Linkletter v. Walker

PETITIONER:Linkletter
RESPONDENT:Walker
LOCATION:United States District Court for the Eastern District of Louisiana

DOCKET NO.: 95
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 381 US 618 (1965)
ARGUED: Mar 11, 1965
DECIDED: Jun 07, 1965

Facts of the case

Victor Linkletter was convicted in state court on evidence illegally obtained by police prior to the Supreme Court decision concerning the Fourth Amendment in Mapp v. Ohio. Mapp applied the exclusionary rule to state criminal proceedings, denying the use of illegally obtained evidence at trial. Linkletter argued for a retrial based on the Mapp decision.

Question

Did the exclusionary rule established in Mapp v. Ohio apply retroactively?

Earl Warren:

Number 95 Victor Linkletter versus Victor G. Walker, Warden.

Mr. Screws.

Euel A. Screws, Jr.:

Mr. Chief Justice and may it please the Court.

On August of 24th 1958, approximately 15 months after the illegal seizure, searches and seizure in the Mapp versus Ohio, petitioner was subjected to a series of illegal searches and seizures involving his home, his person and his place of business.

I believe that the State of Louisiana admits that these seizures were unconstitutional under the Fourth and Fifth Amendments.

Three weeks after these searches, he was charged with the crime which was wholly unrelated to the original search.

He was convicted of this crime of burglary and sentenced to nine years in prison.

After his, the case of Mapp versus Ohio, the petitioner began a series of pro se habeas corpus petitions which finally ended in the opinion of the Fifth Circuit below.

I believe that the State of Louisiana has conceded that he has exhausted his advantages by the opinion below and the issue presented in the opinion below was whether or not the rule of Mapp versus Ohio should be applied retroactively to effect prisoners whose convictions became final prior to the date of Mapp versus Ohio.

Judge Reeves speaking for divided circuit hailed that Mapp would be applied prospectively and that the right not to be convicted on unconstitutionally seized evidence would not be accorded to Victor Linkletter because his conviction became final prior to the date of this Court’s decision in Mapp.

The opinion below was based perhaps on three premises.

First that the purpose of the Mapp decision is deterrence and deterrence of illegal police action and this purpose can only be served or is mostly served by a prospective application of Mapp.

The second premises of the Fifth Circuit’s decision was that orderly judicial administration requires a prospective as opposed to retrospective application.

And the third premise is that perhaps Mr. Linkletter and other prisoners who have been convicted on illegal seized evidence are in fact guilty and that the issue of fairness of the trial, that is the issue of guilt or innocence, his innocence is not before the Court and if this rule or constitutional right announced in Mapp should be given some sort of special treatment.

Now, we think that the opinion below is wrong on all three of these basic premises.

The circuits as this Court knows are split now 4 to 2, 4 holding that Mapp versus Ohio should be fully retroactive, I mean sorry, prospective application and two holding that the Mapp rule should be given retrospective application to all prisoners.

We think that —

Potter Stewart:

If there are some, there are some refinements on those two broad categories?

Euel A. Screws, Jr.:

Yes sir, there are some refinements, yes sir.

Basically the issues have been of cut and dry window I think as decided by perhaps —

Potter Stewart:

In other words some of the — is question whether or not on direct appeal or on the collateral attack and whether or not the actual search occurred before or after Mapp, the trial so on, but there have been refinements drawn by some of the courts.

Euel A. Screws, Jr.:

Yes sir.

This Court has drawn one refinement by affording Mapp to cases that had not been finally decided by occurrence in Stoner and Fay decisions I believe —

Potter Stewart:

Without any real discussion on it?

Euel A. Screws, Jr.:

Yes sir that’s right, procuring the (Inaudible).

We think that the fundamental personal right not to be convicted on unconstitutionally seized evidence is the rule of Mapp.

By emphasizing the purpose of deterrence, the Fifth Circuit has obliterated the rule itself.

Now, we concede that deterrence is perhaps a purpose or is a purpose.

This Court in Mapp state that the purpose of the exclusionary rule is to deter or to compel respect for the constitutional guarantee in the only effective available way by removing the (Inaudible) to disregard it as a quote from the Elkins decision, but this is not the sole and exclusive purpose of Mapp.

We submit that the rule of Mapp or the purposes of Mapp, other purposes are that this right not to be unconstitutionally convicted or convicted on unconstitutional evidence is reserved to all persons.

Euel A. Screws, Jr.:

This Court stated that it is reserved to all persons as a specific guarantee and that this right should be —

Potter Stewart:

Excuse me, it has nothing to do with — it has nothing to do with a fair trial as such, does it?

Euel A. Screws, Jr.:

I think.

