice infects the integrity of the truth-determining
process at trial is a 'question of probabilities." 388 U.S., at 298, 87 S.Ct., at
1970. Where we have been unable to conclude that the use of such a
'condemned practice' in past criminal trials presents substantial likelihood that
the results of a number of those trials were factually incorrect, we have not
accorded retroactive effect to the decision condemning that practice. See e.g.,
DeStefano, 392 U.S., at 633 634, 88 S.Ct., at 2095 (quoting Duncan): "We
would not assert, however, that every criminal trialor any particular trial
held before a judge alone is unfair of that a defendant may never be as fairly
treated by a judge as he would be by a jury."
Our Brother HARLAN criticizes these decisions, stating that he finds
'inherently intractable the purported distinction between those new rules that
are designed to improve the factfinding process and those designed principally
to further other values.' Post, at 1181. Earlier, he suggests that 'those new rules
cognizable on habeas ought to be defined, not by the 'truth-determining' test, but
by the Palko (v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288

(1937)) test.' Post, at 1181. But operating within the confines of a rule that
seeks to determine, inter alia, whether a newly proscribed practice has probably
produced factually improper results in cases where it was employed is surely to
proceed with more definite bearings than are provided by a 'test' that seeks to
define those procedures which are 'implicit in the concept of ordered liberty.'
See n. 8, infra.
8

Compare Mr. Justice HARLAN'S treatment of petitioner Elkanich's case, post,

at 11831184, with his resolution of Mackey, post, at 1184. Cf. his discussion
of Gideon and its application to cases on collateral review. Post, at 1180
1181.

Let us assume that X and Y are accomplices in a murder and that they are tried
separately in the state courts. For any one of several reasons, including reversal
and retrial or consensual delay, X's case proceeds slowly through direct review
while Y's
conviction is quickly affirmed. Assume further that after X's conviction is
affirmed by the State's highest court, this Court holds that a practice employed
in both the X and Y trials violates the Constitution. Both X and Y come before
this Court at the same time seeking to have the new rule applied to their cases
X on direct review and Y by way of collateral attack. (Or, X and Y could be
petitioners tried for wholly different offenses in different States or in different
districts in the federal system. X, tried in a crowded jurisdiction and having
appellate review in a busy judicial system, would be before this Court on direct
review, while Y, whose case arose before less congested courts, would most
likely be here on collateral attack.)
Under Mr. Justice HARLAN'S approach, X automatically receives the benefit
of the new rulebecause we are a court of law somehow bound to decide all
cases here on direct review in accordance with the law as it exists when the
case arrives for consideration. Although we remain a court of law, Y may or
may not receive the benefit of the new rule, the result depending on whether
the new rule is designed to correct a practice that has come, over time, to shock
our Brother's conscience. Under our approach today, the results as to X and Y
would be consistent, as they should be.
As a perceptive jurist has remarked:
'(W)hen a court is itself changing the law by an overruling decision, its
determination of prospectivity or retroactivity should not depend upon the stage
in the judicial process that a particular case has reached when the change is
made. Too many irrelevant considerations including the common cold, bear
upon the rate of progress of a case through the judicial system.' Schaefer, supra,

n. 3, at 645.
10

Nor is the problem 'greatly ameliorated,' post, at 1181, by the approach

suggested by Mr. Justice HARLAN. For whenever our Brother HARLAN
considers a case on collateral review, he must of necessity determine which of
the prisoner's claims are grounded on 'new' rules in deciding what 'the law in
effect (was) when a conviction became final,' post, at 1180.

Our cases have settled the proposition that the Fourth Amendment requires
agents of the Government to obtain prior judicial approval of all searches and
seizures, see, e.g., Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 1398,
22 L.Ed.2d 676 (1969); Katz v. United States, 389 U.S. 347, 356357, 88
S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); James v. Louisiana, 382 U.S. 36, 86
S.Ct. 151, 15 L.Ed.2d 30 (1965); Preston v. United States, 376 U.S. 364, 368,
84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); McDonald v. United States, 335
U.S. 451, 455456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948) Agnello v. United
States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925), subject only to a
few narrow and well-delineated exceptions grounded upon urgent necessity.
Terry v. Ohio, 392 U.S. 1, 1627, 88 S.Ct. 1868, 18771883, 20 L.Ed.2d 889
(1968); see Katz v. United States, supra, 389 U.S., at 357 n. 19, 88 S.Ct., at 514
and cases cited; cf. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26
L.Ed.2d 419 (1970). And, in all events, '(t)he scope of (a) search must be
'strictly tied to and justified by' the circumstances which rendered its initiation
permissible.' Terry v. Ohio, supra, 392 U.S., at 19, 88 S.Ct., at 1878, quoting
Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651, 18 L.Ed.2d 782
(1967) (concurring opinion).

Long before Chimel, of course, we had made clear that Harris and Rabinowitz
were not themselves without limit. James v. Louisiana, 382 U.S. 36, 86 S.Ct.
151, 15 L.Ed.2d 30 (1965); Kremen v. United States, 353 U.S. 346, 77 S.Ct.
828, 1 L.Ed.2d 876 (1957); see Von Cleef v. New Jersey, 395 U.S. 814, 89
S.Ct. 2051, 23 L.Ed.2d 728 (1969); Stanley v. Georgia, 394 U.S. 557, 569
572, 89 S.Ct. 1243, 12501251, 22 L.Ed.2d 542 (1969) (Stewart, J.,
concurring in result).

Under what circumstances the Fifth Amendment requires that the individual
concerned be granted immunity from prosecution for the maters revealed in his
statements is a question not pertinent here. See Piccirillo v. New York, 400
U.S. 548, 561573, 91 S.Ct. 520, 527533, 27 L.Ed.2d 596 (1971) (Brennan,
J., dissenting).