U.S. Supreme Court Stone v. Powell, 428
U.S. 465 (1976) Stone v. Powell No. 74-1055 Argued February 24,
1976 Decided July 6, 1976 428
U.S. 465 ast|>* 428
U.S. 465 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus Respondent in No. 74-1055, was convicted of murder in state
court, in part on the basis of testimony concerning a revolver
found on his person when he was arrested for violating a vagrancy
ordinance. The trial court rejected respondent's contention that
the testimony should have been excluded because the ordinance was
unconstitutional and the arrest therefore invalid. The appellate
court affirmed, finding it unnecessary to pass upon the legality of
the arrest and search because of the court's conclusion that the
error, if any, in admitting the challenged testimony was harmless,
beyond a reasonable doubt. Respondent then applied for habeas
corpus relief in the Federal District Court, which concluded that
the arresting officer had probable cause, and that, even if the
vagrancy ordinance was unconstitutional, the deterrent purpose of
the exclusionary rule did not require that it be applied to bar
admission of the fruits of a search incident to an otherwise valid
arrest. The court held, alternatively, that any error in admission
of the challenged evidence was harmless. The Court of Appeals
reversed, concluding that the ordinance was unconstitutional; that
respondent's arrest was therefore illegal; and that, although
exclusion of the evidence would serve no deterrent purpose with
regard to officers who were enforcing statutes in good faith,
exclusion would deter legislators from enacting unconstitutional
statutes. The court also held that admission of the evidence was
not harmless error. In No. 74-1222, respondent was also convicted
of murder in a state court, in part on the basis of evidence seized
pursuant to a search warrant which respondent on a suppression
motion claimed was invalid. The trial court denied respondent's
motion to suppress, and was upheld on appeal. Respondent then filed
a habeas corpus petition in Federal District Court. The court
concluded that the warrant was invalid, and rejected the State's
contention that, in any event, probable cause justified the Page 428 U. S. 466 search. The Court of Appeals affirmed. Held: Where the State, as in each of these cases, has
provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas
corpus relief on the ground that evidence obtained through an
unconstitutional search and seizure was introduced at his trial. In
this context, the contribution of the exclusionary rule, if any, to
the effectuation of the Fourth Amendment is minimal as compared to
the substantial societal costs of applying the rule. Pp. 428 U. S.
474 -495.

															(a) Until these cases, this Court has had no occasion fully to
examine the validity of the assumption made in Kaufman v.
United States, 394 U. S. 217 ,
that the effectuation of the Fourth Amendment, as applied to the
States through the Fourteenth, requires the granting of habeas
corpus relief when a prisoner has been convicted in state court on
the basis of evidence obtained in an illegal search or seizure
since those Amendments were held in Mapp v. Ohio, 367 U. S. 643 , to
require exclusion of such evidence at trial and reversal of
conviction upon direct review. Pp. 428 U. S.
480 -481.

															(b) The Mapp majority justified application of the
exclusionary rule chiefly upon the belief that exclusion would
deter future unlawful police conduct, and though preserving the
integrity of the judicial process has been alluded to as also
justifying the rule, that concern is minimal where federal habeas
corpus relief is sought by a prisoner who has already been given
the opportunity for full and fair consideration of his search and
seizure claim at trial and on direct review. Pp. 428 U. S.
484 -486.

															(c) Despite the broad deterrent purpose of the exclusionary
rule, it has never been interpreted to proscribe the introduction
of illegally seized evidence in all proceedings or against all
persons; in various situations, the Court has found the policies
behind the rule outweighed by countervailing considerations. Pp. 428 U. S.
486 -489.

															(d) The ultimate question of guilt or innocence should be the
central concern in a criminal proceeding. Application of the
exclusionary rule, however, deflects the truthfinding process and
often frees the guilty. Though the rule is thought to deter
unlawful police activity, in part through nurturing respect for
Fourth Amendment values, indiscriminate application of the rule may
well generate disrespect for the law and the administration of
justice. Pp. 428 U. S.
489 -491.

															(e) Despite the absence of supportive empirical evidence, the
assumption has been that the exclusionary rule deters law
enforcement Page 428 U. S. 467 officers from violating the Fourth Amendment by removing the
incentives to disregard it. Though the Court adheres to that view
as applied to the trial and direct appeal stages, there is no
reason to believe that the effect of applying the rule would be
appreciably diminished if search and seizure claims could not be
raised in federal habeas corpus review of state convictions. Even
if some additional deterrent effect existed from application of the
rule in isolated habeas corpus cases, the furtherance of Fourth
Amendment goals would be outweighed by the detriment to the
criminal justice system. Pp. 428 U. S.
492 -494.

															No. 74-1055, 507 F.2d 93; No. 74-1222, 513 F.2d 1280,
reversed.

															POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined.
BURGER, C.J., filed a concurring opinion, post, p. 428 U. S. 496 .
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined, post, p. 428 U. S. 502 .
WHITE, J., filed a dissenting opinion, post, p. 428 U. S.
536 . Page 428 U. S. 468 MR. JUSTICE POWELL delivered the opinion of the Court.

															Respondents in these cases were convicted of criminal offenses
in state courts, and their convictions were affirmed on appeal. The
prosecution in each case relied upon evidence obtained by searches
and seizures alleged by respondents to have been unlawful. Each
respondent subsequently sought relief in a Federal District Court
by filing a petition for a writ of federal habeas corpus under Page 428 U. S. 469 28 U.S.C. § 2254. The question presented is whether a federal
court should consider, in ruling on a petition for habeas corpus
relief filed by a state prisoner, a claim that evidence obtained by
an unconstitutional search or seizure was introduced at his trial,
when he has previously been afforded an opportunity for full and
fair litigation of his claim in the state courts. The issue is of
considerable importance to the administration of criminal
justice. I We summarize first the relevant facts and procedural history of
these cases. A Respondent Lloyd Powell was convicted of murder in June, 1968,
after trial in a California state court. At about midnight on
February 17, 1968, he and three companions entered the Bonanza
Liquor Store in San Bernardino, Cal., where Powell became involved
in an altercation with Gerald Parsons, the store manager, over the
theft of a bottle of wine. In the scuffling that followed, Powell
shot and killed Parsons' wife. Ten hours later, an officer of the
Henderson, Nev., Police Department arrested Powell for violation of
the Henderson vagrancy ordinance, [ Footnote 1 ] and in the search incident to the arrest
discovered a .38-caliber revolver with six expended cartridges in
the cylinder.

															Powell was extradited to California and convicted of Page 428 U. S. 470 second-degree murder in the Superior Court of San Bernardino
County. Parsons and Powell's accomplices at the liquor store
testified against him. A criminologist testified that the revolver
found on Powell was the gun that killed Parsons' wife. The trial
court rejected Powell's contention that testimony by the Henderson
police officer as to the search and the discovery of the revolver
should have been excluded because the vagrancy ordinance was
unconstitutional. In October, 1969, the conviction was affirmed by
a California District Court of Appeal. Although the issue was duly
presented, that court found it unnecessary to pass upon the
legality of the arrest and search because it concluded that the
error, if any, in admitting the testimony of the Henderson officer
was harmless beyond a reasonable doubt under Chapman v.
California, 386 U. S. 18 (1967). The Supreme Court of California denied Powell's petition
for habeas corpus relief.

															In August, 1971, Powell filed an amended petition for a writ of
federal habeas corpus under 28 U.S.C. § 2254 in the United States
District Court for the Northern District of California, contending
that the testimony concerning the .38-caliber revolver should have
been excluded as the fruit of an illegal search. He argued that his
arrest had been unlawful because the Henderson vagrancy ordinance
was unconstitutionally vague and that the arresting officer lacked
probable cause to believe that he was violating it. The District
Court concluded that the arresting officer had probable cause, and
held that, even if the vagrancy ordinance was unconstitutional, the
deterrent purpose of the exclusionary rule does not require that it
be applied to bar admission of the fruits of a search incident to
an otherwise valid arrest. In the alternative, that court agreed
with the California District Court of Appeal that the admission of
the evidence concerning Page 428 U. S. 471 Powell's arrest, if error, was harmless beyond a reasonable
doubt.

															In December, 1974, the Court of Appeals for the Ninth Circuit
reversed. 507 F.2d 93. The court concluded that the vagrancy
ordinance was unconstitutionally vague, [ Footnote 2 ] that Powell's arrest was therefore illegal,
and that, although exclusion of the evidence would serve no
deterrent purpose with regard to police officers who were enforcing
statutes in good faith, exclusion would serve the public interest
by deterring legislators from enacting unconstitutional statutes. Id. at 98. After an independent review of the evidence,
the court concluded that the admission of the evidence was not
harmless error, since it supported the testimony of Parsons and
Powell's accomplices. Id. at 99. B Respondent David Rice was convicted of murder in April, 1971,
after trial in a Nebraska state court. At 2:05 a.m. on August 17,
1970, Omaha police received a telephone call that a woman had been
heard screaming at 2867 Ohio Street. As one of the officers sent to
that address examined a suitcase lying in the doorway, it exploded,
killing him instantly. By August, 22 the investigation of the
murder centered on Duane Peak, a 15-year-old member of the National
Committee to Combat Page 428 U. S. 472 Fascism (NCCF), and that afternoon, a warrant was issued for
Peak's arrest. The investigation also focused on other known
members of the NCCF, including Rice, some of whom were believed to
be planning to kill Peak before he could incriminate them. In their
search for Peak, the police went to Rice's home at 10:30 that night
and found lights and a television on, but there was no response to
their repeated knocking. While some officers remained to watch the
premises, a warrant was obtained to search for explosives and
illegal weapons believed to be in Rice's possession. Peak was not
in the house, but, upon entering, the police discovered, in plain
view, dynamite, blasting caps and other materials useful in the
construction of explosive devices. Peak subsequently was arrested,
and, on August 27, Rice voluntarily surrendered. The clothes Rice
was wearing at that time were subjected to chemical analysis,
disclosing dynamite particles.

															Rice was tried for first-degree murder in the District Court of
Douglas County. At trial, Peak admitted planting the suitcase and
making the telephone call, and implicated Rice in the bombing plot.
As corroborative evidence the State introduced items seized during
the search, as well as the results of the chemical analysis of
Rice's clothing. The court denied Rice's motion to suppress this
evidence. On appeal, the Supreme Court of Nebraska affirmed the
conviction, holding that the search of Rice's home had been
pursuant to a valid search warrant. State v. Rice, 188
Neb. 728, 199 N.W.2d
480 (1972).

															In September, 1972, Rice filed a petition for a writ of habeas
corpus in the United States District Court for Nebraska. Rice's
sole contention was that his incarceration was unlawful because the
evidence underlying his conviction had been discovered as the
result of an illegal Page 428 U. S. 473 search of his home. The District Court concluded that the search
warrant was invalid, as the supporting affidavit was defective
under Spinelli v. United States, 393 U.
S. 410 (1969), and Aguilar v. Texas, 378 U. S. 108 (1964). 388 F.
Supp. 185 , 19194 (1974). [ Footnote 3 ] The court also rejected the State's contention
that, even if the warrant was invalid, the search was justified
because of the valid arrest warrant for Peak and because of the
exigent circumstances of the situation -- danger to Peak and search
for bombs and explosives believed in possession of the NCCF. The
court reasoned that the arrest warrant did not justify the entry,
as the police lacked probable cause to believe Peak was in the
house, and further concluded tat the circumstances were not
sufficiently exigent to justify an immediate warrantless Page 428 U. S. 474 search. Id. at 194-202. [ Footnote 4 ] The Court of Appeals for the Eighth Circuit
affirmed, substantially for the reasons stated by the District
Court. 513 F.2d 1280 (1975).

															Petitioners Stone and Wolff, the wardens of the respective state
prisons where Powell and Rice are incarcerated, petitioned for
review of these decisions, raising questions concerning the scope
of federal habeas corpus and the role of the exclusionary rule upon
collateral review of cases involving Fourth Amendment claims. We
granted their petitions for certiorari. 4 22 U.S. 1055 (1975).
[ Footnote 5 ] We now
reverse. II The authority of federal courts to issue the writ of habeas
corpus ad subjiciendum [ Footnote 6 ] was included in the first Page 428 U. S. 475 grant of federal court jurisdiction, made by the Judiciary Act
of 1789, c. 20, § 14, 1 Stat. 81, with the limitation that the writ
extend only to prisoners held in custody by the United States. The
original statutory authorization did not define the substantive
reach of the writ. It merely stated that the courts of the United
States "shall have power to issue writs of . . . habeas corpus. . .
." Ibid. The courts defined the scope of the writ in
accordance with the common law, and limited it to an inquiry as to
the jurisdiction of the sentencing tribunal. See, e.g., 28 U. S. 3
Pet. 193 (1830) (Marshall, C.J.).

															In 1867, the writ was extended to state prisoners. Act of Feb.
5, 1867, c. 28, § 1, 14 Stat. 385. Under the 1867 Act, federal
courts were authorized to give relief in

															"all cases where any person may be restrained of his or her
liberty in violation of the constitution, or of any treaty or law
of the United States. . . ."

															But the limitation of federal habeas corpus jurisdiction to
consideration of the jurisdiction of the sentencing court
persisted. See, e.g., In re Wood, 140 U.
S. 278 (1891); In re Rahrer, 140 U.
S. 545 (1891); Andrews v. Swartz, 156 U.
S. 272 (1895); Bergemann v. Backer, 157 U. S. 655 (1895); Pettibone v. Nichols, 203 U.
S. 192 (1906). And, although the concept of
"jurisdiction" was subjected to considerable strain as the
substantive scope of the writ was expanded, [ Footnote 7 ] this Page 428 U. S. 476 expansion was limited to only a few classes of cases [ Footnote 8 ] until Frank v.
Mangum, 237 U. S. 309 , in
1915. In Frank, the prisoner had claimed in the state
courts that the proceedings which resulted in his conviction for
murder had been dominated by a mob. After the State Supreme Court
rejected his contentions, Frank unsuccessfully sought habeas corpus
relief in the Federal District Court. This Court affirmed the
denial of relief because Frank's federal claims had been considered
by a competent and unbiased state tribunal. The Court recognized,
however, that, if a habeas corpus court found that the State had
failed to provide adequate "corrective process" for the full and
fair litigation of federal claims, whether or not "jurisdictional,"
the court could inquire into the merits to determine whether a
detention was lawful. Id. at 237 U. S.
333 -336.

															In the landmark decision in Brown v. Allen, 344 U. S. 443 , 344 U. S.
482 -487 (1953), the scope of the writ was expanded still
further. [ Footnote 9 ] In that
case and its companion case, Daniels v. Allen, state
prisoners applied for federal habeas corpus relief, claiming that
the trial courts had erred Page 428 U. S. 477 in failing to quash their indictments due to alleged
discrimination in the selection of grand jurors and in ruling
certain confessions admissible. In Brown, the highest
court of the State had rejected these claims on direct appeal, State v. Brown, 233 N.C. 202, 63
S.E.2d 99 , and this Court had denied certiorari, 341 U.S. 943
(1951). Despite the apparent adequacy of the state corrective
process, the Court reviewed the denial of the writ of habeas corpus
and held that Brown was entitled to a full reconsideration of these
constitutional claims, including, if appropriate, a hearing in the
Federal District Court. In Daniels, however, the State
Supreme Court, on direct review, had refused to consider the appeal
because the papers were filed out of time. This Court held that,
since the state court judgment rested on a reasonable application
of the State's legitimate procedural rules, a ground that would
have barred direct review of his federal claims by this Court, the
District Court lacked authority to grant habeas corpus relief. See 344 U.S. at 344 U. S. 458 ,
486.

															This final barrier to broad collateral reexamination of state
criminal convictions in federal habeas corpus proceedings was
removed in Fay v. Noia, 372 U. S. 391 (1963). [ Footnote 10 ] Noia
and two codefendants had been convicted Page 428 U. S. 478 of felony murder. The sole evidence against each defendant was a
signed confession. Noia's codefendants, but not Noia himself,
appealed their convictions. Although their appeals were
unsuccessful, in subsequent state proceedings, they were able to
establish that their confessions had been coerced, and their
convictions therefore procured in violation of the Constitution. In
a subsequent federal habeas corpus proceeding, it was stipulated
that Noia's confession also had been coerced, but the District
Court followed Daniels in holding that Noia's failure to
appeal barred habeas corpus review. See United States v.
Fay, 183 F.
Supp. 222 , 225 (SDNY 1960). The Court of Appeals reversed,
ordering that Noia's conviction be set aside and that he be
released from custody or that a new trial be granted. This Court
affirmed the grant of the writ, narrowly restricting the
circumstances in which a federal court may refuse to consider the
merits of federal constitutional claims. [ Footnote 11 ]

															During the period in which the substantive scope of the writ was
expanded, the Court did not consider whether exceptions to full
review might exist with respect Page 428 U. S. 479 to particular categories of constitutional claims. Prior to the
Court's decision in Kaufman v. United States, 394 U.
S. 217 (1969), however, a substantial majority of the
Federal Courts of Appeals had concluded that collateral review of
search and seizure claims was inappropriate on motions filed by
federal prisoners under 28 U.S.C. § 2255, the modern
post-conviction procedure available to federal prisoners in lieu of
habeas corpus. [ Footnote 12 ]
The primary rationale advanced in support of those decisions was
that Fourth Amendment violations are different in kind from denials
of Fifth or Sixth Amendment rights, in that claims of illegal
search and seizure do not

															"impugn the integrity of the factfinding process or challenge
evidence as inherently unreliable; rather, the exclusion of
illegally seized evidence is simply a prophylactic device intended
generally to deter Fourth Amendment violations by law enforcement
officers."