Potter Stewart:

As contrasted to the rule of Gideon against Wainwright for instance because there is no question that this evidence is relevant material I believe had it been, had it been obtained properly would have been fairly admissible without violating his right to a fair trial in any way, isn’t that correct?

Euel A. Screws, Jr.:

Justice I’ve would hate to – no sir I don’t think so let me —

Potter Stewart:

Then tell me why please?

Euel A. Screws, Jr.:

The seizures and searches in the Mapp case and in the Linkletter case were items which were fully — the seizures were plenary.

Evidence was seized which was totally unrelated to the original search.

If there had been a constitutional seizure there would not have been a prosecution.

This right goes to the basis of the whole case.

Potter Stewart:

What was the evidence?

Euel A. Screws, Jr.:

The evidence in–

Potter Stewart:

That was introduced in this case.

Euel A. Screws, Jr.:

Oh!

It were the keys and clothing and personal paper and some perhaps contraband property involving a premises not related to the one in which he was under surveillance.

Potter Stewart:

Was it stolen property, was that it?

Euel A. Screws, Jr.:

Some was I think–

Potter Stewart:

Because I don’t have in it mind.

Euel A. Screws, Jr.:

It was contended to be stolen, the petitioner has never admitted it —

Potter Stewart:

No I am not asking to admit anything, but that was — the stuff that was admitted was allegedly stolen property?

Euel A. Screws, Jr.:

Some of it was, some of it was his personal papers, some notes, key rings, shoes, (Inaudible) torch, various, various items.

He was arrested originally for an alleged burglary occurring on one street.

He was charged with that crime.

The crime was dismissed, the charges were dismissed.

He was later, three weeks later charged with another wholly unrelated crime based on evidence seized and we think that this goes beyond the fundamental fairness of the trial.

This is something more base (Inaudible).

The same is true in Ms. Mapp.

She was — had been searched by — for some policy paper maybe and they found some lewd literature.

It was an instantly illegal search and she was convicted of possession of lewd literature.

So the — I think that I maybe not evading the question, but to me it seems like that the guilt or innocence argument is even stronger in this case.

Potter Stewart:

Well of course this court doesn’t sit here to determine guilt or innocence?

Euel A. Screws, Jr.:

But the fact of guilt or innocence I think should not enter into the decision of retrospective versus prospective application.

To quote other purposes of Mapp was that saying was that this right is reserved to all persons having as a specific guarantee.

The Court stated that this right if not – this Court would not allow this right to stand in marked contrast to other rights, declared as basic to a free society.

And I think that perspective limitation would make this right stand in Mapp contrast.

It would isolated from the rights set forth in Gideon decision, the Griffin and Jackson versus Denno.

These decisions have been applied retroactive by this Court.

We think that perspective limitation of Mapp would obliterate the rule of the right of Mapp by removing from Victor Linkletter this right.

It will make it stand in marked contrast.

I think we mentioned that — I had mentioned in the brief the utility or perhaps irony of arguing what this Court meant in Mapp versus Ohio, what we think that perhaps the intent of retroactive application was set forth in footnote nine of the Mapp decision where this Court stated that there are some who say, as did Justice Cardozo, the undoubted constitution exclusionary doctrine, that criminals to go free because the constable has blundered.

In some cases, this will undoubtedly be the result.

Footnote nine stating that, “We note, moreover, that the class of state convictions possibly affected by this decision is of relatively narrow compass when compared with Burns versus Ohio, Griffin versus Illinois, and Herman versus Claudy.

We think the Court had in mind in this footnote nine, the fact that Mapp would be given retroactive application.

Tom C. Clark:

In fact, mainly during the last [Inaudible]

Euel A. Screws, Jr.:

Sir.

Tom C. Clark:

In fact, when reading the last setup on footnote nine, [Inaudible]

Euel A. Screws, Jr.:

Yes sir, in those cases, the same contention was urged and later proved unbounded.

In any case, further delay in reaching the present resort would have no effect other than to compound the difficulties.

Certainly, Mr. Justice Harlan had retroactivity in mind in his discernment, dissenting opinion and later I believe in the (Inaudible) and his dissent in this case, he mentioned the retroactive implications of Mapp versus Ohio.

Tom C. Clark:

[Inaudible] as he has pointed out [Inaudible]

Euel A. Screws, Jr.:

Yes sir.

Tom C. Clark:

Have you read another article, [Inaudible] retroactive, retrospective and prospective by saying [Inaudible]

Euel A. Screws, Jr.:

Yes, and I think —

Tom C. Clark:

[Inaudible]

Euel A. Screws, Jr.:

I think it’s a very sound approach.

I think Professor Dan Miller at the University of Virginia had this in a very short law review article and his premises were based on, as I understand on the — in part on the present effect of the federal of the Habeas Corpus rule and that is that the present detention must be in violation of the Constitution.

And that the person must be presently detained and that the present detention must be judged on the present constitutional principles and I think it is very sound and I would like to call the Court’s attention to it.

[Inaudible]

Euel A. Screws, Jr.:

I think it does away with semantic problem, yes sir.

He has another article that’s presently in Gallic form at the University of Virginia, it’s a leading article in the March Law Review, I have been privileged to read it.

Euel A. Screws, Jr.:

It’s an article by Mr. Tom Currier entitled Time and Changes in Judge-Made Law.

This article should come out, the Law Review should come out in about three weeks.

And he treats the whole scope of retroactive versus prospective application in civil cases, in tort contract and criminal cases.

And he comes to the same conclusion that in this, in Mapp versus Ohio, the fact is the relevant present day fact is command retroactive application, that the quality of treatment of prisoners far overrides any reliance that the State of Louisiana may have placed on Wolf and this is a very excellent article and I hope —

Tom C. Clark:

Suppose some persons who had been convicted, what he claims to be unreasonable search and seizure brought a civil suit against the option.

They say he was convicted prior to the time of Mapp at the time when Wolf was in the force.

What do you think would be the merit to that case?

Euel A. Screws, Jr.:

Justice Clark, I would think that the law officials would have a good defense on the fact that he had a right to rely at that time on the person.

Tom C. Clark:

Then it wouldn’t be retroactive in support of that case.

Euel A. Screws, Jr.:

I don’t think it would, I have missed a —

Tom C. Clark:

How do you distinguish that from the other?

Euel A. Screws, Jr.:

Mr. Currier would distinguish it, because the fact is, in that situation, we waive prospective application.

You can see that the reliance factor outweighs, there is no equality of treatment problem here.

Tom C. Clark:

What do you think that the fact, that prior to Mapp, a man couldn’t bring a Habeas Corpus because the Warden could come in and say, well I’m depending on Wolf, but after Mapp, he couldn’t depend on Wolf, could he?

Euel A. Screws, Jr.:

No sir.

Tom C. Clark:

It would be an illegal detention, you think after Mapp?

Euel A. Screws, Jr.:

I think that, yes sir I think it would be an illegal, I think the yes —

Justice Bernnan:

If that was so, could he be retried, if you took that approach, could he be retried?

Euel A. Screws, Jr.:

If I am follow Your Honor —

Justice Bernnan:

I’m stating a Professor Meadow’s notion that this is an unconstitutional detention after Mapp, and therefore, the Warden should let him go free.

Euel A. Screws, Jr.:

If there is any way to get —

Justice Bernnan:

That was a constitutional detention initially, after Mapp it is now an unconstitutional detention and I am just asking you, could he be retried again?

Euel A. Screws, Jr.:

I may have to —

Justice Bernnan:

Suppose the state had all the evidence in the world, but he has been in there eight or nine years, statute of limitations have long since gone.

Could you retry him?

Euel A. Screws, Jr.:

I have some doubt whether he could.

The Fifth Circuit put a great deal of emphasis on the disruption at the orderly administration of justice.

Mr. Uviller and his amicus brief dwells at length on the wholesale release of all these prisoners.

The first of countless past cases and opening a thousands of past cases for serving under this new right or scrutiny under this new right, we think this is purely speculative.

This Court has passed on this opening of prison gate argument in the Gideon case and I think again it answered it in Mapp.

Euel A. Screws, Jr.:

I would like to point out to the Court that there have only been 23 reported decisions in three-and-a-half years since Mapp.

I don’t know whether this is indicative of the wholesale release of the number, but I doubt that many prisoners are waiting filing their Habeas Corpus petitions on this Court to rule in Linkletter.

We think that the orderly administration of justice in fact it must yield to the important fact of judicial integrity as advanced by this Court in Mapp in that the equality of treatment of prisoners is — cannot better serve for — judicial integrity cannot be better served than the equality of this.

Justice Bernnan:

Yeah, but that argument I suppose under Wolf no absence of judicial integrity on part of the state courts relying on it, was there, in admitting the evidence?

I doubt the fact that Mapp would now make future participation perhaps in different case, that changes the fact.

Euel A. Screws, Jr.:

Justice Brennan, as I recall this Court gave a warning several years after the Wolf decision in the Urban versus California that this decision was coming and then later in 1959, it gave another warning in Elkins case.

The reliance of Louisiana on — I don’t think is a very important factor.

Justice Bernnan:

Well, no I’m just going to the argument.