															394 U.S. at 394 U. S. 224 . See Thornton v. United States, 125 U.S.App.D.C. 114, 368
F.2d 822 (1966). Kaufman rejected this rationale and held that search
and seizure claims are cognizable in § 2255 proceedings. The Court
noted that "the federal habeas remedy extends to state prisoners
alleging that unconstitutionally obtained evidence was admitted
against them at trial," 394 U.S. at 394 U. S. 225 ,
citing, e.g., 392 U. S. DeForte, 392 Page 428 U. S. 480 U.S. 364 (1968); Carafas v. LaVallee, 391 U.
S. 234 (1968), and concluded, as a matter of statutory
construction, that there was no basis for restricting

															"access by federal prisoners with illegal search and seizure
claims to federal collateral remedies, while placing no similar
restriction on access by state prisoners,"

															394 U.S. at 394 U. S. 226 .
Although, in recent years, the view has been expressed that the
Court should reexamine the substantive scope of federal habeas
jurisdiction and limit collateral review of search and seizure
claims

															"solely to the question of whether the petitioner was provided a
fair opportunity to raise and have adjudicated the question in
state courts," Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 250 (1973) (POWELL, J., concurring), [ Footnote 13 ] the Court, without discussion or
consideration of the issue, has continued to accept jurisdiction in
cases raising such claims. See Lefkowitz v. Newsome, 420 U. S. 283 (1975); Cady v. Dombrowski, 413 U.
S. 433 (1973); Cardwell v. Lewis, 417 U.
S. 583 (1974) (plurality opinion). [ Footnote 14 ]

															The discussion in Kaufman of the scope of federal
habeas corpus rests on the view that the effectuation of the Fourth
Amendment, as applied to the States through the Fourteenth
Amendment, requires the granting of habeas corpus relief when a
prisoner has been convicted Page 428 U. S. 481 in state court on the basis of evidence obtained in an illegal
search or seizure, since those Amendments were held in Mapp v.
Ohio, 367 U. S. 643 (1961), to require exclusion of such evidence at trial and reversal
of conviction upon direct review. [ Footnote 15 ] Until these cases, we have not had occasion
fully to consider the validity of this view. See, e.g.,
Schneckloth v. Bustamonte, supra at 412 U. S. 249 n. 3; Cardwell v. Lewis, supra at 417 U. S. 596 ,
and n. 12. Upon examination, we conclude, in light of the nature
and purpose of the Fourth Amendment exclusionary rule, that this
view is unjustified. [ Footnote
16 ] We hold, therefore, that Page 428 U. S. 482 where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the Constitution does not
require that a state prisoner be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial. [ Footnote 17 ] III The Fourth Amendment assures the "right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." The Amendment was primarily a
reaction to the evils associated with the use of the general
warrant in England and the writs of assistance in the Colonies, Stanford v. Texas, 379 U. S. 476 , 379 U. S.
481 -485 (1965); Frank v. Maryland, 359 U.
S. 360 , 359 U. S.
363 -365 (1959), and was intended to protect the
"sanctity of a man's home and the privacies of life," Boyd v.
United States, 116 U. S. 616 , 116 U. S. 630 (1886), from searches under unchecked general authority. [ Footnote 18 ]

															The exclusionary rule was a judicially created means of
effectuating the rights secured by the Fourth Amendment. Prior to
the Court's decisions in Weeks v. United States, 232 U. S. 383 (1914), and Gouled v. United States, 255 U.
S. 298 (1921), there existed no barrier to the
introduction in criminal trials of evidence obtained in violation
of the Amendment. See Adams v. New
York , Page 428 U. S. 483 192 U. S. 585 (1904). [ Footnote 19 ] In Weeks, the Court held that the defendant could petition
before trial for the return of property secured through an illegal
search or seizure conducted by federal authorities. In Gouled, the Court held broadly that such evidence could
not be introduced in a federal prosecution. See Warden v.
Hayden, 387 U. S. 294 , 387 U. S.
304 -305 (1967). See also Silverthorne Lumber Co. v.
United States, 251 U. S. 385 (1920) (fruits of illegally seized evidence). Thirty-five years
after Weeks, the Court held in Wolf v. Colorado, 338 U. S. 25 (1949), that the right to be free from arbitrary intrusion by the
police that is protected by the Fourth Amendment is

															"implicit in 'the concept of ordered liberty,' and, as such,
enforceable against the States through the [Fourteenth Amendment]
Due Process Clause." Id. at 338 U. S. 27 -28.
The Court concluded, however, that the Weeks exclusionary
rule would not be imposed upon the States as "an essential
ingredient of [that] right." 338 U.S. at 338 U. S. 29 .
The full force of Wolf was eroded in subsequent decisions, see Elkins v. United States, 364 U.
S. 206 (1960); Rea v. United States, 350 U. S. 214 (1956), and, a little more than a decade later, the exclusionary
rule was held applicable to the States in Mapp v. Ohio, 367 U. S. 643 (1961). Page 428 U. S. 484 Decisions prior to Mapp advanced two principal reasons
for application of the rule in federal trials. The Court in Elkins, for example, in the context of its special
supervisory role over the lower federal courts, referred to the
"imperative of judicial integrity," suggesting that exclusion of
illegally seized evidence prevents contamination of the judicial
process. 364 U.S. at 364 U. S. 222 .
[ Footnote 20 ] But even in
that context, a more pragmatic ground was emphasized:

															"The rule is calculated to prevent, not to repair. Its purpose
is to deter -- to compel respect for the constitutional guaranty in
the only effectively available way -- by removing the incentive to
disregard it." Id. at 364 U. S. 217 .
The Mapp majority justified the application of the rule to
the States on several grounds, [ Footnote 21 ] but relied principally upon the belief that
exclusion would deter future unlawful police conduct. 367 U.S. at 367 U. S.
658 . Page 428 U. S. 485 Although our decisions often have alluded to the "imperative of
judicial integrity," e.g., United States v. Peltier, 422 U. S. 531 , 422 U. S.
536 -539 (1975), they demonstrate the limited role of
this justification in the determination whether to apply the rule
in a particular context. [ Footnote 22 ] Logically extended, this justification would
require that courts exclude unconstitutionally seized evidence
despite lack of objection by the defendant, or even over his
assent. Cf. Henry v. Mississippi, 379 U.
S. 443 (1965). It also would require abandonment of the
standing limitations on who may object to the introduction of
unconstitutionally seized evidence, Alderman v. United
States, 394 U. S. 165 (1969), and retreat from the proposition that judicial proceedings
need not abate when the defendant's person is unconstitutionally
seized, Gerstein v. Pugh, 420 U.
S. 103 , 420 U. S. 119 (1975); Frisbie v. Collins, 342 U.
S. 519 (1952). Similarly, the interest in promoting
judicial integrity does not prevent the use of illegally seized
evidence in grand jury proceedings. United States v.
Calandra, 414 U. S. 338 (1974). Nor does it require that the trial court exclude such
evidence from use for impeachment of a defendant, even though its
introduction is certain to result in conviction in some cases. Walder v. United States, 347 U. S. 62 (1954). The teaching of these cases is clear. While courts, of
course, must ever be concerned with preserving the integrity of the
judicial process, this concern has limited force as a justification
for the exclusion of highly probative evidence. [ Footnote 23 ] Page 428 U. S. 486 The force of this justification becomes minimal where federal
habeas corpus relief is sought by a prisoner who previously has
been afforded the opportunity for full and fair consideration of
his search and seizure claim at trial and on direct review.

															The primary justification for the exclusionary rule then is the
deterrence of police conduct that violates Fourth Amendment rights.
Post- Mapp decisions have established that the rule is not
a personal constitutional right. It is not calculated to redress
the injury to the privacy of the victim of the search or seizure,
for any "[r]eparation comes too late." Linkletter v.
Walker, 381 U. S. 618 , 381 U. S. 637 (196). Instead,

															"the rule is a judicially created remedy designed to safeguard
Fourth Amendment rights generally through its deterrent effect. . .
." United States v. Calandra, supra at 414 U. S. 348 . Accord, United States v. Peltier, supra at 422 U. S.
538 -539; Terry v. Ohio, 392 U. S.
1 , 392 U. S. 28 -29
(1968); Linkletter v. Walker, supra at 381 U. S.
636 -637; Tehan v. United States ex rel. Shott, 382 U. S. 406 , 382 U. S. 416 (1966). Mapp involved the enforcement of the exclusionary rule
at state trials and on direct review. The decision in Kaufman, as noted above, is premised on the view that
implementation of the Fourth Amendment also requires the
consideration of search and seizure claims upon collateral review
of state convictions. But despite the broad deterrent purpose of
the exclusionary rule, it has never been interpreted to proscribe
the introduction of illegally seized evidence in all proceedings or
against all persons. As in the case of any remedial device, "the
application of the rule has been restricted to those areas where
its remedial Page 428 U. S. 487 objectives are thought most efficaciously served." United
States v. Calandra, supra at 414 U. S. 348 .
[ Footnote 24 ] Thus, our
refusal to extend the exclusionary rule to grand jury proceedings
was based on a balancing of the potential injury to the historic
role and function of the grand jury by such extension against the
potential contribution to the effectuation of the Fourth Amendment
through deterrence of police misconduct:

															"Any incremental deterrent effect which might be achieved by
extending the rule to grand jury proceedings is uncertain, at best.
Whatever deterrence of police misconduct may result from the
exclusion of illegally seized evidence from criminal trials, it is
unrealistic to assume that application of the rule to grand jury
proceedings would significantly further that goal. Such an
extension would deter only police investigation consciously
directed toward the discovery of evidence solely for use in a grand
jury investigation. . . . We therefore decline to embrace a view
that would achieve a speculative and undoubtedly minimal advance in
the deterrence of police misconduct at the expense of
substantially Page 428 U. S. 488 impeding the role of the grand jury."

															414 U.S. at 414 U. S.
351 -352 (footnote omitted).

															The same pragmatic analysis of the exclusionary rule's
usefulness in a particular context was evident earlier in Walder v. United States, supra, where the Court permitted
the Government to use unlawfully seized evidence to impeach the
credibility of a defendant who had testified broadly in his own
defense. The Court held, in effect, that the interests safeguarded
by the exclusionary rule in that context were outweighed by the
need to prevent perjury and to assure the integrity of the trial
process. The judgment in Walder revealed most clearly that
the policies behind the exclusionary rule are not absolute. Rather,
they must be evaluated in light of competing policies. In that
case, the public interest in determination of truth at trial
[ Footnote 25 ] was deemed to
outweigh the incremental contribution that might have been made to
the protection of Fourth Amendment values by application of the
rule.

															The balancing process at work in these cases also finds
expression in the standing requirement. Standing to invoke the
exclusionary rule has been found to exist only when the Government
attempts to use illegally obtained evidence to incriminate the
victim of the illegal search. Brown v. United States, 411 U. S. 223 (1973); Alderman v. United States, 394 U.
S. 165 (1969); Wong Sun v. United States, 371 U. S. 471 , 371 U. S.
491 -492 (1963). See Jones v. United States, 362 U. S. 257 , 362 U. S. 261 (1960). The standing requirement is premised on the view that the
"additional benefits of extending the . . . rule" to defendants
other than the victim of the search or seizure are outweighed by
the

															"further encroachment upon the Page 428 U. S. 489 public interest in prosecuting those accused of crime and having
them acquitted or convicted on the basis of all the evidence which
exposes the truth." Alderman v. United States, supra at 394 U. S.
174 -175. [ Footnote
26 ] IV We turn now to the specific question presented by these cases.
Respondents allege violations of Fourth Amendment rights guaranteed
them through the Fourteenth Amendment. The question is whether
state prisoners -- who have been afforded the opportunity for full
and fair consideration of their reliance upon the exclusionary rule
with respect to seized evidence by the state courts at trial and on
direct review -- may invoke their claim again on federal habeas
corpus review. The answer is to be found by weighing the utility of
the exclusionary rule against the costs of extending it to
collateral review of Fourth Amendment claims.

															The costs of applying the exclusionary rule even at trial and on
direct review are well known: [ Footnote 27 ] the focus Page 428 U. S. 490 of the trial, and the attention of the participants therein, are
diverted from the ultimate question of guilt or innocence that
should be the central concern in a criminal proceeding. [ Footnote 28 ] Moreover, the physical
evidence sought to be excluded is typically reliable and often the
most probative information bearing on the guilt or innocence of the
defendant. As Mr. Justice Black emphasized in his dissent in Kaufman: "A claim of illegal search and seizure under the Fourth
Amendment is crucially different from many other constitutional
rights; ordinarily, the evidence seized can in no way have been
rendered untrustworthy by the means of its seizure, and indeed
often this evidence alone establishes beyond virtually any shadow
of a doubt that the defendant is guilty."

															394 U.S. at 394 U. S. 237 .
Application of the rule thus deflects the truthfinding process, and
often frees the guilty. The disparity in particular cases between
the error committed by the police officer and the windfall afforded
a guilty defendant by application of the rule is contrary to the
idea of proportionality that is essential to the concept of
justice. [ Footnote 29 ]
Thus, Page 428 U. S. 491 although the rule is thought to deter unlawful police activity
in part through the nurturing of respect for Fourth Amendment
values, if applied indiscriminately, it may well have the opposite
effect of generating disrespect for the law and administration of
justice. [ Footnote 30 ] These
long-recognized costs of the rule persist when a criminal
conviction is sought to be overturned on collateral review on the
ground that a search and seizure claim was erroneously rejected by
two or more tiers of state courts. [ Footnote 31 ] Page 428 U. S. 492 Evidence obtained by police officers in violation of the Fourth
Amendment is excluded at trial in the hope that the frequency of
future violations will decrease. Despite the absence of supportive
empirical evidence, [ Footnote
32 ] we have assumed that the immediate effect of exclusion will
be to discourage law enforcement officials from violating the
Fourth Amendment by removing the incentive to disregard it. More
importantly, over the long-term, this demonstration that our
society attaches serious consequences to violation of
constitutional rights is thought to encourage those who formulate
law enforcement policies, and the officers who implement them, to
incorporate Fourth Amendment ideals into their value system.
[ Footnote 33 ] Page 428 U. S. 493 We adhere to the view that these considerations support the
implementation of the exclusionary rule at trial and its
enforcement on direct appeal of state court convictions. But the
additional contribution, if any, of the consideration of search and
seizure claims of state prisoners on collateral review is small in
relation to the costs. To be sure, each case in which such claim is
considered may add marginally to an awareness of the values
protected by the Fourth Amendment. There is no reason to believe,
however, that the overall educative effect of the exclusionary rule
would be appreciably diminished if search and seizure claims could
not be raised in federal habeas corpus review of state convictions.
[ Footnote 34 ] Nor is there
reason to assume that any specific disincentive already created by
the risk of exclusion of evidence at trial or the reversal of
convictions on direct review would be enhanced if there were the
further risk that a conviction obtained in state court and affirmed
on direct review might be overturned in collateral proceedings
often occurring years after the incarceration of the defendant. The
view that the deterrence of Fourth Amendment violations would be
furthered rests on the dubious assumption that law enforcement
authorities would fear that federal habeas review might reveal
flaws in a search or seizure that went undetected at trial and on
appeal. [ Footnote 35 ] Even
if one rationally could assume that Page 428 U. S. 494 some additional incremental deterrent effect would be present in
isolated cases, the resulting advance of the legitimate goal of
furthering Fourth Amendment rights would be outweighed by the
acknowledged costs to other values vital to a rational system of
criminal justice.

															In sum, we conclude that, where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment
claim, [ Footnote 36 ] a state
prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial. [ Footnote 37 ] In this context, the Page 428 U. S. 495 contribution of the exclusionary rule, if any, to the
effectuation of the Fourth Amendment is minimal, and the
substantial societal costs of application of the rule persist with
special force. [ Footnote
38 ] Page 428 U. S. 496 Accordingly, the judgments of the Courts of Appeals are Reversed. * Together with No. 74-1222, Wolff, Warden v. Rice, on
certiorari to the United States Court of Appeals for the Eighth
Circuit.

															[ Footnote 1 ]

															The ordinance provides:

															"Every person is a vagrant who:"

															"[1] Loiters or wanders upon the streets or from place to place
without apparent reason or business and [2] who refuses to identify
himself and to account for his presence when asked by a police
officer to do so [3] if surrounding circumstances are such as to
indicate to a reasonable man that the public safety demands such
identification."

															[ Footnote 2 ]

															In support of the vagueness holding, the court relied
principally on Papachristou v. Jacksonville, 405 U.
S. 156 (1972), where we invalidated a city ordinance in
part defining vagrants as "persons wandering or strolling around
from place to place without any lawful purpose or object. . . ." Id. at 405 U. S. 156 -157,
n. 1. Noting the similarity between the first element of the
Henderson ordinance, see n 1, supra, and the Jacksonville ordinance, it
concluded that the second and third elements of the Henderson
ordinance were not sufficiently specific to cure its overall
vagueness. 507 F.2d at 95-97. Petitioner Stone challenges these
conclusions, but, in view of our disposition of the case, we need
not consider this issue.