You say that this is involved here as you thought there was in Elkins, an element of judicial integrity, the participation of the Courts in what’s an unconstitutional act in essence I suppose is what’s involved in the use of evidence which secured in violation of the Fourth Amendment and yet as long as Wolf was on the books can the state courts be suspect for admitting that evidence when Wolf said that they might —

Euel A. Screws, Jr.:

The state —

Justice Bernnan:

Where they in any way partners in any unconstitutional act in using that evidence actually?

Euel A. Screws, Jr.:

That the use of evidence was with knowledge that it was unconstitutional and this removes some dignity in the state’s position.

Justice Bernnan:

I know, but this Court had said in Wolf that was perfectly permissible and that conviction based upon the use of that evidence was not unconstitutional.

Euel A. Screws, Jr.:

Well I submit that a fair reading of the Wolf and decisions following Wolf gave the states ample time to move and this was the red flag that was waved several times and Louisiana never moved.

Justice Bernnan:

What year what that about, 1950?

Euel A. Screws, Jr.:

1959.

Justice Bernnan:

1959, well what about in 1949?

Euel A. Screws, Jr.:

No Irvine was in 1954, I’m sorry.

Justice Bernnan:

And what about between 1949 and 1954, that’s five years?

When this forecast of what was coming up.

Euel A. Screws, Jr.:

Right sir.

Tom C. Clark:

Because I just — in Irvine I really can’t understand.

I mean [Inaudible], all I said was if I could by, I wouldn’t know where to look.

I didn’t think it was any bigger than the Court, as a matter of fact, that’s a two-edged sword looks like to me [Inaudible]

Euel A. Screws, Jr.:

Perhaps it is.

Tom C. Clark:

Yes it would.

They depended on all these years from 1949 to 1961 and the Court is [Inaudible] let these people out.

It appears to me also in Mapp [Inaudible]

Euel A. Screws, Jr.:

Yes sir that observation has been made.

Now two small, not small, but two other points I wish to make briefly is that if this Court should hold Mapp to be held prospectively, we think that decision would not be right.

Euel A. Screws, Jr.:

I think the Linkletter case should be reversed because his, seizures in his case were after the seizures in the Mapp case.

He has some factors that interrelate with Mapp.

The Louisiana Supreme Court had been a little more tardy in its judicial business —

Justice Bernnan:

You mean, after the Mapp seizures, but before the Mapp decision?

Euel A. Screws, Jr.:

Yes sir.

Justice Bernnan:

Intervening the Mapp seizure and the Mapp decision?

Euel A. Screws, Jr.:

Yes sir and then in his case the accident time was the deciding factor and that he would be entitled to habeas corpus relief under a prospective holding since I think the prospective holding you like to cut off all relevant things.

Justice Bernnan:

I see, is this an argument that if in Mapp as we did, we held that Mapp’s conviction had to be reversed by reason of a seizure which preceded this seizure.

Your point is that we ought not to, no matter what we do about prospective or retroactive, that at least we ought not to deny Mapp to those whose seizures occurred after Mapp seizure, is that it?

Euel A. Screws, Jr.:

Yes sir because and my client’s interest depends upon the workload of the State Court to knock it.

Justice Bernnan:

Your case might have been here first?

Euel A. Screws, Jr.:

Yes sir, no sir.

It could have — the Louisiana Supreme Court could have — if it had been like the Alabama Supreme Court it wouldn’t yet decide the problem, excuse me.

It might have been two or three years late.

Justice Bernnan:

[Inaudible]

Euel A. Screws, Jr.:

Yes sir and decide it.

Tom C. Clark:

In that case the filed petition here — the petition filed in the — after the Louisiana direct —

Euel A. Screws, Jr.:

Yes sir immediately after the Mapp decision, no sir.

Tom C. Clark:

This is a [Inaudible]

Euel A. Screws, Jr.:

Yes sir, there was no —

Tom C. Clark:

Not many petitions or certiorari filed in this case [Inaudible]

Euel A. Screws, Jr.:

No sir.

Tom C. Clark:

Was there any objection made at the trial on the Fourth Amendment?

Euel A. Screws, Jr.:

Justice Clark, the Fifth Circuit opinion says that there was — that there were objections made at that trial.

Frankly, I could not find any specific constitutional objections in the record.

There were objections made to the introduction of the evidence, but they were made primarily on the grounds other than the Fourth Amendment grounds.

Tom C. Clark:

Was there any motion?

Euel A. Screws, Jr.:

No sir.

Tom C. Clark:

Right.

Earl Warren:

Mr. Airheart.

Teddy W. Airhart, Jr.:

Mr. Chief Justice, may it please the Court.

The sole issue before this Court is whether or not a trial which has been final after and later a decision rendered, reversing a prior case upon which was the basis of the proceedings in the state court whether or not that later decision is to be applied retroactively, namely the Mapp case.

The Lower Court held — the Fifth Circuit held that the Mapp case is to be applied only prospectively.

The Court there set forth a rule which is respectfully urged by the State of Louisiana to this Court and that is when determining whether or not a new rule of law which previously overruled a decision on the same point, then we would look to three points in order to determine whether or not the new rule would be retroactive or be given retroactive effect.

The first being to attempt to identify the purpose for the new rule.

The second is to determine the balance of the purpose and to be sure — to be served by the new rule and to decide whether or not this purpose would be promoted.

Prior to the Mapp decision this Court recognized the right to be free from illegal search and seizure.

In the Wolf case this was so held, but at that time, the evidence that was to be introduced by the — in the State Court proceedings, if obtained illegally, would not be excluded.

The Mapp case now recognizes the same rule that was set forth in Weeks which is applicable to the Federal Court in that evidence which is illegally obtained would be excluded in state court proceedings.

The position was set forth by the state in its brief that the purpose for the Mapp decision is to give purpose to the right to be free from an illegal search and seizure.

This right prior to Mapp was to be secured in other type of proceeding.

I assume at the time that civil proceedings could be brought against the officers who then made an illegal search and seizure, but at the time of the Mapp decision, this Court having recognized that right gave impetus to that right of freedom from an illegal search and seizure by barring the use of this evidence in the state court.

The primary contention or one of the primary contentions of the petitioner is that his act or his right to be secure from unlawful search and seizure occurred at a time which was after the illegal search in Mapp.

Justice Bernnan:

Are these state rights, the Mapp search was May 23, 1957 and the illegal search in this case August 24, 1958, what a year-and-an-half later.

Is that right, I see those states in the (Inaudible).

Teddy W. Airhart, Jr.:

Yes sir, those are correct.

I think that it is well to define what the is the state’s position on retro-activity.

The question would have to be determined in order to say whether or not this Court is applying it retroactively.

Any case that is final as of the date that the Mapp case was decided by this Honorable Court, would be one which we would have to say would be retroactive if so applied.

This is a case which is being attacked, a final Court decision which was valid at the time of the trail is being attacked collaterally by writ of habeas corpus.

In as much as the case was totally finalized at the time that Mapp decision was offered by this Court or held by this Court, Linkletter had completely adjudicated his question.

Now the question is what was the purpose for Mapp.

Mapp is to be given prospective application in order that there will be a deterrent against state offices from violating constitutional rights.

The purpose for this deterrent would be in no way served by holding Mapp retroactive.

I am quite sure that all of the courts, I know that the State of Louisiana is following Mapp and therefore the practice which the Court sought to bring to a conclusion or to finalize was in its decision format to hold that there is a deterrent to further stop the officers from this unlawful search and seizure.

If there are no questions, I have relinquished some time to the amicus curiae which I will now turn over to him.

Earl Warren:

Very well, Mr. Airhart.

Mr. Uviller.

H. Richard Uviller:

Mr. Chief Justice may it please the Court.

I appear, I have the honor to appear before this Court representing the National District Attorneys Association as a friend of the Court, because of the overwhelming nationwide concern with the issue which is being litigated here today.

Justice Bernnan:

I hope before you finish, I know from your brief what your position is.

How do you justify applying that position to a search a year-and-a-half after the Mapp search from which [Inaudible]

H. Richard Uviller:

The date of the map search seems to me Mr. Justice Brennan is perhaps the least significant date in the entire transaction.

There was nothing about that date to put of notice any police officers anywhere in the country and presumably police offices in those states which at that time were over half I believe the jurisdictions of the country, police officers in those states proceeded to rely upon wolf and the common law and the laws of their own states, which permitted them to introduce such evidence.

Justice Bernnan:

And that was equally true in August 20, 19 —

H. Richard Uviller:

Precisely.

Justice Bernnan:

That’s your argument, but don’t take any more time.

H. Richard Uviller:

Precisely.

It seems to us a necessary and logical colliery to the theory of a living and viable Constitution, that our trial courts should not be strangled with the immense task of attempting to remake, to rewrite their own history where the truth seeking process of the trial itself was not marred by unfairness.

Judgment should be final and result should be secured.

I don’t think that the price of progress and the events of our understanding of the essential human liberties embraced by the Fourteenth Amendment should be the systematic destruction of the conscientious work of courts applying standards which at the time they were applied were deemed equally reasonable by men of goodwill.

It seems to me that neither Mapp nor it’s progeny were cases dealing with fair trial.

It seems to me that there is an essential distinction between those cases which effect the validity and reliability of the truth seeking process itself.

Those cases involving representation by counsel at trails, such as the Gideon case that Mr. Justice Stewart alluded to.