															[ Footnote 3 ]

															The sole evidence presented to the magistrate was the affidavit
in support of the warrant application. It indicated that the police
believed explosives and illegal weapons were present in Rice's home
because (1) Rice was an official of the NCCF, (2) a violent killing
of an officer had occurred and it appeared that the NCCF was
involved, and (3) police had received information in the past that
Rice possessed weapons and explosives, which he had said should be
used against the police. See 388 F. Supp. at 189 n. 1. In
concluding that there existed probable cause for issuance of the
warrant, although the Nebraska Supreme Court found the affidavit
alone sufficient, it also referred to information contained in
testimony adduced at the suppression hearing but not included in
the affidavit. 188 Neb. 728, 738-739, 199 N.W.2d
480 , 487-488. See also id. at 754, 199 N.W.2d at 495
(concurring opinion). The District Court limited its probable cause
inquiry to the face of the affidavit, see Spinelli v. United
States, 393 U.S. at 393 U. S. 413 n. 3; Aguilar v. Texas, 378 U.S. at 378 U. S. 109 n. 1, and concluded probable cause was lacking. Petitioner Wolff
contends that police should be permitted to supplement the
information contained in an affidavit for a search warrant at the
hearing on a motion to suppress, a contention that we have several
times rejected, see, e.g., Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 565 n. 8 (1971); Aguilar v. Texas, supra at 378 U. S. 109 n. 1, and need not reach again here.

															[ Footnote 4 ]

															The District Court further held that the evidence of dynamite
particles found on Rice's clothing should have been suppressed as
the tainted fruit of an arrest warrant that would not have been
issued but for the unlawful search of his home. 388 F. Supp. at
202-207. See Wong Sun v. United States, 371 U.
S. 471 (1963); Silverthorne Lumber Co. v. United
States, 251 U. S. 385 (1920).

															[ Footnote 5 ]

															In the orders granting certiorari in these cases, we requested
that counsel in Stone v. Powell and Wolff v.
Rice, respectively, address the questions:

															"Whether, in light of the fact that the District Court found
that the Henderson, Nev., police officer had probable cause to
arrest respondent for violation of an ordinance which at the time
of the arrest had not been authoritatively determined to be
unconstitutional, respondent's claim that the gun discovered as a
result of a search incident to that arrest violated his rights
under the Fourth and Fourteenth Amendments to the United States
Constitution is one cognizable under 28 U.S.C. § 2254."

															"Whether the constitutional validity of the entry and search of
respondent's premises by Omaha police officers under the
circumstances of this case is a question properly cognizable under
28 U.S.C. § 2254."

															[ Footnote 6 ]

															It is now well established that the phrase "habeas corpus," used
alone, refers to the common law writ of habeas corpus ad
subjiciendum, known as the "Great Writ." Ex parte
Bollman , 4 Cranch 75, 8 U. S. 95 (1807)
(Marshall, C.J.).

															[ Footnote 7 ]

															Prior to 1889, there was, in practical effect, no appellate
review in federal criminal cases. The possibility of Supreme Court
review on certificate of division of opinion in the circuit court
was remote because of the practice of single district judges'
holding circuit court. See P. Bator, P. Mishkin, D.
Shapiro, & H. Wechsler, Hart & Wechsler's The Federal
Courts and the Federal System 1539-1540 (2d ed.1973); F.
Frankfurter & J. Landis, The Business of the Supreme Court
31-32, 79-80, and n. 107 (1927). Pressure naturally developed for
expansion of the scope of habeas corpus to reach otherwise
unreviewable decisions involving fundamental rights. See Ex
parte Siebold, 100 U. S. 371 , 100 U. S.
376 -377 (1880); Bator, Finality in Criminal Law and
Federal Habeas Corpus For State Prisoners, 76 Harv.L.Rev. 441, 473,
and n. 75 (1963).

															[ Footnote 8 ]

															The expansion occurred primarily with regard to (i) convictions
based on assertedly unconstitutional statutes, e.g., Ex parte
Siebold, supra, or (ii) detentions based upon an allegedly
illegal sentence, e.g., 85 U. S. 18
Wall. 163 (1874). See Bator, supra, n 7, at 465-474.

															[ Footnote 9 ]

															There has been disagreement among scholars as to whether the
result in Brown v. Allen was foreshadowed by the Court's
decision in Moore v. Dempsey, 261 U. S.
86 (1923). Compare Hart, Foreword: The Time
Chart of the Justices, 73 Harv.L.Rev. 84, 105 (1959); Reitz,
Federal Habeas Corpus; Impact of an Abortive State Proceeding, 74
Harv.L.Rev. 1315, 1328-1329 (1961), with Bator, supra, n 7, at
488-491. See also Fay v. Noia, 372 U.
S. 391 , 372 U. S. 421 ,
and n. 30 (1963); id. at 372 U. S.
457 -460 (Harlan, J., dissenting).

															[ Footnote 10 ]

															Despite the expansion of the scope of the writ, there has been
no change in the established rule with respect to nonconstitutional
claims. The writ of habeas corpus and its federal counterpart, 28
U.S.C. § 2255, "will not be allowed to do service for an appeal." Sunal v. Large, 332 U. S. 174 , 332 U. S. 178 (1947). For this reason, nonconstitutional claims that could have
been raised on appeal, but were not, may not be asserted in
collateral proceedings. Id. at 332 U. S.
178 -179; Davis v. United States, 417 U.
S. 333 , 417 U. S.
345 -346, and n. 15 (1974). Even those nonconstitutional
claims that could not have been asserted on direct appeal can be
raised on collateral review only if the alleged error constituted
" a fundamental defect which inherently results in a complete
miscarriage of justice,'" id. at 417 U. S. 346 ,
quoting Hill v. United States, 368 U.
S. 424 , 368 U. S. 428 (1962). [ Footnote 11 ]

															In construing broadly the power of a federal district court to
consider constitutional claims presented in a petition for writ of
habeas corpus, the Court in Fay also reaffirmed the
equitable nature of the writ, noting that "[d]iscretion is implicit
in the statutory command that the judge . . . dispose of the
matter as law and justice require.' 28 U.S.C. § 2243." 372 U.S. at 372 U. S. 438 .
More recently, in Francis v. Henderson, 425 U.
S. 536 (1976), holding that a state prisoner who failed
to make a timely challenge to the composition of the grand jury
that indicted him cannot bring such a challenge in a
post-conviction federal habeas corpus proceeding absent a claim of
actual prejudice, we emphasized: "This Court has long recognized that, in some circumstances,
considerations of comity and concerns for the orderly
administration of criminal justice require a federal court to forgo
the exercise of its habeas corpus power. See Fay v. Noia, 372 U. S.
391 , 372 U. S. 425 -426." Id. at 425 U. S.
539 .

															[ Footnote 12 ] Compare, e.g., United States v. Re, 372 F.2d 641 (CA2), cert. denied, 388 U.S. 912 (1967); United States v.
Jenkins, 281 F.2d 193 (CA3 1960); Eisner v. United
States, 351 F.2d 55 (CA6 1965); De Welles v. United
States, 372 F.2d 67 (CA7), cert. denied, 388 U.S. 919
(1987); Williams v. United States, 307 F.2d 366 (CA9
1962); Armstead v. United States, 318 F.2d 725 (CA5 1963), with, e.g., United States v. Sutton, 321 F.2d 221 (CA4
1963); Gaitan v. United States, 317 F.2d 494 (CA10 1963). See also Thornton v. United States, 125 U.S.App.D.C. 114,
368 F.2d 822 (1966) (search and seizure claims not cognizable under
§ 2255 absent special circumstances).

															[ Footnote 13 ] See, e.g., Friendly, Is Innocence Irrelevant?
Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142
(1970).

															[ Footnote 14 ]

															In Newsome, the Court focused on the issue whether a
state defendant's plea of guilty waives federal habeas corpus
review where state law does not foreclose review of the plea on
direct appeal, and did not consider the substantive scope of the
writ. See 420 U.S. at 420 U. S. 287 n. 4. Similarly, in Cardwell and Cady, the
question considered here was not presented in the petition for
certiorari, and in neither case was relief granted on the basis of
a search and seizure claim. In Cardwell, the plurality
expressly noted that it was not addressing the issue of the
substantive scope of the writ. See 417 U.S. at 417 U. S. 596 ,
and n. 12.

															[ Footnote 15 ]

															As Mr. Justice Black commented in dissent, 394 U.S. at 394 U. S. 231 ,
239, the Kaufman majority made no effort to justify its
result in light of the long-recognized deterrent purpose of the
exclusionary rule. Instead, the Court relied on a series of prior
cases as implicitly establishing the proposition that search and
seizure claims are cognizable in federal habeas corpus proceedings. See Mancusi v. DeForte, 392 U. S. 364 (1968); Carafas v. LaVollee, 391 U.
S. 234 (1968); Warden v. Hayden, 387 U.
S. 294 (1967). But only in Mancusi did this
Court order habeas relief on the basis of a search and seizure
claim, and in that case, as well as in Warden, the issue
of the substantive scope of the writ was not presented to the Court
in the petition for writ of certiorari. Moreover, of the other
numerous occasions cited by MR. JUSTICE BRENNAN s dissent, post at 428 U. S.
518 -519, in which the Court has accepted jurisdiction
over collateral attacks by state prisoners raising Fourth Amendment
claims, in only one case -- Whiteley v. Warden, 401 U. S. 560 (1971) -- was relief granted on that basis. And in Whiteley, as in Mancusi, the issue of the
substantive scope of the writ was not presented in the petition for
certiorari. As emphasized by Mr. Justice Black, only in the most
exceptional cases will we consider issues not raised in the
petition. 394 U.S. at 394 U. S. 239 ,
and n. 7.

															[ Footnote 16 ]

															The issue in Kaufman was the scope of § 2255. Our
decision today rejects the dictum in Kaufman concerning
the applicability of the exclusionary rule in federal habeas corpus
review of state court decisions pursuant to § 2254. To the extent
the application of the exclusionary rule in Kaufman did
not rely upon the supervisory role of this Court over the lower
federal courts, cf. Elkins v. United States, 364 U.
S. 206 (1960), see infra at 428 U. S. 484 ,
the rationale for its application in that context is also
rejected.

															[ Footnote 17 ]

															We find it unnecessary to consider the other issues concerning
the exclusionary rule, or the statutory scope of the habeas corpus
statute, raised by the parties. These include, principally,
whether, in view of the purpose of the rule, it should be applied
on a per se basis without regard to the nature of the
constitutional claim or the circumstances of the police action.

															[ Footnote 18 ] See generally J. Landynski, Search and Seizure and the
Supreme Court (1966); N. Lasson, The History and Development of the
Fourth Amendment to the United States Constitution (1937).

															[ Footnote 19 ]

															The roots of the Weeks decision lay in an early
decision, Boyd v. United States, 116 U.
S. 616 (1886), where the Court held that the compulsory
production of a person's private books and papers for introduction
against him at trial violated the Fourth and Fifth Amendments. Boyd, however, had been severely limited in Adams v.
New York, where the Court, emphasizing that the "law held
unconstitutional [in Boyd ] virtually compelled the
defendant to furnish testimony against himself," 192 U.S. at 192 U. S. 598 ,
adhered to the common law rule that a trial court must not inquire,
on Fourth Amendment grounds, into the method by which otherwise
competent evidence was acquired. See, e.g., Commonwealth v.
Dana, 43 Mass. 329 (1841).

															[ Footnote 20 ] See Terry v. Ohio, 392 U. S. 1 , 392 U. S. 12 -13
(1968); Weeks v. United States, 232 U.
S. 383 , 232 U. S.
391 -392, 232 U. S. 394 (1914); Olmstead v. United States, 277 U.
S. 438 , 277 U. S. 470 (1928) (Holmes, J., dissenting); id. at 277 U. S. 484 (Brandeis, J., dissenting).

															[ Footnote 21 ] See 367 U.S. at 367 U. S. 656 (prevention of introduction of evidence where introduction is
"tantamount" to a coerced confession); id. at 367 U. S. 658 (deterrence of Fourth Amendment violations); id. at 367 U. S. 659 (preservation of judicial integrity).

															Only four Justices adopted the view that the Fourth Amendment
itself requires the exclusion of unconstitutionally seized evidence
in state criminal trials. See id. at 367 U. S. 656 ; id. at 367 U. S. 666 (Douglas, J., concurring). Mr. Justice Black adhered to his view
that the Fourth Amendment, standing alone, was not sufficient, see Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 39 (1949) (concurring opinion), but concluded that, when the Fourth
Amendment is considered in conjunction with the Fifth Amendment ban
against compelled self-incrimination, a constitutional basis
emerges for requiring exclusion. 367 U.S. at 367 U. S. 661 (concurring opinion). See n 19, supra. [ Footnote 22 ]

															Harv.L.Rev. 1, 5-6, and n. 33 (1975).

															[ Footnote 23 ]

															As we recognized last Term, judicial integrity is

															"not offended if law enforcement officials reasonably believed
in good faith that their conduct was in accordance with the law
even if decisions subsequent to the search and seizure have held
that conduct of the type engaged in by the law enforcement
officials is not permitted by the Constitution." United States v. Peltier, 422 U.
S. 531 , 422 U. S. 538 (1975) (emphasis omitted).

															[ Footnote 24 ]

															As Professor Amsterdam has observed:

															"The rule is unsupportable as reparation or compensatory
dispensation to the injured criminal; its sole rational
justification is the experience of its indispensability in
'exert[ing] general legal pressures to secure obedience to the
Fourth Amendment on the part of . . . law-enforcing officers.' As
it serves this function, the rule is a needed, but grud[g]ingly
taken, medicament; no more should be swallowed than is needed to
combat the disease. Granted that so many criminals must go free as
will deter the constables from blundering, pursuance of this policy
of liberation beyond the confines of necessity inflicts gratuitous
harm on the public interest. . . ."

															Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev.
378, 388-389 (1964) (footnotes omitted).

															[ Footnote 25 ] See generally M. Frankel, The Search For Truth -- An
Umpireal View, 31st Annual Benjamin N. Cardozo Lecture, Association
of the Bar of the City of New York, Dec. 16, 1974.

															[ Footnote 26 ]

															Cases addressing the question whether search and seizure
holdings should be applied retroactively also have focused on the
deterrent purpose served by the exclusionary rule, consistently
with the balancing analysis applied generally in the exclusionary
rule context. See Desist v. United States, 394 U.
S. 244 , 394 U. S.
249 -251, 253-254, and n. 21 (1969); Linkletter v.
Walker, 381 U. S. 618 , 381 U. S.
636 -637 (1965) Cf. Fuller v. Alaska, 393 U. S. 80 , 393 U. S. 81 (1968). The "attenuation of the taint" doctrine also is consistent
with the balancing approach. See Brown v. Illinois, 422 U. S. 590 (1975); Wong Sun v. United States, 371 U.S. at 371 U. S.
491 -492; Amsterdam, supra, n 24, at 389-390.

															[ Footnote 27 ] See, e.g., Irvine v. California, 347 U.
S. 128 , 347 U. S. 136 (1954); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 411 (1971) (BURGER, C.J., dissenting); People v. Defore, 242
N.Y. 13, 150 N.E. 585 (1926) (Cardozo, J.); 8 J. Wigmore, Evidence
§ 2184a, pp. 51-52 (McNaughton ed.1961); Amsterdam, supra, n 24, at 388-391; Friendly, supra, n 13, at
161; Oaks, Studying the Exclusionary Rule in Search and Seizure, 37
U.Chi.L.Rev. 665, 736-754 (1970), and sources cited therein;
Paulsen, The Exclusionary Rule and Misconduct by the Police, 52
J.Crim.L.C. & P.S. 255, 256 (1961); Wright. Must the Criminal
Go Free If the Constable Blunders?, 50 Tex.L.Rev. 736 (1972).

															[ Footnote 28 ] See address by Justice Schaefer of the Supreme Court of
Illinois, Is the Adversary System Working in Optimal Fashion?,
delivered at the National Conference on the Causes of Popular
Dissatisfaction With the Administration of Justice, pp. 8-9, Apr.
8, 1976; cf. Frankel, supra, n 25.

															[ Footnote 29 ]

															Many of the proposals for modification of the scope of the
exclusionary rule recognize at least implicitly the role of
proportionality in the criminal justice system and the potential
value of establishing a direct relationship between the nature of
the violation and the decision whether to invoke the rule. See ALI, A Model Code of Pre-arraignment Procedure, §
290.2, pp. 181-183 (1975) ("substantial violations"); H. Friendly,
Benchmarks 260-262 (1967) (even at trial, exclusion should be
limited to "the fruit of activity intentionally or flagrantly
illegal"); 8 Wigmore, supra, n 27, at 52-53. See n 17, supra. [ Footnote 30 ]

															In a different context, Dallin H. Oaks has observed:

															"I am criticizing not our concern with procedures, but our
preoccupation, in which we may lose sight of the fact that our
procedures are not the ultimate goals of our legal system. Our
goals are truth and justice, and procedures are but means to these
ends. . . ."