Those cases involving confessions which are traditionally unreliable evidence and always have deemed unreliable evidence.

And those decisions the focus of which is outside the courtroom, is outside the truth seeking process which is embraced by the concept of due process.

It seems to me that the Mapp case did not create a new right

I think perhaps it is well for us to pause and consider what the right is that we are addressing ourselves to.

Is the right embraced by the Fourth Amendment, the right to retroactivity?

Is it the right to exclusion of evidence and evidence proposition?

I submit that it is not.

I submit that the right announced by the Fourth Amendment is the right which was applied to the states by Wolf against Colorado.

I submit that, that right since Wolf has been binding upon state officers and has been a right of the citizens of the various states.

And that is the right of all citizens, not just defendants on trial, but of all citizens to be free from arbitrary unreasonable encroachments by state offices into their privacy.

Now that is a right which is a non court room right.

That is a right which is violated before the judicial machinery that comes into play, and that is a right it seems to me, the violation of which cannot be remedied by retroactive application of the exclusionary rule.

The exclusionary rule was adopted we submit as an enforcement device to secure this primary constitutional right.

True it is itself a constitutional dimension, but it is not a right derived directly and independently from the Constitution.

It seems to me as I read Wolf and Mapp that is Court after announcing the applicability of the primary right to privacy to the states, allowed the states an opportunity, very practically to develop if they could means for securing this right to the citizens of their jurisdiction.

It was allowed in Wolf that this might be possible to do it.

[Inaudible]

H. Richard Uviller:

New York is a part of the rule as this Court has.

New York is applying the rule I should say of intermediate retroactivity, that is to say the benefits of the Mapp decision belong to all defendants who’s cases are decided in the normal course of appeal with the point preserved by objection or by some other means of raising the issue and presenting it to the trial court.

In other words those tried before Mapp whose appeals are decided after Mapp get the benefit of the rule.

However where the normal appellate process has been exhausted, then a state prisoner who’s only recourse is through the Federal Court is denied that right by the Second Circuit opinion reviewed in the companion case today.

So that I think retroactivity is itself a matter of degree.

It seems to me that retroactivity itself is not at all enough in proposition.

Even in Jackson against Denno there was a modified sort of retroactivity imposed in as much as the judgment itself was allowed to remain assuming that a search for prejudice, post-judgment search for prejudice turned out to be negative.

Justice Bernnan:

Suppose the, suppose the search was of dimension of local, what would New York do with that?

H. Richard Uviller:

I assume that the Rowkin (ph) case stands for a good law in New York State Courts as well although I can’t cite a case for that proposition.

It has always seemed to me that the Rowkin (ph) case was a case of outrage, a case of violation of the Fourteenth Amendment itself without reference to any of the first ten, a case which where the procedure was so brutal and shocking that something had to be done and remedies were provided.

I fail to — I am not able to harmonize that decision with those decisions involved in the Fourth, Fifth, even Fifth or Sixth Amendments.

I think it stands by itself and I assume it would be applied in New York by some sort of commensurate relief.

Tom C. Clark:

What do you with the Fifth, that’s on the law?

H. Richard Uviller:

I beg your pardon sir?

Tom C. Clark:

What do you do with the Fifth Amendment self incrimination [Inaudible]

H. Richard Uviller:

I, yes, well, New York has in its own constitution the equivalent of the Fifth Amendment.

New York has been applying a privilege against self-incrimination which is perhaps even broader than the Federal rights for many, many years.

The effect of Malloy (ph) has not been disturbing in New York.

I think that there is some problem with Fifth Amendment cases as far as exclusion is concerned.

I would distinguish between pure Fourth Amendment cases, where the evidence is a tangible object, something which is not in anyway affected, inherently not affected by the manner of its accusation.

Tom C. Clark:

What I meant was my brother Black [Inaudible] placed reliance on Fifth?

H. Richard Uviller:

I can conceive under the Mapp case itself, Mr Justice Clark, I can easily conceive of many, many situations I think several of which have arisen already since Mapp in which there is an inter-relationship between the Fifth and the Fourth.

I think that inter-relationship occurs where objects are obtained as a result of coercively obtained information, where there is a seizure which in turn precipitates a confession or an inculpatory declaration very frequently investigated techniques of themselves are intermixed.

Justice Bernnan:

Are you making this distinction now between so called evidence and so called contraband or are you making a further distinction between testimonial evidence and tangible?

H. Richard Uviller:

I am making the distinction between testimonial evidence and tangible evidence Justice Brennan.

I have not prepared to argue today though I assume we will some day, the difference between mere evidence and contraband.

Justice Bernnan:

Yeah.

Byron R. White:

What about – but are calling it the difference between testimonial and tangible, how about letters?

H. Richard Uviller:

To me a letter is a tangible object, Justice White I —

Justice Bernnan:

There is a void against you on that.

You have to avoid [Inaudible] with documents —

H. Richard Uviller:

I realize the difficulties to avoid Mr. Justice Brennan, but I think for these purposes and now we have to refer to the object of retroactivity, that’s the limited question before us and it seems to me that in that context there might be very realistic distinction growing between those object which are obtained in a manner which might affect their reliability as a truth seeking piece of evidence relating to the question of guilt.

Now, I suggest that there is no unfairness.

There was no unfairness inherent or otherwise essential or otherwise in a trial at which a defendant was convicted by the use of tangible evidence, which was obtained without warrant.

It’s entirely possible that had that search occurred subsequent to Mapp, there might have been a warrant, there might easily have been evidence to procure the warrant had the police officers knew — known that they could have done so or that they were obliged to do so.

I suggest the evidence itself would have been the same.

Indeed, there are many very civilized jurisdictions in the world where evidence is still admissible if it is prohibitive and bears on the issue of guilt regardless of the manner of its acquisition.

I assume that there are enforcement devices other than exclusion, but I don’t think that the exclusionary rule is itself a new right, a right commensurate with the right to privacy itself.

I think it is —

Hugo L. Black:

You talk about the right of privacy so that’s all the Fourth Amendment prohibit, that’s in my judgment, a great mistake made in [Inaudible] to the Fourth Amendment right, not merely the right to privacy, the other thing decides the right to privacy that are violated on unreasonable search and seizure?

H. Richard Uviller:

Do you suggest Justice Black that one of those is the right to a fair trial?

Hugo L. Black:

I was suggesting that when you just merely say invasion to right to privacy, that’s the word that many judges have used and many commentators have used, that undoubtedly is one of the things prompted with passage of the Fourth Amendment and the adaptation of the rule in the old English cases, but that’s not all the right to privacy.

H. Richard Uviller:

I used it only as a shorthand device, Justice Black.

I am perfectly cognitive of the fact that the amendment is far broader, but I meant to merely make the distinction between the evidentiary aspect and the intrusion aspect.

One occurring outside the trial process itself and the other within the trial.

Indeed, it’s interesting I think that in the companion case, the Angelet case, the court below explicitly found that while finding if there was an unlawful search which we do not concede, but that was the finding below.

They found as well that there was no unfairness whatsoever in the trial on which this evidence was admitted.

It seems to me that in a world of changing violence where time itself has an extremely important affect upon the law and the lives of men that we cannot encumber our trial courts with re-litigation.

Now, one of the practical facts of life is that there is a (Inaudible) and sadly a limited number of court hours at the disposal of the various state jurisdictions.

It is no secret that the court calenders and dockets of every court in the country are crowded with defendants, some of whom are unable to make bail, who are awaiting trial and must await trial until there is a free hour in court.

Counsel, the demands upon counsels time to represent indigent clients are very, very great and the courts to have wait for the counsel to be free to try a case.

These are some of the hard facts of life and I suggest that if the time of the courts is to be consumed with the re-litigation of cases which were decided fairly according to standards which were then controlled, then I suggest that the court will indeed drown under the workload and I do not say and we do not urge here that there will be a jail delivery.

We are not here to raise any specter of criminals going free and walking the streets.

Our concern here is for the administration of justice itself in the courts.

Our concern here is what the proper business of a trial court should be, should it be the current work, the litigation of those who have not yet been tried in their cases or should it be an attempt to rewrite, to remake of the history of the past.

[Inaudible]

H. Richard Uviller:

No Justice Harlan, there are not.

[Inaudible]

H. Richard Uviller:

Judge Nathan Sobel did do some sort of a non-scientific exploration.

H. Richard Uviller:

I might say that if I receive permission of the Court, we are still in the process of developing figures from the State Court of Parole of New York, which maybe able to give us some sort of breakdown as to how many prisoners in jail are on parole, it might be effective.

It won’t be scientific, but it will be probably better that we have been able to submit so far and if we have 10 days, I can certainly submit that in a supplementary brief.

Earl Warren:

You may do that.

H. Richard Uviller:

Thank you.

Potter Stewart:

Mr. Uviller if the data in the appendix to the court’s opinion in (Inaudible) against the United States are more or less accurate, this would have a real impact in only something like about 22 states, is that right?

That is 26 or 28 states, at least 26 apparently have had an exclusionary rule of their own granting that the standards may vary a little bit from the standards which we now say are applicable the federal constitutional standards.

If those data are accurate, would that be right that this would have any real impact and only something less than (Inaudible) states?

H. Richard Uviller:

It depends on partly on how far back we go because the number of the states have recently adopted the exclusionary rule.