															"Truth and justice are ultimate values, so understood by our
people, and the law and the legal profession will not be worthy of
public respect and loyalty if we allow our attention to be diverted
from these goals."

															Ethics, Morality and Professional Responsibility, 1975
B.Y.U.L.Rev. 591, 596.

															[ Footnote 31 ]

															Resort to habeas corpus, especially for purposes other than to
assure that no innocent person suffers an unconstitutional loss of
liberty, results in serious intrusions on values important to our
system of government. They include

															"(i) the most effective utilization of limited judicial
resources, (ii) the necessity of finality in criminal trials, (iii)
the minimization of friction between our federal and state systems
of justice, and (iv) the maintenance of the constitutional balance
upon which the doctrine of federalism is founded." Schneckloth v. Bustamonte, 412 U.S. at 412 U. S. 259 (POWELL, J., concurring). See also Kaufman v. United
States, 394 U.S. at 394 U. S. 231 (Black, J., dissenting); Friendly, supra, n 13.

															We nevertheless afford broad habeas corpus relief, recognizing
the need in a free society for an additional safeguard against
compelling an innocent man to suffer an unconstitutional loss of
liberty. The Court in Fay v. Noia described habeas corpus
as a remedy for "whatever society deems to be intolerable
restraints," and recognized that those to whom the writ should be
granted "are persons whom society has grievously wronged." 372 U.S.
at 372 U. S. 401 , 372 U. S. 441 .
But in the case of a typical Fourth Amendment claim, asserted on
collateral attack, a convicted defendant is usually asking society
to redetermine an issue that has no bearing on the basic justice of
his incarceration.

															[ Footnote 32 ]

															The efficacy of the exclusionary rule has long been the subject
of sharp debate. Until recently, scholarly empirical research was
unavailable. Elkins v. United States, 364 U.S. at 364 U. S. 218 .
And the evidence derived from recent empirical research is still
inconclusive. Compare, e.g., Oaks, supra, n 27; Spiotto, Search and
Seizure: An Empirical Study of the Exclusionary Rule and Its
Alternatives, 2 J. Legal Studies 243 (1973), with, e.g., Canon, Is the Exclusionary Rule in Failing Health?, Some New Data
and a Plea Against a Precipitous Conclusion, 62 Ky.L.J. 681 (1974). See United States v. Janis, ante at 428 U. S.
450 -452, n. 22; Amsterdam, Perspectives on the Fourth
Amendment, 58 Minn.L.Rev. 349, 475 n. 593 (1974); Comment, On the
Limitations of Empirical Evaluations of the Exclusionary Rule: A
Critique of the Spiotto Research and United States v.
Calandra, 69 Nw.U.L.Rev. 740 (1974).

															[ Footnote 33 ] See Oaks, supra, n 27, at 756.

															[ Footnote 34 ]

															"As the exclusionary rule is applied time after time, it seems
that its deterrent efficacy at some stage reaches a point of
diminishing returns, and beyond that point, its continued
application is a public nuisance."

															Amsterdam, supra, n 2, at 389.

															[ Footnote 35 ]

															The policy arguments that respondents marshal in support of the
view that federal habeas corpus review is necessary to effectuate
the Fourth Amendment stem from a basic mistrust of the state courts
as fair and competent forums for the adjudication of federal
constitutional rights. The argument is that state courts cannot be
trusted to effectuate Fourth Amendment values through fair
application of the rule, and the oversight jurisdiction of this
Court on certiorari is an inadequate safeguard. The principal
rationale for this view emphasizes the broad differences in the
respective institutional settings within which federal judges and
state judges operate. Despite differences in institutional
environment and the unsympathetic attitude to federal
constitutional claims of some state judges in years past, we are
unwilling to assume that there now exists a general lack of
appropriate sensitivity to constitutional rights in the trial and
appellate courts of the several States. State courts, like federal
courts, have a constitutional obligation to safeguard personal
liberties and to uphold federal law. Martin v.
Hunter's Lessee , 1 Wheat. 304, 14 U. S.
341 -344 (1816). Moreover, the argument that federal
judges are more expert in applying federal constitutional law is
especially unpersuasive in the context of search and seizure
claims, since they are dealt with on a daily basis by trial level
judges in both systems. In sum, there is

															"no intrinsic reason why the fact that a man is a federal judge
should make him more competent, or conscientious, or learned with
respect to the [consideration of Fourth Amendment claims] than his
neighbor in the state courthouse."

															Bator, supra, n 7,
at 509.

															[ Footnote 36 ] Cf. Townsend v. Sain, 372 U. S. 293 (1963).

															[ Footnote 37 ]

															MR. JUSTICE BRENNAN's dissent characterizes the Court's opinion
as laying the groundwork for a "drastic withdrawal of federal
habeas jurisdiction, if not for all grounds . . then at lest [for
many]. . . ." Post at 428 U. S. 517 .
It refers variously to our opinion as a "novel reinterpretation of
the habeas statutes," post at 428 U. S. 515 ;
as a "harbinger of future eviscerations of the habeas statutes," post at 428 U. S. 516 ;
as "rewrit[ing] Congress' jurisdictional statutes . . . and
[barring] access to federal courts by state prisoners with
constitutional claims distasteful to a majority" of the Court, post at 428 U. S. 522 ;
and as a "denigration of constitutional guarantees [that] must
appall citizens taught to expect judicial respect" of
constitutional rights, post at 428 U. S.
523 .

															With all respect, the hyperbole of the dissenting opinion is
misdirected. Our decision today is not concerned with the scope of
the habeas corpus statute as authority for litigating
constitutional claims generally. We do reaffirm that the
exclusionary rule is a judicially created remedy, rather than a
personal constitutional right, see supra at 428 U. S. 486 ,
and we emphasize the minimal utility of the rule when sought to be
applied to Fourth Amendment claims in a habeas corpus proceeding.
As Mr. Justice Black recognized in this context,

															"ordinarily, the evidence seized can in no way have been
rendered untrustworthy . . . , and indeed often . . . alone
establishes beyond virtually any shadow of a doubt that the
defendant is guilty." Kaufman v. United States, 394 U.S. at 394 U. S. 237 (dissenting opinion). In sum, we hold only that a federal court
need not apply the exclusionary rule on habeas review of a Fourth
Amendment claim absent a showing that the state prisoner was denied
an opportunity for a full and fair litigation of that claim at
trial and on direct review. Our decision does not mean that the
federal court lacks jurisdiction over such a claim, but only that
the application of the rule is limited to cases in which there has
been both such a showing and a Fourth Amendment violation.

															[ Footnote 38 ] See n 31, supra. Respondents contend that, since they filed
petitions for federal habeas corpus rather than seeking direct
review by this Court through an application for a writ of
certiorari, and since the time to apply for certiorari has now
passed, any diminution in their ability to obtain habeas corpus
relief on the ground evidence obtained in an unconstitutional
search or seizure was introduced at their trials should be
prospective. Cf. England v. Louisiana State Board of Medical
Examiners, 375 U. S. 411 , 375 U. S.
422 -423 (1964). We reject these contentions. Although
not required to do so under the Court's prior decisions, see
Fay v. Noia, 372 U. S. 391 (1963), respondents were, of course, free to file a timely petition
for certiorari prior to seeking federal habeas corpus relief.

															MR. CHIEF JUSTICE BURGER, concurring.

															I concur in the Court's opinion. By way of dictum, and somewhat
hesitantly, the Court notes that the holding in this case leaves
undisturbed the exclusionary rule as applied to criminal trials.
For reasons stated in my dissent in Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 , 403 U. S. 411 (1971), it seems clear to me that the exclusionary rule has been
operative long enough to demonstrate its flaws. The time has come
to modify its reach, even if it is retained for a small and limited
category of cases.

															Over the years, the strains imposed by reality, in terms of the
costs to society and the bizarre miscarriages of justice that have
been experienced because of the exclusion of reliable evidence when
the "constable blunders," have led the Court to vacillate as to the
rationale for deliberate exclusion of truth from the factfinding
process. The rhetoric has varied with the rationale to the point
where the rule has become a doctrinaire result in search of
validating reasons.

															In evaluating the exclusionary rule, it is important to bear in
mind exactly what the rule accomplishes. Its function is simple --
the exclusion of truth from the factfinding process. Cf. M. Frankel, The Search for Truth -- An Umpireal View, 31st Annual
Benjamin N. Cardozo Lecture, Association of the Bar of the City of
New York, Dec. 16, 1974. The operation of the rule is therefore
unlike that of the Fifth Amendment's protection against compelled
self-incrimination. A confession produced after intimidating or
coercive interrogation is inherently dubious. If a suspect's will
has been overborne, a cloud Page 428 U. S. 497 hangs over his custodial admissions; the exclusion of such
statements is based essentially on their lack of reliability. This
is not the case as to reliable evidence -- a pistol, a
packet of heroin, counterfeit money, or the body of a murder victim
-- which may be judicially declared to be the result of an
"unreasonable" search. The reliability of such evidence is beyond
question; its probative value is certain.

															This remarkable situation -- one unknown to the common law
tradition -- had its genesis in a case calling for the protection
of private papers against governmental intrusions. Boyd v.
United States, 116 U.-S. 616 (1886). See also Weeks v.
United States, 232 U. S. 383 (1914). In Boyd, the Court held that private papers were
inadmissible because of the Government's violation of the Fourth
and Fifth Amendments. In Weeks, the Court excluded private
letters seized from the accused's home by a federal official acting
without a warrant. In both cases, the Court had a clear vision of
what it was seeking to protect. What the Court said in Boyd shows how far we have strayed from the original
path:

															"The search for and seizure of stolen or forfeited goods, or
goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a
man's private books and papers for the purpose of obtaining
information therein contained, or of using them as evidence against
him. The two things differ toto coelo. "

															116 U.S. at 116 U. S. 623 .
(Emphasis added.) In Weeks, the Court emphasized that the
Government, under settled principles of common law, had no right to
keep a person's private papers. The Court noted that the
case did not involve "burglar's tools or other proofs of
guilt. . . ." 232 U.S. at 232 U. S. 392 .
(Emphasis added.)

															From this origin, the exclusionary rule has been Page 428 U. S. 498 changed in focus entirely. It is now used almost exclusively to
exclude from evidence articles which are unlawful to be possessed
or tools and instruments of crime. Unless it can be rationally
thought that the Framers considered it essential to protect the
liberties of the people to hold that which it is unlawful to
possess, then it becomes clear that our constitutional course has
taken a most bizarre tack.

															The drastically changed nature of judicial concern -- from the
protection of personal papers or effects in one's private quarters,
to the exclusion of that which the accused had no right to possess
-- is only one of the more recent anomalies of the rule. The
original incongruity was the rule's inconsistency with the general
proposition that "our legal system does not attempt to do justice
incidentally and to enforce penalties by indirect means." 8 J.
Wigmore, Evidence § 2181, p. 6 (McNaughton ed.1961). The rule is
based on the hope that events in the courtroom or appellate
chambers, long after the crucial acts took place, will somehow
modify the way in which policemen conduct themselves. A more
clumsy, less direct means of imposing sanctions is difficult to
imagine, particularly since the issue whether the policeman did
indeed run afoul of the Fourth Amendment is often not resolved
until years after the event. The "sanction" is particularly
indirect when, as in No. 74-1222, the police go before a
magistrate, who issues a warrant. Once the warrant issues, there is
literally nothing more the policeman can do in seeking to comply
with the law. Imposing an admittedly indirect "sanction" on the
police officer in that instance is nothing less than sophisticated
nonsense.

															Despite this anomaly, the exclusionary rule now rests upon its
purported tendency to deter police misconduct, United States v.
Janis, ante p. 428 U. S. 433 ; United States
v. Page 428 U. S. 499 Calandra, 414 U. S. 338 , 414 U. S. 347 (1974), although, as we know, the rule has long been applied to
wholly good faith mistakes and to purely technical deficiencies in
warrants. Other rhetorical generalizations, including the
"imperative of judicial integrity," have not withstood analysis as
more and more critical appraisals of the rule's operation have
appeared. See, e.g., Oaks, Studying the Exclusionary Rule
in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970). Indeed, settled
rules demonstrate that the "judicial integrity" rationalization is
fatally flawed. First, the Court has refused to entertain claims
that evidence was unlawfully seized unless the claimant could
demonstrate that he had standing to press the contention. Alderman v. United States, 394 U.
S. 165 (1969). If he could not, the evidence, albeit
secured in violation of the Fourth Amendment, is admissible.
Second, as one scholar has correctly observed:

															"[I]t is difficult to accept the proposition that the exclusion
of improperly obtained evidence is necessary for 'judicial
integrity' when no such rule is observed in other common law
jurisdictions such as England and Canada, whose courts are
otherwise regarded as models of judicial decorum and fairness."

															Oaks, supra, at 669. Despite its avowed deterrent
objective, proof is lacking that the exclusionary rule, a purely
judge-created device based on "hard cases," serves the purpose of
deterrence. Notwithstanding Herculean efforts, no empirical study
has been able to demonstrate that the rule does in fact have any
deterrent effect. In the face of dwindling support for the rule,
some would go so far as to extend it to civil cases. United
States v. Janis, ante p. 428 U. S. 433 .

															To vindicate the continued existence of this judge-made rule, it
is incumbent upon those who seek its retention -- and surely its extension -- to demonstrate that Page 428 U. S. 500 it serves its declared deterrent purpose and to show that the
results outweigh the rule's heavy costs to rational enforcement of
the criminal law. See, e.g., Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962). The burden rightly rests
upon those who ask society to ignore trustworthy evidence of guilt
at the expense of setting obviously guilty criminals free to ply
their trade. In my view, it is an abdication of judicial
responsibility to exact such exorbitant costs from society purely
on the basis of speculative and unsubstantiated assumptions. Judge
Henry Friendly has observed:

															"[T]he same authority that empowered the Court to supplement the
[fourth] amendment by the exclusionary rule a hundred and
twenty-five years after its adoption likewise allows it to modify
that rule as the 'lessons of experience' may teach."

															The Bill of Rights as a Code of Criminal Procedure, 53
Calif.L.Rev. 929, 952-953 (1965). In Bivens, I suggested
that, despite its grave shortcomings, the rule need not be totally
abandoned until some meaningful alternative could be developed to
protect innocent persons aggrieved by police misconduct. With the
passage of time, it now appears that the continued existence of the
rule, as presently implemented, inhibits the development of
rational alternatives. The reason is quite simple: incentives for
developing new procedures or remedies will remain minimal or
nonexistent so long as the exclusionary rule is retained in its
present form. It can no longer be assumed that other branches of
government will act while judges cling to this Draconian,
discredited device in its present absolutist form. Legislatures are
unlikely to create statutory alternatives, or impose Page 428 U. S. 501 direct sanctions on errant police officers or on the public
treasury by way of tort actions, so long as persons who commit
serious crimes continue to reap the enormous and undeserved
benefits of the exclusionary rule. And of course, by definition,
the direct beneficiaries of this rule can be none but persons
guilty of crimes. With this extraordinary "remedy" for Fourth
Amendment violations, however slight, inadvertent, or technical,
legislatures might assume that nothing more should be done, even
though a grave defect of the exclusionary rule is that it offers no
relief whatever to victims of overzealous police work who never
appear in court. Schaefer, The Fourteenth Amendment and Sanctity of
the Person, 4 Nw U.L.Rev. 1, 14 (1969). And even if legislatures
were inclined to experiment with alternative remedies, they have no
assurance that the judicially created rule will be abolished or
even modified in response to such legislative innovations. The
unhappy result, as I see it, is that alternatives will inevitably
be stymied by rigid adherence on our part to the exclusionary rule.
I venture to predict that overruling this judicially contrived
doctrine -- or limiting its scope to egregious, bad-faith conduct
-- would inspire a surge of activity toward providing some kind of
statutory remedy for persons injured by police mistakes or
misconduct.

															The Court's opinion today eloquently reflects something of the
dismal social costs occasioned by the rule. Ante at 428 U. S.
489 -491. As MR. JUSTICE WHITE correctly observes today
in his dissent, the exclusionary rule constitutes a "senseless
obstacle to arriving at the truth in many criminal trials." Post at 428 U. S. 538 .
He also suggests that the rule be substantially modified

															"so as to prevent its application in those many circumstances
where the evidence at issue was seized by an officer acting in the
good faith belief that his conduct comported with existing Page 428 U. S. 502 law and having reasonable grounds for this belief." Ibid. From its genesis in the desire to protect private papers, the
exclusionary rule has now been carried to the point of potentially
excluding from evidence the traditional corpus delicti in
a murder or kidnaping case. See People v. Mitchell, 39
N.Y.2d 173, 347 N.E.2d 607, cert. denied, 426 U.S. 953
(1976). Cf. Killough v. United States, supra. Expansion of
the reach of the exclusionary rule has brought Cardozo's grim
prophecy in People v. Defore, 242 N.Y. 13, 24, 150 N.E.
585, 588 (1926), nearer to fulfillment:

															"A room is searched against the law, and the body of a murdered
man is found. If the place of discovery may not be proved, the
other circumstances may be insufficient to connect the defendant
with the crime. The privacy of the home has been infringed, and the
murderer goes free. . . . We may not subject society to these
dangers until the Legislature has spoken with a clearer voice."

															MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs,
dissenting.

															The Court today holds

															"that where the State has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at his trial." Ante at 428 U. S. 494 .
To be sure, my Brethren are hostile to the continued vitality of
the exclusionary rule as part and parcel of the Fourth Amendment's
prohibition of unreasonable searches and seizures, as today's
decision in United States v. Janis, ante p. 428 U. S. 433 ,
confirms. But these cases, despite the veil of Fourth Amendment
terminology employed by the Page 428 U. S. 503 Court, plainly do not involve any question of the right of a
defendant to have evidence excluded from use against him in his
criminal trial when that evidence was seized in contravention of
rights ostensibly secured [ Footnote
2/1 ] by the Fourth and Fourteenth Amendments. Rather, they
involve the question of the availability of a federal form for
vindicating those federally guaranteed rights. Today's holding
portends substantial evisceration of federal habeas corpus
jurisdiction, and I dissent.

															The Court's opinion does not specify the particular basis on
which it denies federal habeas jurisdiction over claims of Fourth
Amendment violations brought by state prisoners. The Court insists
that its holding is based on the Constitution, see, e.g.,
ante at 428 U. S. 482 ,
but in light of the explicit language of 28 U.S.C. § 2254 [ Footnote 2/2 ] (significantly Page 428 U. S. 504 not even mentioned by the Court), I can only presume that the
Court intends to be understood to hold either that respondents are
not, as a matter of statutory Page 428 U. S. 505 construction; "in custody in violation of the Constitution or
laws . . . of the United States," or that " considerations of
comity and concerns for the orderly administration of criminal
justice,'" ante at 428 U. S. 478 n. 11, [ Footnote 2/3 ] are
sufficient Page 428 U. S. 506 to allow this Court to rewrite jurisdictional statutes enacted
by Congress. Neither ground of decision is tenable; the former is
simply illogical, and the latter is an arrogation of power
committed solely to the Congress. I Much of the Court's analysis implies that respondents are not
entitled to habeas relief because they are not being
unconstitutionally detained. Although purportedly adhering to the
principle that the Fourth and Fourteenth Amendments "require
exclusion" of evidence seized in violation of their commands, ante at 428 U. S. 481 ,
the Court informs us that there has merely been a "view" in our
cases that

															"the effectuation of the Fourth Amendment . . . requires the
granting of habeas corpus relief when a prisoner has been convicted
in state court on the basis of evidence obtained in an illegal
search or seizure. . . ." Ante at 428 U. S.
480 -481. [ Footnote 2/4 ]
Applying a "balancing Page 428 U. S. 507 test," see, e.g., ante at 428 U. S.
487 -489, 428 U. S.
489 -490, 428 U. S.
493 -494, the Court then concludes that this "view" is
unjustified, and that the policies of the Fourth Amendment would
not be implemented if claims to the benefits of the exclusionary
rule were cognizable in collateral attacks on state court
convictions. [ Footnote 2/5 ]

															Understandably, the Court must purport to cast its holding in
constitutional terms, because that avoids a direct confrontation
with the incontrovertible facts that the habeas statutes have
heretofore always been construed to grant jurisdiction to entertain
Fourth Amendment claims of both state and federal prisoners, that
Fourth Amendment principles have been applied in decisions on the
merits in numerous cases on collateral review of final convictions,
and that Congress has legislatively accepted our interpretation of
congressional intent as to Page 428 U. S. 508 the necessary scope and function of habeas relief. Indeed, the
Court reaches its result without explicitly overruling any of our
plethora of precedents inconsistent with that result or even
discussing principles of stare decisis. Rather, the Court
asserts, in essence, that the Justices joining those prior
decisions or reaching the merits of Fourth Amendment claims simply
overlooked the obvious constitutional dimension to the problem in
adhering to the "view" that granting collateral relief when state
courts erroneously decide Fourth Amendment issues would effectuate
the principles underlying that Amendment. [ Footnote 2/6 ] But, shorn of the rhetoric of "interest
balancing" Page 428 U. S. 509 used to obscure what is at stake in this case, it is evident
that today's attempt to rest the decision on the Constitution must
fail so long as Mapp v. Ohio, 367 U.
S. 643 (1961), remains undisturbed.

															Under Mapp, as a matter of federal constitutional law,
a state court must exclude evidence from the trial of an
individual whose Fourth and Fourteenth Amendment rights were
violated by a search or seizure that directly or indirectly
resulted in the acquisition of that evidence. As United States
v. Calandra, 414 U. S. 338 , 414 U. S. 347 (1974), reaffirmed,

															"evidence obtained in violation of the Fourth Amendment cannot
be used in a criminal proceeding against the victim of the illegal
search and seizure. [ Footnote
2/7 ]"

															When a state court admits such evidence, it has committed a constitutional error, and, unless that error is harmless
under federal standards, see, e.g., Chapman v. California, 386 U. S. 18 (1967), it follows ineluctably that the defendant has been placed
"in custody in violation of the Constitution" within the
comprehension of 28 U.S.C. § 2254. In short, it escapes me as to
what logic can support the assertion that the defendant's
unconstitutional confinement obtains during the process of direct
review, no matter how long that process takes, [ Footnote 2/8 ] Page 428 U. S. 510 but that the unconstitutionality then suddenly dissipates at the
moment the claim is asserted in a collateral attack on the
conviction.

															The only conceivable rationale upon which the Court's
"constitutional" thesis might rest is the statement that

															"the [exclusionary] rule is not a personal constitutional right.
. . . Instead, 'the rule is a judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent
effect.'" Ante at 428 U. S. 486 ,
quoting United States v. Calandra, supra at 414 U. S. 348 .
Although my dissent in Calandra rejected, in light of
contrary decisions establishing the role of the exclusionary rule,
the premise that an individual has no constitutional right to have
unconstitutionally seized evidence excluded from all use by the
government, I need not dispute that point here. [ Footnote 2/9 ] For today's holding is not logically
defensible even under Calandra. However the Court
reinterprets Mapp, and whatever the rationale now
attributed to Mapp's holding or the purpose ascribed to
the exclusionary rule, the prevailing constitutional rule is that unconstitutionally seized evidence cannot be
admitted in the criminal trial of a person whose federal
constitutional rights were violated by the search or seizure. The
erroneous admission of such evidence is a violation of the Federal
Constitution -- Mapp inexorably means at least this much,
or there would be no basis for applying the exclusionary rule in
state criminal proceedings -- and an Page 428 U. S. 511 accused against whom such evidence is admitted has been
convicted in derogation of rights mandated by, and is "in custody
in violation of," the Constitution of the United States. Indeed,
since state courts violate the strictures of the Federal
Constitution by admitting such evidence, then, even if federal
habeas review did not directly effectuate Fourth Amendment values,
a proposition I deny, that review would nevertheless serve to
effectuate what is concededly a constitutional principle concerning
admissibility of evidence at trial.

															The Court, assuming without deciding that respondents were
convicted on the basis of unconstitutionally obtained evidence
erroneously admitted against them by the state trial courts,
acknowledges that respondents had the right to obtain a reversal of
their convictions on appeal in the state courts or on certiorari to
this Court. Indeed, since our rules relating to the time limits for
applying for certiorari in criminal cases are nonjurisdictional,
certiorari could be granted respondents even today and their
convictions could be reversed despite today's decisions. See
also infra at 428 U. S.
533 -534. And the basis for reversing those convictions
would of course have to be that the States, in rejecting
respondents' Fourth Amendment claims, had deprived them of a right
in derogation of the Federal Constitution. It is simply
inconceivable that that constitutional deprivation suddenly
vanishes after the appellate process has been exhausted. And as
between this Court on certiorari and federal district courts on
habeas, it is for Congress to decide what the most efficacious
method is for enforcing federal constitutional rights and
asserting the primacy of federal law. See infra at 428 U. S. 522 , 428 U. S.
525 -530. The Court, however, simply ignores the settled
principle that, for purposes of adjudicating constitutional claims,
Congress, which has the power to do so under Art. III of the
Constitution, has effectively Page 428 U. S. 512 cast the district courts sitting in habeas in the role of
surrogate Supreme Courts. [ Footnote
2/10 ]

															Today's opinion itself starkly exposes the illogic of the
Court's seeming premise that the rights recognized Page 428 U. S. 513 in Mapp somehow suddenly evaporate after all direct
appeals are exhausted. For the Court would not bar assertion of
Fourth Amendment claims on habeas if the Page 428 U. S. 514 defendant was not accorded "an opportunity for full and fair
litigation of his claim in the state courts." Ante at 428 U. S. 469 . See also ante at 428 U. S. 480 ,
quoting Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 250 (1973) (POWELL, J., concurring); ante at 428 U. S. 482 , 428 U. S. 486 , 428 U. S.
489 -490, 428 U. S.
493 -494, and n. 37. But this "exception" is impossible
if the Court really means that the "rule" that Fourth Amendment
claims are not cognizable on habeas is constitutionally based. For
if the Constitution mandates that "rule" because it is a

															"dubious assumption that law enforcement authorities would fear
that federal habeas review might reveal flaws in a search or
seizure that went undetected at trial and on appeal," ante at 428 U. S. 493 ,
is it not an equally "dubious assumption" that those same police
officials would fear that federal habeas review might reveal that
the state courts had denied the defendant an opportunity to have a
full and fair hearing on his claim that went undetected at trial
and on appeal? [ Footnote 2/11 ]
And to the extent the Court is making the unjustifiable assumption
that our certiorari jurisdiction is adequate to correct "routine"
condonation of Fourth Amendment violations by state courts, surely
it follows a fortiori that our jurisdiction is adequate to
redress the "egregious" situation in which the state courts did not
even accord a fair hearing on the Fourth Amendment claim. The
"exception" thus may appear to make the holding more palatable, but
it merely highlights the lack of a "constitutional" rationale for
today's constriction of habeas jurisdiction.

															The Court adheres to the holding of Mapp that the
Constitution "require[d] exclusion" of the evidence admitted at
respondents' trials. Ante at 428 U. S. 481 .
However, Page 428 U. S. 515 the Court holds that the Constitution "does not require" that
respondents be accorded habeas relief if they were accorded "an
opportunity for full and fair litigation of [their] Fourth
Amendment claim[s]" in state courts. Ante at 428 U. S. 482 ; see also ante at 428 U. S. 495 n. 37. Yet once the Constitution was interpreted by Mapp to require exclusion of certain evidence at trial, the Constitution
became irrelevant to the manner in which that constitutional right
was to be enforced in the federal courts; that inquiry is only a
matter of respecting Congress' allocation of federal judicial power
between this Court's appellate jurisdiction and a federal district
court's habeas jurisdiction. Indeed, by conceding that today's
"decision does not mean that the federal [district] court lacks
jurisdiction over [respondents'] claim[s]," ibid., the
Court admits that respondents have sufficiently alleged that they
are "in custody in violation of the Constitution" within the
meaning of § 2254, and that there is no "constitutional" rationale
for today's holding. Rather, the constitutional "interest
balancing" approach to this case is untenable, and I can only view
the constitutional garb in which the Court dresses its result as a
disguise for rejection of the longstanding principle that there are
no "second class" constitutional rights for purposes of federal
habeas jurisdiction; it is nothing less than an attempt to provide
a veneer of respectability for an obvious usurpation of Congress'
Art. III power to delineate the jurisdiction of the federal
courts. II Therefore, the real ground of today's decision -- a ground that
is particularly troubling in light of its portent for habeas
jurisdiction generally -- is the Court's novel reinterpretation of
the habeas statutes; this would read the statutes as requiring the
district courts routinely Page 428 U. S. 516 to deny habeas relief to prisoners "in custody in violation of
the Constitution or laws . . . of the United States" as a matter of
judicial "discretion" -- a "discretion" judicially manufactured
today contrary to the express statutory language -- because such
claims are "different in kind" from other constitutional violations
in that they "do not impugn the integrity of the factfinding
process,'" ante at 428 U. S. 479 ,
and because application of such constitutional strictures "often
frees the guilty." Ante at 428 U. S. 490 .
Much in the Court's opinion suggests that a construction of the
habeas statutes to deny relief for non-"guilt-related"
constitutional violations, based on this Court's vague notions of
comity and federalism, see, e.g., ante at 428 U. S. 478 n. 11, is the actual premise for today's decision, and, although
the Court attempts to bury its underlying premises in footnotes,
those premises mark this case as a harbinger of future
eviscerations of the habeas statutes that plainly does violence to
congressional power to frame the statutory contours of habeas
jurisdiction. [ Footnote 2/12 ] For
we are told that "[r]esort to habeas corpus, especially for purposes other than
to assure that no innocent person suffers an unconstitutional loss
of liberty, results in serious intrusions on values important to
our system of government,"

															including waste of judicial resources, lack of finality of
criminal convictions, friction between the federal and state
judiciaries, and incursions on "federalism." Ante at 428 U. S. 491 n. 31. We are told that federal determination of Fourth Amendment
claims merely involves "an issue that has no bearing on the basic
justice of [the defendant's] Page 428 U. S. 517 incarceration," ante at 428 U. S. 492 n. 31, and that "the ultimate question [in the criminal process
should invariably be] guilt or innocence." Ante at 428 U. S. 490 ; see also ante at 428 U. S. 491 n. 30; ante at 428 U. S. 490 ,
quoting Kaufman v. United States, 394 U.
S. 217 , 394 U. S. 237 (1969) (Black, J., dissenting). We are told that the "policy
arguments" of respondents to the effect that federal courts must be
the ultimate arbiters of federal constitutional rights, and that
our certiorari jurisdiction is inadequate to perform this task,
"stem from a basic mistrust of the state courts as fair and
competent forums for the adjudication of federal constitutional
rights"; the Court, however, finds itself

															"unwilling to assume that there now exists a general lack of
appropriate sensitivity to constitutional rights in the trial and
appellate courts of the several States,"

															and asserts that it is "unpersuaded" by "the argument that
federal judges are more expert in applying federal constitutional
law" because

															"there is 'no intrinsic reason why the fact that a man is a
federal judge should make him more competent, or conscientious, or
learned with respect to the [consideration of Fourth Amendment
claims] than his neighbor in the state courthouse.'" Ante at 428 U. S.
493 -494, n. 35. Finally, we are provided a revisionist
history of the genesis and growth of federal habeas corpus
jurisdiction. Ante at 428 U. S.
471 -482 (Part II). If today's decision were only that
erroneous state court resolution of Fourth Amendment claims did not
render the defendant's resultant confinement "in violation of the
Constitution," these pronouncements would have been wholly
irrelevant and unnecessary. I am therefore justified in
apprehending that the groundwork is being laid today for a drastic
withdrawal of federal habeas jurisdiction, if not for all grounds
of alleged unconstitutional detention, then at least for claims --
for example, of double jeopardy, entrapment, self-incrimination, Miranda violations, Page 428 U. S. 518 and use of invalid identification procedures [ Footnote 2/13 ] -- that this Court later decides
are not "guilt-related."

															To the extent the Court is actually premising its holding on an
interpretation of 28 U.S.C. § 2241 or § 2254, it is overruling the
heretofore settled principle that federal habeas relief is
available to redress any denial of asserted constitutional
rights, whether or not denial of the right affected the truth or
fairness of the factfinding process. As MR JUSTICE POWELL
recognized in proposing that the Court reevaluate the scope of
habeas relief as a statutory matter in Schneckloth v.
Bustamonte, 412 U.S. at 412 U. S. 251 (concurring opinion), "on petition for habeas corpus or collateral
review filed in a federal district court, whether by state
prisoners under 28 U.S.C. § 2254 or federal prisoners under § 2255,
the present rule is that Fourth Amendment claims may be asserted
and the exclusionary rule must be applied in precisely the same
manner as on direct review." This Court has on numerous occasions
accepted jurisdiction over collateral attacks by state prisoners
premised on Fourth Amendment violations, often over dissents that
as a statutory matter such claims should not be cognizable. See, e.g., Lefkowitz v. Newsome, 420 U.
S. 283 , 420 U. S.
291 -292, and nn. 8, 9 (1975); Cardwell v.
Lewis, 417 U. S. 583 (1974); Cady v. Dombrowski, 413 U.
S. 433 (1973); Adams v. Williams, 407 U.
S. 143 (1972); Whiteley v. Warden, 401 U.
S. 560 (1971); Chambers v. Maroney, 399 U. S. 42 (1970); Harris Page 428 U. S. 519 v. Nelson, 394 U. S. 286 (1969); Mancusi v. DeForte, 392 U.
S. 364 (1968); Carafas v. LaVallee, 391 U. S. 234 (1968); Warden v. Hayden, 387 U.
S. 294 (1967). Consideration of the merits in each of
these decisions reaffirmed the unrestricted scope of habeas
jurisdiction, but each decision must be deemed overruled by today's
holding. [ Footnote 2/14 ]

															Federal habeas corpus review of Fourth Amendment claims of state
prisoners was merely one manifestation of the principle that

															"conventional notions of finality in criminal litigation cannot
be permitted to defeat the manifest federal policy that federal
constitutional rights of personal liberty shall not be denied
without the fullest opportunity for plenary federal judicial
review." Fay v. Noia, 372 U. S. 391 , 372 U. S. 424 (1963). This Court's precedents have been

															"premised in large part on a recognition that the availability
of collateral remedies is necessary to insure the integrity of
proceedings at and before trial where constitutional rights are at
stake. Our decisions leave no doubt that the federal habeas remedy
extends Page 428 U. S. 520 to state prisoners alleging that unconstitutionally obtained
evidence was admitted against them at trial." Kaufman v. United States, 394 U.S. at 394 U. S. 225 .
Some of those decisions explicitly considered and rejected the
"policies" referred to by the Court, ante at 428 U. S.
491 -492, n. 31. E.g., Brown v. Allen, 344 U. S. 443 (1953); Fay v. Noia, supra; Kaufman v. United States,
supra. There were no "assumptions" with respect to the
construction of the habeas statutes, but reasoned decisions that
those policies were an insufficient justification for shutting the
federal habeas door to litigants with federal constitutional claims
in light of such countervailing considerations as

															"the necessity that federal courts have the 'last say' with
respect to questions of federal law, the inadequacy of state
procedures to raise and preserve federal claims, the concern that
state judges may be unsympathetic to federally created rights,
[and] the institutional constraints on the exercise of this Court's
certiorari jurisdiction to review state convictions,"

															394 U.S. at 394 U. S.
225 -226, as well as the fundamental belief

															"that adequate protection of constitutional rights relating to
the criminal trial process requires the continuing availability of
a mechanism for relief." Id. at 394 U. S. 226 . See generally, e.g., Fay v. Noia, supra; Townsend v. Sain, 372 U. S. 293 (1963). As Mr. Justice Harlan, who had dissented from many of the
cases initially construing the habeas statutes, readily recognized,
habeas jurisdiction as heretofore accepted by this Court was

															"not only concerned with those rules which substantially affect
the factfinding apparatus of the original trial. Under the
prevailing notions, Kaufman v. United States, supra at 394 U. S. 224 -226, the
threat of habeas serves as a necessary additional incentive for
trial and appellate courts throughout the land to conduct their
proceedings in a manner consistent with established constitutional
standards. " Desist v. Page 428 U. S. 521 United States, 394 U. S. 244 , 394 U. S.
262 -263 (1969) (dissenting) (emphasis supplied). The
availability of collateral review assures "that the lower federal
and state courts toe the constitutional line." Id. at 394 U. S.
264 .

															"[H]abeas lies to inquire into every constitutional defect in
any criminal trial, where the petitioner remains 'in custody'
because of the judgment in that trial, unless the error committed
was knowingly and deliberately waived or constitutes mere harmless
error. That seems to be the implicit premise of Brown v. Allen,
supra, and the clear purport of Kaufman v. United States,
supra. . . . The primary justification given by the Court for
extending the scope of habeas to all alleged constitutional errors
is that it provides a quasi -appellate review function,
forcing trial and appellate courts in both the federal and state
system to toe the constitutional mark." Mackey v. United States, 401 U.
S. 667 , 401 U. S.
685 -687 (1971) (opinion of Harlan, J.). See also
Brown v. Allen, supra at 344 U. S. 508 (opinion of Frankfurter, J.) ("[N]o binding weight is to be
attached to the State determination. The congressional requirement
is greater. The State court cannot have the last say when it,
though on fair consideration of what procedurally may be deemed
fairness, may have misconceived a federal constitutional right"); Fay v. Noia, supra at 372 U. S. 422 .
In effect, habeas jurisdiction is a deterrent to unconstitutional
actions by trial and appellate judges, and a safeguard to ensure
that rights secured under the Constitution and federal laws are not
merely honored in the breach. "[I]ts function has been to provide a
prompt and efficacious remedy for whatever society deems to be
intolerable restraints." Id. at 372 U. S.
401 -402. "[T]he historical role of the writ of habeas
corpus [is that of] an effective and imperative remedy for
detentions contrary to fundamental law." Id. at 372 U. S.
438 .

															At least since Brown v. Allen, supra, detention
emanating Page 428 U. S. 522 from judicial proceedings in which constitutional rights were
denied has been deemed "contrary to fundamental law," and all
constitutional claims have thus been cognizable on federal habeas
corpus. There is no foundation in the language or history of the
habeas statutes for discriminating between types of constitutional
transgressions, and efforts to relegate certain categories of
claims to the status of "second-class rights" by excluding them
from that jurisdiction have been repulsed. [ Footnote 2/15 ] Today's opinion, however, marks the
triumph of those who have sought to establish a hierarchy of
constitutional rights, and to deny for all practical purposes a
federal forum for review of those rights that this Court deems less
worthy or important. Without even paying the slightest deference to
principles of stare decisis or acknowledging Congress'
failure for two decades to alter the habeas statutes in light of
our interpretation of congressional intent to render all federal
constitutional contentions cognizable on habeas, the Court today
rewrites Congress' jurisdictional statutes as heretofore construed,
and bars access to federal courts by state prisoners with
constitutional claims distasteful to a majority of my Brethren. But
even ignoring principles of stare decisis dictating that
Congress is the appropriate vehicle for embarking on such a
fundamental shift in the jurisdiction of the federal courts, I can
find no adequate justification elucidated by the Court for
concluding that habeas relief for all federal constitutional claims
is no longer compelled under the reasoning of Brown, Fay, and Kaufman. I would address the Court's concerns for effective
utilization Page 428 U. S. 523 of scarce judicial resources, finality principles, federal-state
friction, and notions of "federalism" only long enough to note that
such concerns carry no more force with respect to
non-"guilt-related" constitutional claims than they do with respect
to claims that affect the accuracy of the factfinding process.
Congressional conferral of federal habeas jurisdiction for the
purpose of entertaining petitions from state prisoners necessarily
manifested a conclusion that such concerns could not be
controlling, and any argument for discriminating among
constitutional rights must therefore depend on the nature of the
constitutional right involved.

															The Court, focusing on Fourth Amendment rights as it must to
justify such discrimination, thus argues that habeas relief for
non-"guilt-related" constitutional claims is not mandated, because
such claims do not affect the "basic justice" of a defendant's
detention, see ante at 428 U. S. 492 n. 31; this is presumably because the "ultimate goal" of the
criminal justice system is "truth and justice." E.g., ante at 428 U. S. 490 ,
and 428 U. S. 491 n. 30. [ Footnote 2/16 ] This
denigration of constitutional guarantees and constitutionally
mandated procedures, relegated by the Court to the status of mere
utilitarian tools, must appall citizens taught to expect judicial
respect and support for their constitutional rights. Even if
punishment of the "guilty" were society's highest value -- and
procedural safeguards denigrated to this end -- in a constitution
that a majority of the Members of this Court would prefer, that is
not the ordering of priorities under the Constitution forged by the
Framers, and this Court's sworn duty is to uphold that
Constitution, Page 428 U. S. 524 and not to frame its own. The procedural safeguards mandated in
the Framers' Constitution are not admonitions to be tolerated only
to the extent they serve functional purposes that ensure that the
"guilty" are punished and the "innocent" freed; rather, every
guarantee enshrined in the Constitution, our basic charter and the
guarantor of our most precious liberties, is by it endowed with an
independent vitality and value, and this Court is not free to
curtail those constitutional guarantees even to punish the most
obviously guilty. Particular constitutional rights that do not
affect the fairness of factfinding procedures cannot for that
reason be denied at the trial itself. What possible justification
then can there be for denying vindication of such rights on federal
habeas when state courts do deny those rights at trial? To sanction
disrespect and disregard for the Constitution in the name of
protecting society from lawbreakers is to make the government
itself lawless, and to subvert those values upon which our ultimate
freedom and liberty depend. [ Footnote
2/17 ] "The history of American freedom Page 428 U. S. 525 is, in no small measure, the history of procedure," Malinski
v. New York, 324 U. S. 401 , 324 U. S. 414 (1945) (opinion of Frankfurter, J.), and, as Mr. Justice Holmes so
succinctly reminded us, it is "a less evil that some criminals
should escape than that the Government should play an ignoble
part." Olmstead v. United States, 277 U.
S. 438 , 277 U. S. 470 (1928) (dissenting opinion).

															"[I]t is an abuse to deal too casually and too lightly with
rights guaranteed by the Federal Constitution, even though they
involve limitations upon State power and may be invoked by those
morally unworthy." Brown v. Allen, 344 U.S. at 344 U. S. 498 (opinion of Frankfurter, J.). Enforcement of federal constitutional
rights that redress constitutional violations directed against the
"guilty" is a particular function of federal habeas review, lest
judges trying the "morally unworthy" be tempted not to execute the
supreme law of the land. State judges popularly elected may have
difficulty resisting popular pressures not experienced by federal
judges given lifetime tenure designed to immunize them from such
influences, and the federal habeas statutes reflect the
congressional judgment that such detached federal review is a
salutary safeguard against any detention of an individual "in
violation of the Constitution or laws . . . of the United
States."

															Federal courts have the duty to carry out the
congressionally Page 428 U. S. 526 assigned responsibility to shoulder the ultimate burden of
adjudging whether detentions violate federal law, and today's
decision substantially abnegates that duty. The Court does not,
because it cannot, dispute that institutional constraints totally
preclude any possibility that this Court can adequately oversee
whether state courts have properly applied federal law, [ Footnote 2/18 ] and does not controvert
the fact that federal habeas jurisdiction is partially designed to
ameliorate that inadequacy. Thus, although I fully agree that state
courts "have a constitutional obligation to safeguard personal
liberties and to uphold federal law," and that there is no "general
lack of appropriate sensitivity to constitutional rights in the
trial and appellate courts of the several States," ante at 428 U. S. 494 n. 35, I cannot agree that it follows that, as the Court today
holds, federal court determination of almost all Fourth Amendment
claims of state prisoners should be barred, and that state court
resolution of those issues should be insulated from the federal
review Congress intended. For, as Mr. Justice Frankfurter so aptly
framed the issue in rejecting similar contentions in construing the
habeas statutes in Brown v. Allen, supra: "Congress could have left the enforcement of federal
constitutional rights governing the administration of criminal
justice in the States exclusively to the State courts. These
tribunals are under the same duty as the federal courts to respect
rights under the United States Constitution. . . . It is not for us
to determine whether this power should have been vested in the
federal courts. . . . [T]he wisdom of such a modification in
the law is for Congress to Page 428 U. S. 527 consider, particularly in view of the effect of the
expanding concept of due process upon enforcement by the States of
their criminal laws. It is for this Court to give fair effect
to the habeas corpus jurisdiction as enacted by Congress. By giving
the federal courts that jurisdiction, Congress has imbedded into
federal legislation the historic function of habeas corpus adapted
to reaching an enlarged area of claims. . . ."

															". . . But the prior State determination of a claim under the
United States Constitution cannot foreclose consideration of such a
claim, else the State court would have the final say which the
Congress, by the Act of 1867, provided it should not have."

															344 U.S. at 344 U. S.
499 -50 (emphasis supplied).

															"State adjudication of questions of law cannot, under the habeas
corpus statute, be accepted as binding. It is precisely these
questions that the federal judge is commanded to decide." Id. at 344 U. S.
506 .

															"Congress has the power to distribute among the courts of the
States and of the United States jurisdiction to determine federal
claims. It has seen fit to give this Court power to review errors
of federal law in State determinations, and in addition to give to
the lower federal courts power to inquire into federal claims by
way of habeas corpus. But it would be in disregard of what Congress
has expressly required to deny State prisoners access to the
federal courts."

															". . . Insofar as this jurisdiction enables federal district
courts to entertain claims that State Supreme Courts have denied
rights guaranteed by the United States Constitution, it is not a
case of a lower court sitting in judgment on a higher court. It
is merely one aspect of respecting the Supremacy Clause of
the Page 428 U. S. 528 Constitution whereby federal law is higher than State law.
It is for the Congress to designate the member in the hierarchy of
the federal judiciary to express the higher law. The fact that
Congress has authorized district courts to be the organ of the
higher law, rather than a Court of Appeals, or exclusively this
Court, does not mean that it allows a lower court to overrule a
higher court. It merely expresses the choice of Congress how the
superior authority of federal law should be asserted."

															344 U.S. at 344 U. S.
508 -510 (emphasis supplied).

															Congress' action following Townsend v. Sain, 372 U. S. 293 (1963), and Fay v. Noia, 372 U. S. 391 (1963), emphasized "the choice of Congress how the superior
authority of federal law should be asserted" in federal courts. Townsend v. Sain outlined the duty of federal habeas
courts to conduct factfinding hearings with respect to petitions
brought by state prisoners, and Fay v. Noia defined the
contours of the "exhaustion of state remedies" prerequisite in §
2254 in light of its purpose of according state courts the first
opportunity to correct their own constitutional errors. Congress
expressly modified the habeas statutes to incorporate the Townsend standards so as to accord a limited and carefully
circumscribed res judicata effect to the factual
determinations of state judges. But Congress did not alter the
principle of Brown, Fay, and Kaufman that
collateral relief is to be available with respect to any
constitutional deprivation, and that federal district judges,
subject to review in the courts of appeals and this Court, are to
be the spokesmen of the supremacy of federal law. Indeed,
subsequent congressional efforts to amend those jurisdictional
statutes to effectuate the result that my Brethren accomplish by
judicial fiat have Page 428 U. S. 529 consistently proved unsuccessful. There remains, as noted
before, no basis whatsoever in the language or legislative history
of the habeas statutes for establishing such a hierarchy of federal
rights; certainly there is no constitutional warrant in this Court
to override a congressional determination respecting federal court
review of decisions of state judges determining constitutional
claims of state prisoners.

															In any event, respondents' contention that Fourth Amendment
claims, like all other constitutional claims, must be cognizable on
habeas does not rest on the ground attributed to them by the Court
-- that the state courts are rife with animosity to the
constitutional mandates of this Court. It is one thing to assert
that state courts, as a general matter, accurately decide federal
constitutional claims; it is quite another to generalize from that
limited proposition to the conclusion that, despite congressional
intent that federal courts sitting in habeas must stand ready to
rectify any constitutional errors that are nevertheless committed,
federal courts are to be judicially precluded from ever considering
the merits of whole categories of rights that are to be accorded
less procedural protection merely because the Court proclaims that
they do not affect the accuracy or fairness of the factfinding
process.

															"Under the guise of fashioning a procedural rule, we are not
justified in wiping out the practical efficacy of a jurisdiction
conferred by Congress on the District Courts. Rules which in effect
treat all these cases indiscriminately as frivolous do not fall far
short of abolishing this head of jurisdiction." Brown v. Allen, 344 U.S. at 344 U. S.
498 -499 (opinion of Frankfurter, J.). To the extent
state trial and appellate judges faithfully, accurately, and
assiduously apply federal law and the constitutional principles
enunciated by the federal Page 428 U. S. 530 courts, such determinations will be vindicated on the merits
when collaterally attacked. But to the extent federal law is
erroneously applied by the state courts, there is no authority in
this Court to deny defendants the right to have those errors
rectified by way of federal habeas; [ Footnote 2/19 ] indeed, the Court's reluctance to accept
Congress' desires along these lines can only be a manifestation of
this Court's mistrust for federal judges. Furthermore, some might
be expected to dispute the academic's dictum seemingly accepted by
the Court that a federal judge is not necessarily more skilled than
a state judge in applying federal law. See ante at 428 U. S. 494 n. 35. For the Supremacy Clause of the Constitution proceeds on a
different premise, and Congress, as it was constitutionally
empowered to do, made federal judges (and initially federal
district court judges) "the primary and powerful reliances for
vindicating every right given by the Constitution, the laws, and
treaties of the United States." Zwickler v. Koota, 389 U. S. 241 , 389 U. S. 247 (1967).

															If proof of the necessity of the federal habeas jurisdiction
were required, the disposition by the state courts of the
underlying Fourth Amendment issues presented by these cases
supplies it. In No. 74-1055, respondent was arrested pursuant to a
statute which obviously is unconstitutional under Papachristou
v. City of Jacksonville, 405 U. S. 156 (1972). Even apart from its vagueness and concomitant potential for
arbitrary and discriminatory enforcement, the statute purports to
criminalize the presence of one unable to account for his presence
in a situation where a reasonable person might believe that
public Page 428 U. S. 531 safety demands identification. See ante at 428 U. S. 469 n. 1. It is no crime in a free society not to have "identification
papers" on one's person, and the statute is a palpable effort to
enable police to arrest individuals on the basis of mere suspicion
and to facilitate detention even when there is no probable cause to
believe a crime has been or is likely to be committed. See 405 U.S. at 405 U. S.
168 -170. Without elaborating on the various arguments
buttressing this result, including the self-incrimination aspects
of the ordinance and its attempt to circumvent Fourth Amendment
safeguards in a situation that, under Terry v. Ohio, 392 U. S. 1 (1968),
would, at most, permit law enforcement officials to conduct a
protective search for weapons, I would note only that the
ordinance, due to the Court's failure to address its
constitutionality today, remains in full force and effect, thereby
affirmatively encouraging further Fourth Amendment violations.
Moreover, the fact that only a single state judge ever addressed
the validity of the ordinance, and the lack of record evidence as
to why or how he rejected respondent's claim, gives me pause as to
whether there is any real content to the Court's "exception" for
bringing Fourth Amendment claims on habeas in situations in which
state prisoners were not accorded an opportunity for a full and
fair state court resolution of those claims; that fact also makes
irrelevant the Court's presumption that deterrence is not furthered
when there is federal habeas review of a search and seizure claim
that was erroneously rejected by "two or more tiers of state
courts." Ante at 428 U. S.
491 .

															Even more violative of constitutional safeguards is the manner
in which the Nebraska courts dealt with the merits in respondent
Rice's case. Indeed, the manner in which Fourth Amendment
principles were applied in the Nebraska Supreme Court is
paradigmatic of Congress' Page 428 U. S. 532 concern respecting attempts by state courts to structure Fourth
Amendment jurisprudence so as not to upset convictions of the
"guilty" or the "unworthy." As Judge Urbom fully detailed in two
thorough and thoughtful opinions in the District Court on Rice's
petition for habeas, the affidavit upon which the Omaha police
obtained a warrant and thereby searched Rice's apartment was
clearly deficient under prevailing constitutional standards, and no
extant exception to the warrant requirement justified the search
absent a valid warrant. Yet the Nebraska Supreme Court upheld the
search on the alternative and patently untenable ground that there
is no Fourth Amendment violation if a defective warrant is
supplemented at a suppression hearing by facts that
theoretically could have been, but were not, presented to the
issuing magistrate. Such a construction of the Fourth Amendment
would obviously abrogate the warrant requirement of the Fourth
Amendment and the principle that its

															"protection consists in requiring that those inferences [as to
whether the data available justify an intrusion upon a person's
privacy] be drawn by a neutral and detached magistrate, instead of
being judged by the officer engaged in the often competitive
enterprise of ferreting out crime." Johnson v. United States, 333 U. S.
10 , 333 U. S. 14 (1948). Yet the Court today, by refusing to reaffirm our
precedents, see ante at 428 U. S. 473 n. 3, even casts some doubt on that heretofore unquestioned precept
of Fourth Amendment jurisprudence that

															"an otherwise insufficient affidavit cannot be rehabilitated by
testimony concerning information possessed by the affiant when he
sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U. S. 108 , 378 U. S.
109 n. 1. A contrary rule would, of course, render the
warrant requirements of the Fourth Amendment meaningless." Whiteley v. Warden, 401 U.S. at 401 U. S.
565 Page 428 U. S. 533 n. 8. Of course, for the Court strongly to reiterate the
fundamentality of this principle would only highlight the Nebraska
Supreme Court's distortion of the Fourth Amendment in an
emotionally charged case, and thereby accentuate the general
potential for erroneous state court adjudication of Fourth
Amendment claims. [ Footnote
2/20 ] III Other aspects of today's decision are deserving of comment, but
one particularly merits special attention. For the Court's failure
to limit today's ruling to prospective application stands in sharp
contrast to recent cases that have so limited decisions expanding
or affirming constitutional rights. Respondents, relying on the
explicit holding of Fay v. Noia, 372 U.
S. 391 (1963), that a petition for a writ of certiorari
is not a necessary predicate for federal habeas relief, and
accepting at face value the clear import of our prior habeas cases
that all unconstitutional confinements may be challenged on federal
habeas, contend that any new restriction on state prisoners'
ability to obtain habeas relief should be held to be prospective
only. The Court, however, dismisses respondents' effective
inability to have a single federal court pass on their federal
constitutional claims with the offhand remark that "respondents
were, of course, free to file a timely petition for certiorari
prior to seeking federal habeas corpus relief." Ante at 428 U. S. 495 n. 38. To be sure, the fact that the time limits for invoking our
certiorari jurisdiction with respect to criminal cases emanating
from state courts are Page 428 U. S. 534 non -jurisdictional would dictate that respondents are
at least free to file out-of-time certiorari petitions; under the
Court's "direct review" distinction delineated today, we would
still have authority to address the substance of respondents'
eminently and concededly meritorious Fourth Amendment claims. Of
course, federal review by certiorari in this Court is a matter of
grace, and it is grace now seldom bestowed at the behest of a
criminal defendant. I have little confidence that three others of
the Brethren would join in voting to grant such petitions, thereby
reinforcing the notorious fact that our certiorari jurisdiction is
inadequate for containing state criminal proceedings within
constitutional bounds, and underscoring Congress' wisdom in
mandating a broad federal habeas jurisdiction for the district
courts. In any event, since we are fully familiar with the records
in these cases, respondents are owed at least review in this Court,
particularly since it shuts the doors of the district courts in a
decision that marks such a stark break with out precedents on the
scope of habeas relief; indeed, if the Court were at all disposed
to safeguard constitutional rights and educate state and federal
judges concerning the contours of Fourth Amendment jurisprudence in
various situations, it would decide these cases on the merits,
rather than employ a procedural ruse that ensures respondents'
continued unconstitutional confinement. IV In summary, while, unlike the Court, I consider that the
exclusionary rule is a constitutional ingredient of the Fourth
Amendment, any modification of that rule should at least be
accomplished with some modicum of logic and justification not
provided today. See, e.g., Dershowitz & Ely, Harris v. New York: Some Anxious Observations Page 428 U. S. 535 on the Candor and Logic of the Emerging Nixon Majority, 80 Yale
L.J. 1198 (1971). The Court does not disturb the holding of Mapp v. Ohio that, as a, matter of federal constitutional
law, illegally obtained evidence must be excluded from the trial of
a criminal defendant whose rights were transgressed during the
search that resulted in acquisition of the evidence. In light of
that constitutional rule it is a matter for Congress, not this
Court, to prescribe what federal courts are to review state
prisoners' claims of constitutional error committed by state
courts. Until this decision, our cases have never departed from the
construction of the habeas statutes as embodying a congressional
intent that, however substantive constitutional rights are
delineated or expanded, those rights may be asserted as a
procedural matter under federal habeas jurisdiction. Employing the
transparent tactic that today's is a decision construing the
Constitution, the Court usurps the authority -- vested by the
Constitution in the Congress -- to reassign federal judicial
responsibility for reviewing state prisoners' claims of failure of
state courts to redress violations of their Fourth Amendment
rights. Our jurisdiction is eminently unsuited for that task, and,
as a practical matter, the only result of today's holding will be
that denials by the state courts of claims by state prisoners of
violations of their Fourth Amendment rights will go unreviewed by a
federal tribunal. I fear that the same treatment ultimately will be
accorded state prisoners' claims of violations of other
constitutional rights; thus, the potential ramifications of this
case for federal habeas jurisdiction generally are ominous. The
Court, no longer content just to restrict forthrightly the
constitutional rights of the citizenry, has embarked on a campaign
to water down even such constitutional rights as it purports to
acknowledge Page 428 U. S. 536 by the device of foreclosing resort to the federal habeas remedy
for their redress.

															I would affirm the judgments of the Courts of Appeals.

															[ Footnote 2/1 ]

															I say "ostensibly" secured both because it is clear that the
Court has yet to make its final frontal assault on the exclusionary
rule, and because the Court has recently moved in the direction of
holding that the Fourth Amendment has no substantive content
whatsoever. See, e.g., United States v. Martinez-Fuerte,
post at 428 U. S.
567 -569 (BRENNAN, J., dissenting), and cases cited
therein.

															[ Footnote 2/2 ]

															Title 28 U.S.C. § 2254 provides:

															"§ 2254. State custody; remedies in State courts."

															"(a) The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of
a State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."

															"(b) An application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has exhausted
the remedies available in the courts of the State, or that there is
either an absence of available State corrective process or the
existence of circumstances rendering such process ineffective to
protect the rights of the prisoner."

															"(c) An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the meaning
of this section, if he has the right under the law of the State to
raise, by any available procedure, the question presented."

															"(d) In any proceeding instituted in a Federal court by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination after a
hearing on the merits of a factual issue, made by a State court of
competent jurisdiction in a proceeding to which the applicant for
the writ and the State or an officer or agent thereof were parties,
evidenced by a written finding written opinion, or other reliable
and adequate written indicia, shall be presumed to be correct,
unless the applicant shall establish or it shall otherwise appear,
or the respondent shall admit -- "

															"(1) that the merits of the factual dispute were not resolved in
the State court hearing;"

															"(2) that the factfinding procedure employed by the State court
was not adequate to afford a full and fair hearing;"

															"(3) that the material facts were not adequately developed at
the State court hearing;"

															"(4) that the State court lacked jurisdiction of the subject
matter or over the person of the applicant in the State court
proceeding;"

															"(5) that the applicant was an indigent and the State court, in
deprivation of his constitutional right, failed to appoint counsel
to represent him in the State court proceeding;"

															"(6) that the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding; or"

															"(7) that the applicant was otherwise denied due process of law
in the State court proceeding;"

															"(8) or unless that part of the record of the State court
proceeding in which the determination of such factual issue was
made, pertinent to a determination of the sufficiency of the
evidence to support such factual determination, is produced as
provided for hereinafter, and the Federal court on a consideration
of such part of the record as a whole concludes that such factual
determination is not fairly supported by the record:"

															"And in an evidentiary hearing in the proceeding in the Federal
court, when due proof of such factual determination has been made,
unless the existence of one or more of the circumstances
respectively set forth in paragraphs numbered(1) to (7), inclusive,
is shown by the applicant, otherwise appears, or is admitted by the
respondent, or unless the court concludes pursuant to the
provisions of paragraph numbered (8) that the record in the State
court proceeding, considered as a whole, does not fairly support
such factual determination, the burden shall rest upon the
applicant to establish by convincing evidence that the factual
determination by the State court was erroneous."

															"(e) If the applicant challenges the sufficiency of the evidence
adduced in such State court proceeding to support the State court's
determination of a factual issue made therein, the applicant, if
able, shall produce that part of the record pertinent to a
determination of the sufficiency of the evidence to support such
determination. If the applicant, because of indigency or other
reason is unable to produce such part of the record, then the State
shall produce such part of the record and the Federal court shall
direct the State to do so by order directed to an appropriate State
official. If the State cannot provide such pertinent part of the
record, then the court shall determine under the existing facts and
circumstances what weight shall be given to the State court's
factual determination."

															"(f) A copy of the official records of the State court, duly
certified by the clerk of such court to be a true and correct copy
of a finding, judicial opinion, or other reliable written indicia
showing such a factual determination by the State court shall be
admissible in the Federal court proceeding."

															[ Footnote 2/3 ]

															Title 28 U.S.C. § 2243 provides:

															"§ 2243. Issuance of writ; return; hearing; decision."

															"A court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue an
order directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that the
applicant or person detained is not entitled thereto."

															"The writ, or order to show cause shall be directed to the
person having custody of the person detained. It shall be returned
within three days unless for good cause additional time, not
exceeding twenty days, is allowed."

															"The person to whom the writ or order is directed shall make a
return certifying the true cause of the detention."

															"When the writ or order is returned a day shall be set for
hearing, not more than five days after the return unless for good
cause additional time is allowed."

															"Unless the application for the writ and the return present only
issues of law the person to whom the writ is directed shall be
required to produce at the hearing the body of the person
detained."

															"The applicant or the person detained may, under oath, deny any
of the facts set forth in the return or allege any other material
facts."

															"The return and all suggestions made against it may be amended,
by leave of court, before or after being filed."

															"The court shall summarily hear and determine the facts, and
dispose of the matter as law and justice require."

															[ Footnote 2/4 ] See also, e.g., ante at 428 U. S. 486 ("The decision in Kaufman [v. United States, 394 U.
S. 217 (1969),] is premised on the view that
implementation of the Fourth Amendment also requires the
consideration of search and seizure claims upon collateral review
of state convictions"); ante at 428 U. S. 489 ("The answer [to the question whether Fourth Amendment claims may
be raised by state prisoners in federal habeas corpus proceedings]
is to be found by weighing the utility of the exclusionary rule
against the costs of extending it to collateral review of Fourth
Amendment claims"); ante at 428 U. S. 493 ("[T]he additional contribution, if any, of the consideration of
search and seizure claims of state prisoners on collateral review
is small in relation to the costs. . . . The view that the
deterrence of Fourth Amendment violations would be furthered rests
on the dubious assumption that law enforcement authorities would
fear that federal habeas review might reveal flaws in a search or
seizure that went undetected at trial and on appeal"); ante at 428 U. S.
494 -495 ("In this context, the contribution of the
exclusionary rule, if any, to the effectuation of the Fourth
Amendment is minimal, and the substantial societal costs of
application of the rule persist with special force").

															[ Footnote 2/5 ]

															To the extent the Court is rendering a constitutional holding,
there is obviously no distinction between claims brought by state
prisoners under 28 U.S.C. 2254 and those brought by federal
prisoners under 28 U.S.C. § 2255. Thus, the Court overrules not
only a long line of cases concerning availability of habeas relief
for state prisoners, but also a similarly inveterate line of cases
concerning availability of counterpart § 2255 relief for federal
prisoners.

															[ Footnote 2/6 ]

															Mr. Justice Black, dissenting in Kaufman v. United
States, 394 U. S. 217 (1969), argued that, in light of his view of the purposes of the
exclusionary rule, Fourth Amendment claims should not, as a matter
of statutory construction, be cognizable on federal habeas.
However, he never made the suggestion, apparently embraced by the
Court today, that such claims cannot, as a constitutional matter,
be entertained on habeas jurisdiction, even though Congress
fashioned that jurisdiction at least in part to compensate for the
inadequacies inherent in our certiorari jurisdiction on direct
review. Cf. ante at 428 U. S. 481 n. 15, and 428 U. S. 490 .
Indeed, Kaufman did not ignore the dissenting Justices'
arguments; rather, it noted that habeas jurisdiction, apart from
any effect on police behavior, serves the independent function of
"insur[ing] the integrity of proceedings at and before trial where
constitutional rights are at stake." 394 U.S. at 394 U. S. 225 . See also infra at 428 U. S. 519 -522. As to the argument that our prior
cases do not resolve the issue decided today because "only in the
most exceptional cases will we consider issues not raised in the
petition," see ante at 428 U. S. 481 n. 15, that claim is only valid to the extent the issue is one of
construing congressional intent as to when, with respect to cases
properly within the district court's power to grant relief, habeas
relief should nevertheless be denied as a matter of discretion.
But, to the extent a person against whom unconstitutionally seized
evidence was admitted at trial after a full and fair hearing is not
"in custody in violation of the Constitution," there would be no
jurisdiction even to entertain a habeas petition, see 428
U.S. 465 fn2/2|>n. 2, supra, and such subject matter
jurisdiction questions are always open -- and must be resolved --
at any stage of federal litigation. See, e.g., Louisville &
Nashville R. Co. v. Mottley, 211 U. S. 149 (1908); Fed.Rule Civ.Proc. 12(h). It borders on the incredible to
suggest that so many Justices for so long merely "assumed" the
answer to such a basic jurisdictional question.

															[ Footnote 2/7 ] See also 414 U.S. at 414 U. S. 351 ,
noting "inadmissibility of the illegally seized evidence in a
subsequent criminal prosecution of the search victim."

															[ Footnote 2/8 ]

															Only once does the Court advert to any temporal distinction
between direct review and collateral review as a possible reason
for precluding the raising of Fourth Amendment claims during the
former, and not during the latter, proceedings. See ante at 428 U. S. 493 (arguing that deterrence would not be "enhanced" by the risk "that
a conviction obtained in state court and affirmed on direct review
might be overturned in collateral proceedings often occurring years
after the incarceration of the defendant"). Of course, it is
difficult to see how the Court could constitutionalize any such
asserted temporal distinctions, particularly in light of the
differential speed with which criminal cases proceed even on direct
appeal.

															[ Footnote 2/9 ]

															It is unnecessary here to expand upon my reasons for
disagreement, which are stated fully in my dissents in United
States v. Calandra, 414 U.S. at 414 U. S.
355 -367, and United States v. Peltier, 422 U. S. 531 , 422 U. S.
550 -562 (1975).

															[ Footnote 2/10 ]

															The failure to confront this fact forthrightly is obviously a
core defect in the Court's analysis. For to the extent Congress has
accorded the federal district courts a role in our constitutional
scheme functionally equivalent to that of the Supreme Court with
respect to review of state court resolutions of federal
constitutional claims, it is evident that the Court's
direct/collateral review distinction for constitutional purposes
simply collapses. Indeed, logically extended, the Court's analysis,
which basically turns on the fact that law enforcement officials
cannot anticipate a second court's finding constitutional errors
after one court has fully and fairly adjudicated the claim and
found it to be meritless, would preclude any Supreme Court review
on direct appeal, or even state appellate review if the trial court
fairly addressed the Fourth Amendment claim on the merits. The
proposition is certainly frivolous if Mapp is
constitutionally grounded; yet such is the essential thrust of the
Court's view that the unconstitutional admission of evidence is
tolerable merely because police official.s cannot be deterred from
unconstitutional conduct by the possibility that a favorable
"admission" decision would be followed by an unfavorable
"exclusion" decision.

															The Court's arguments respecting the cost/benefit analysis of
applying the exclusionary rule on collateral attack also have no
merit. For all of the "costs" of applying the exclusionary rule on
habeas should already have been incurred at the trial or
on direct review if the state court had not misapplied federal
constitutional principles. As such, these "costs" were evaluated
and deemed to be outweighed when the exclusionary rule was
fashioned. The only proper question on habeas is whether federal
courts, acting under congressional directive to have the last say
as to enforcement of federal constitutional principles, are to
permit the States free enjoyment of the fruits of a conviction
which by definition were only obtained through violations of the
Constitution as interpreted in Mapp. And as to the
question whether any "educative" function is served by such habeas
review, see ante at 428 U. S. 493 ,
today's decision will certainly provide a lesson that, tragically
for an individual's constitutional rights, will not be lost on
state courts. See infra at 428 U. S.
530 -533.

															Another line of analysis exposes the fallacy of treating today's
holding as a constitutional decision. Constitutionally, no barrier
precludes a state defendant from immediately seeking a federal
court's injunction against any state use of unconstitutionally
seized evidence against him at trial. However, equitable principles
have operated to foreclose cutting short the normal initial adjudication of such constitutional defenses in
the course of a criminal prosecution, Dombrowski v.
Pfister, 380 U. S. 479 , 380 U. S. 485 n. 3 (1965), subject to ultimate federal review either on direct
review or collaterally through habeas. See also, e.g., Younger
v. Harris, 401 U. S. 37 (1971). Moreover, considerations of comity, now statutorily
codified as the exhaustion requirement of § 2254, and not lack of
power, dictate that federal habeas review be delayed pending the
initial state court determination. But delay only was the
price,

															"else a rule of timing would become a rule circumscribing the
power of the federal courts on habeas, in defiance of unmistakable
congressional intent." Fay v. Noia, 372 U. S. 391 , 372 U. S. 420 (1963); see id. at 372 U. S.
417 -426. The Court today, however, converts this
doctrine dictating the timing of federal review into a doctrine
precluding federal review, see Francis v. Henderson, 425 U. S. 536 , 425 U. S. 542 (1976) (BRENNAN, J., dissenting); such action is in keeping with
the regrettable recent trend of barring the federal courthouse door
to individuals with meritorious claims. See, e.g., Warth v.
Seldin, 422 U. S. 490 (1975); Rizzo v. Goode, 423 U. S. 362 (1976); Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 (1976). Although the federal courts could have been the forum for
the initial "opportunity for a full and fair hearing" of Fourth
Amendment claims of state prisoners that the Court finds
constitutionally sufficient, nonconstitutional concerns dictated
temporary abstention; but having so abstained, federal courts are
now ousted by this Court from ever determining the claims, since
the courts to which they initially deferred are all that this Court
deems necessary for protecting rights essential to preservation of
the Fourth Amendment. Such hostility to federal jurisdiction to
redress violations of rights secured by the Federal Constitution,
despite congressional conferral of that jurisdiction, is profoundly
disturbing.

															[ Footnote 2/11 ]

															In arguing in the Court's "deterrence" idiom, I emphasize that I
am accepting the Court's assumptions concerning the purposes of the
exclusionary rule only to demonstrate that, on its own premises,
today's decision is unsupportable.

															[ Footnote 2/12 ]

															For proof that my fears concerning the precedential use to which
today's opinion will be put are not groundless, see, e.g.,
Francis v. Henderson, 425 U. S. 536 (1976), and Estelle v. Williams, 425 U.
S. 501 (1976), which illustrate the Court's willingness
to construe the habeas statutes so as to cabin the scope of habeas
relief for criminal defendants.

															[ Footnote 2/13 ]

															Others might be claims of official surveillance of
attorney-client communications, government acquisition of evidence
through unconscionable means, see, e.g., Rochin v.
California, 342 U. S. 165 (1952), denial of the right to a speedy trial, government
administration of a "truth serum," see Townsend v. Sain, 372 U. S. 293 (1963), denial of the right to jury trial, see Ludwig v.
Massachusetts, 427 U. S. 618 , 427 U. S. 627 n. 3 (1976), or the obtaining of convictions under statutes that
contravene First Amendment rights when a properly drawn statute
could have been applied to the particular defendant's conduct.

															[ Footnote 2/14 ]

															The overruling of Lefkowitz v. Newsome, decided only
last Term, is particularly ironic. That case held that a state
defendant could file a federal habeas corpus petition asserting
Fourth Amendment claims, despite a subsequent guilty plea, when the
State provided for appellate review of those claims. Three Justices
dissented, and would have held, as a statutory matter, that Fourth
Amendment claims are not cognizable on federal habeas, but none
suggested the "constitutional" thesis embraced by the Court as the
ostensible ratio decidendi for today's cases.

															Although the Court does not expressly overrule Kaufman v.
United States, 394 U. S. 217 (1969), and its progeny involving collateral review of Fourth
Amendment claims of federal prisoners (indeed, the Court
accomplishes today's results without expressly overruling or
distinguishing any of our diametrically contrary precedents), Kaufman obviously does not survive. This tactic has become
familiar in earlier decisions this Term. See, e.g., Hudgens v.
NLRB, 424 U. S. 507 (1976); Francis v. Henderson, 425 U.
S. 536 (1976); Greer v. Spock, 424 U.
S. 828 (1976).

															[ Footnote 2/15 ]

															My Brother WHITE's hypothesis of two confederates in crime, see post at 428 U. S.
536 -537, fully demonstrates the type of discrimination
that Congress clearly sought to avoid if, out of the full universe
of constitutional rights, certain rights could be vindicated only
by resort to this Court's certiorari jurisdiction.

															[ Footnote 2/16 ]

															The Court also notes that "attention . . . [is] diverted" when
trial courts address exclusionary rule issues, ante at 428 U. S. 490 ,
and with the result that application of the rule "often frees the
guilty." Ibid. Of course, these "arguments" are true with
respect to every constitutional guarantee governing administration
of the criminal justice system.

															[ Footnote 2/17 ]

															"Experience should teach us to be most on our guard to protect
liberty when the Government's purposes are beneficent. Men born to
freedom are naturally alert to repel invasion of their liberty by
evil-minded rulers. The greatest dangers to liberty lurk in
insidious encroachment by men of zeal, well meaning but without
understanding." Olmstead v. United States, 277 U.
S. 438 , 277 U. S. 479 (1928) (Brandeis, J., dissenting). See also id. at 277 U. S. 483 , 277 U. S.
485 .

															"We are duly mindful of the reliance that society must place for
achieving law and order upon the enforcing agencies of the criminal
law. But insistence on observance by law officers of traditional
fair procedural requirements is, from the long point of view, best
calculated to contribute to that end. However much in a particular
case insistence upon such rules may appear as a technicality that
inures to the benefit of a guilty person, the history of the
criminal law proves that tolerance of short-cut methods in law
enforcement impairs its enduring effectiveness." Miller v. United States, 357 U.
S. 301 , 357 U. S. 313 (1958). See also Boyd v. United States, 116 U.
S. 616 , 116 U. S. 635 (1886); Weeks v. United States, 232 U.
S. 383 , 232 U. S.
392 -394 (1914)

															The Court asserts that "the hyperbole of the dissenting opinion
is misdirected," ante at 428 U. S. 495 n. 37, but I take seriously this Court's continuing incursions on
constitutionally guaranteed rights.

															"[I]llegitimate and unconstitutional practices get their first
footing in that way, namely, by silent approaches and slight
deviations from legal modes of procedure. . . . It is the duty of
courts to be watchful for the constitutional rights of the citizen,
and against any stealthy encroachments thereon." Boyd v. United States, supra at 116 U. S.
635 .

															[ Footnote 2/18 ]

															These considerations were powerfully articulated in Brown v.
Allen, 344 U. S. 443 , 344 U. S.
491 -494 (1953) (opinion of Frankfurter, J.). Cf.
also Fay v. Noia, 372 U.S. at 372 U. S.
432 -433; England v. Louisiana State Board of Medical
Examiners, 375 U. S. 411 , 375 U. S.
415 -417 (1964).

															[ Footnote 2/19 ] See Brown v. Allen, 344 U.S. at 344 U. S.
497 -499 (opinion of Frankfurter, J.). "The meritorious
claims are few, but our procedures must ensure that those few
claims are not stifled by undiscriminating generalities." Id. at 344 U. S.
498 .

															[ Footnote 2/20 ]

															The Nebraska Supreme Court fell into patent error in citing Whiteley for the proposition that "the affidavit may be
supplemented by testimony of additional evidence known to the
police." State v. Rice, 188 Neb. 728, 739, 199 N.W.2d
480 , 488 (1972).

															MR. JUSTICE WHITE, dissenting.

															For many of the reasons stated by MR. JUSTICE BRENNAN, I cannot
agree that the writ of habeas corpus should be any less available
to those convicted of state crimes where they allege Fourth
Amendment violations than where other constitutional issues are
presented to the federal court. Under the amendments to the habeas
corpus statute, which were adopted after Fay v. Noia, 372 U. S. 391 (1963), and represented an effort by Congress to lend a modicum of
finality to state criminal judgments, I cannot distinguish between
Fourth Amendment and other constitutional issues.

															Suppose, for example, that two confederates in crime, Smith and
Jones, are tried separately for a state crime and convicted on the
very same evidence, including evidence seized incident to their
arrest allegedly made without probable cause. Their constitutional
claims are fully aired, rejected, and preserved on appeal. Their
convictions are affirmed by the State's highest court. Smith, the
first to be tried, does not petition for certiorari, or does so,
but his petition is denied. Jones, whose conviction was
considerably later, is more successful. His petition for certiorari
is granted and his conviction reversed because this Court, without
making any new rule of law, simply concludes that, on the
undisputed facts, the arrests were made without probable cause and
the challenged evidence was therefore seized in violation of the
Fourth Amendment. The State must either retry Jones or release him,
necessarily because he is deemed in custody in violation of the
Constitution. It turns out that, without the evidence illegally
seized, the State has no case; Page 428 U. S. 537 and Jones goes free. Smith then files his petition for habeas
corpus. He makes no claim that he did not have a full and fair
hearing in the state courts, but asserts that his Fourth Amendment
claim had been erroneously decided, and that he is being held in
violation of the Federal Constitution. He cites this Court's
decision in Jones' case to satisfy any burden placed on him by §
2254 to demonstrate that the state court was in error. Unless the
Court's reservation, in its present opinion, of those situations
where the defendant has not had a full and fair hearing in the
state courts is intended to encompass all those circumstances under
which a state criminal judgment may be reexamined under § 2254 --
in which event the opinion is essentially meaningless and the
judgment erroneous -- Smith's petition would be dismissed, and he
would spend his life in prison while his colleague is a free man. I
cannot believe that Congress intended this result.

															Under the present habeas corpus statute, neither Rice's nor
Powell's application for habeas corpus should be dismissed on the
grounds now stated by the Court. I would affirm the judgments of
the Courts of Appeals as being acceptable applications of the
exclusionary rule applicable in state criminal trials by virtue of Mapp v. Ohio, 367 U. S. 643 (1961).

															I feel constrained to say, however, that I would join four or
more other Justices in substantially limiting the reach of the
exclusionary rule as presently administered under the Fourth
Amendment in federal and state criminal trials.

															Whether I would have joined the Court's opinion in Mapp v.
Ohio, supra, had I then been a Member of the Court, I do not
know. But, as time went on after coming to this bench, I became
convinced that both Page 428 U. S. 538 Weeks v. United States, 232 U.
S. 383 (1914), and Mapp v. Ohio had overshot
their mark insofar as they aimed to deter lawless action by law
enforcement personnel, and that, in many of its applications, the
exclusionary rule was not advancing that aim in the slightest, and
that, in this respect, it was a senseless obstacle to arriving at
the truth in many criminal trials.

															The rule has been much criticized, and suggestions have been
made that it should be wholly abolished, but I would overrule
neither Weeks v. United States nor Mapp v. Ohio. I am nevertheless of the view that the rule should be substantially
modified so as to prevent its application in those many
circumstances where the evidence at issue was seized by an officer
acting in the good faith belief that his conduct comported with
existing law and having reasonable grounds for this belief. These
are recurring situations, and, recurringly, evidence is excluded
without any realistic expectation that its exclusion will
contribute in the slightest to the purposes of the rule, even
though the trial will be seriously affected or the indictment
dismissed.

															An officer sworn to uphold the law and to apprehend those who
break it inevitably must make judgments regarding probable cause to
arrest: is there reasonable ground to believe that a crime has been
committed and that a particular suspect has committed it?
Sometimes, the historical facts are disputed, or are otherwise in
doubt. In other situations, the facts may be clear, so far as they
are known, yet the question of probable cause remains. In still
others, there are special worries about the reliability of
second-hand information such as that coming from informants. In any
of these situations, which occur repeatedly, when the officer is
convinced that he has probable cause to arrest he will very Page 428 U. S. 539 likely make the arrest. Except in emergencies, it is probable
that his colleagues or superiors will participate in the decision,
and it may be that the officer will secure a warrant, although
warrantless arrests on probable cause are not forbidden by the
Constitution or by state law. Making the arrest in such
circumstances is precisely what the community expects the police
officer to do. Neither officers nor judges issuing arrest warrants
need delay apprehension of the suspect until unquestioned proof
against him has accumulated. The officer may be shirking his duty
if he does so.

															In most of these situations, it is hoped that the officer's
judgment will be correct; but experience tells us that there will
be those occasions where the trial or appellate court will disagree
on the issue of probable cause, no matter how reasonable the
grounds for arrest appeared to the officer and though reasonable
men could easily differ on the question. It also happens that,
after the events at issue have occurred, the law may change,
dramatically or ever so slightly, but, in any event, sufficiently
to require the trial judge to hold that there was not probable
cause to make the arrest and to seize the evidence offered by the
prosecution. It may also be, as in the Powell case now
before us, that there is probable cause to make an arrest under a
particular criminal statute, but, when evidence seized incident to
the arrest is offered in support of still another criminal charge,
the statute under which the arrest and seizure were made is
declared unconstitutional, and the evidence ruled inadmissible
under the exclusionary rule as presently administered.

															In these situations, and perhaps many others, excluding the
evidence will not further the ends of the exclusionary rule in any
appreciable way; for it is painfully apparent that, in each of
them, the officer is acting as a Page 428 U. S. 540 reasonable officer would, and should act in similar
circumstances. Excluding the evidence can in no way affect his
future conduct unless it is to make him less willing to do his
duty. It is true that, in such cases, the courts have ultimately
determined that, in their view, the officer was mistaken; but it is
also true that, in making constitutional judgments under the
general language used in some parts of our Constitution, including
the Fourth Amendment, there is much room for disagreement among
judges, each of whom is convinced that both he and his colleagues
are reasonable men. Surely when this Court divides five to four on
issues of probable cause, it is not tenable to conclude that the
officer was at fault or acted unreasonably in making the
arrest.

															When law enforcement personnel have acted mistakenly, but in
good faith and on reasonable grounds, and yet the evidence they
have seized is later excluded, the exclusion can have no deterrent
effect. The officers, if they do their duty, will act in similar
fashion in similar circumstances in the future; and the only
consequence of the rule as presently administered is that
unimpeachable and probative evidence is kept from the trier of
fact, and the truthfinding function of proceedings is substantially
impaired, or a trial totally aborted. Admitting the evidence in
such circumstances does not render judges participants in Fourth
Amendment violations. The violation, if there was one, has already
occurred, and the evidence is at hand. Furthermore, there has been
only mistaken, but unintentional and faultless, conduct by
enforcement officers. Exclusion of the evidence does not cure the
invasion of the defendant's rights, which he has already suffered.
Where an arrest has been made on probable cause, but the defendant
is acquitted, under federal law, the defendant has no right to
damages simply because his innocence has been Page 428 U. S. 541 proved.

															"A policeman's lot is not so unhappy that he must choose between
being charged with dereliction of duty if he does not arrest when
he has probable cause, and being mulcted in damages if he
does." Pierson v. Ray, 386 U. S. 547 , 386 U. S. 555 (1967). The officer is also excused from liability for "acting
under a statute that he reasonably believed to be valid, but that
was later held unconstitutional, on its face or as applied." Ibid. There is little doubt that, as far as civil
liability is concerned, the rule is the same under federal law
where the officer mistakenly but reasonably believes he has
probable cause for an arrest. In Scheuer v. Rhodes, 416 U. S. 232 (1974), the Court announced generally that officers of the
executive branch of the government should be immune from liability
where their action is reasonable "in light of all the
circumstances, coupled with good faith belief." Id. at 416 U. S.
247 -248. The Court went on to say:

															"Public officials, whether governors, mayors or police,
legislators or judges, who fail to make decisions when they are
needed or who do not act to implement decisions when they are made
do not fully and faithfully perform the duties of their offices.
Implicit in the idea that officials have some immunity -- absolute
or qualified -- for their acts is a recognition that they may err.
The concept of immunity assumes this, and goes on to assume that it
is better to risk some error and possible injury from such error
than not to decide or act at all." Id. at 416 U. S.
241 -242 (footnote omitted). The Court has proceeded on
this same basis in other contexts. O'Connor v. Donaldson, 422 U. S. 563 (1975); Wood v. Strickland, 420 U.
S. 308 (1975).

															If the defendant in criminal cases may not recover for a
mistaken but good faith invasion of his privacy, it Page 428 U. S. 542 makes even less sense to exclude the evidence solely on his
behalf. He is not at all recompensed for the invasion by merely
getting his property back. It is often contraband and stolen
property to which he is not entitled in any event. He has been
charged with crime, and is seeking to have probative evidence
against him excluded, although often it is the instrumentality of
the crime. There is very little equity in the defendant's side in
these circumstances. The exclusionary rule, a judicial construct,
seriously shortchanges the public interest as presently applied. I
would modify it accordingly.