Potter Stewart:

I think we found only two or three as it is between the decision in between the – between the Wolf decision and the Elkins decision and there had been a few more between Weeks and Wolf.

H. Richard Uviller:

I don’t know how many states would be effected I –.

Potter Stewart:

I suppose that might be included and what you are going to say?

H. Richard Uviller:

We will certainly be included, I will say this.

I think the Federal Court will be affected and I think that we must bear in mind, that not only those people who are still in jail or on parole and therefore eligible for federal writs would be effected.

This decision of retroactivity here would affect everybody who has already been and will in the future be convicted as a multiple offender.

And as such, it will reach back into the past or beyond the expiration of sentences that are still being served.

I would also say that another deleterious effect will be that those who have received the longest sentences will be those who receive the benefit of retroactivity.

Those who are repeaters will receive the benefit of retroactivity, while those on the present standards for the writ of Habeas Corpus who were less blameworthy will have a worse deal.

I think that there are inevitable inequities in any development of law or any development.

When you live, in what century, in what year you commit the acts you do, cannot fail to have an effect on your life and I dare say that maybe beyond the power of the score of the constitution itself or to correct or such inevitable inequities in the dynamic and developing system of law.

You see, I am in the middle ground [Inaudible]

H. Richard Uviller:

I don’t Justice Harlan, when I — I do not.

That’s just a constitution [Inaudible]

H. Richard Uviller:

I think that once the rid of Habeas Corpus is opened for this purpose that opens the flood gates of litigation whether it’s in the Federal Courts or in the State Courts.

I do not think that the solution of modified retroactivity which was adopted in Jackson against Denno, will be helpful even because again, it’s not the burden of a new trial, it’s not the not the fear that we won’t be able to convict them because we don’t have the evidence anymore.

We are not interested in that.

What we are interested in is the number of courtroom hours that will be consumed to litigate the issue, whether that be on a special hearing of the type that Jackson and Denno advised or whether it be by outright reversal of a conviction and an utterly and completely neutral.

Hugo L. Black:

Can I ask you if you get away from the word retroactivity.

If the issue is this, or is nothing where a man is in jail, detained and you know and can prove that he is there by reason of having been deprived is a constitutional right, should it be turned down?

H. Richard Uviller:

I think Justice Black with all due respect that that is not the issue, because I don’t think that the constitutional right that he was deprived of is why he is in jail.

I think that he is in jail because of the –-

Hugo L. Black:

I assume that it could be that he was?

H. Richard Uviller:

If the primary constitutional right was the right to be tried without the use of this evidence.

Hugo L. Black:

Those are the constitutional rights.

H. Richard Uviller:

If that is the constitutional right, then we have a man who is in jail in deprivation of his constitutional rights.

Hugo L. Black:

Are you saying it because the courts are busy, he should be – they should not turn him out —

H. Richard Uviller:

I think that, that is the factor which should affect the determination of the Court.

They work – (Inaudible).

Hugo L. Black:

[Inaudible] Even if he is unconstitutionally detained?

H. Richard Uviller:

I have a difficulty answering the question Justice Black, only because I have difficulty in conceding the major premise.

It seems to me that if a man was convicted by standards which were entirely fair and proper at the time of his conviction, then because we have changed our notions as to a proper enforcement technique or even if we have changed our notions as to the nature of the constitutional right and its dimensions that we do not say, therefore that he is in jail on an unconstitutional conviction.

It seems to me that it –-

Hugo L. Black:

If we assume there that all that’s been held is, he deprived of a fair trial, what Mapp held was that its unconstitutional under the federal constitution to try him with the evidence they use.

At the time they tried it, it was unconstitutional, whatever may have been the standard that they use or the court had said before that unless you say that what we do is just [Inaudible] the constitution from time to time on the basis of our understanding of how shocking it is, so how uncivilized we think it to be.

H. Richard Uviller:

I think that the shock is a factor in the dimensions of due process yes, but I don’t suggest for a moment that this Court decides the dimensions of the Constitution on such standards.

I do believe that our consciences as civilized people as we progress through history do develop and that our ideas become refined.

Now, I am saying in a way that they change and the change is a fact of life.

I do not think, however, that a change necessarily undoes that which was deemed to be proper and constitutional in a previous age by a court of equally goodwill at that time.

Hugo L. Black:

You are saying in effect it was constitutional then even though we have now held the Constitution was the same one that makes it unconstitutional?

H. Richard Uviller:

Yes sir, I am sir.

In that respect, I would subscribe to the theory of both Courts below the Fifth and Second Circuits and saying that we must be legal realists today, that we must acknowledge the change in our interpretation of our constitution and we cannot accept the proposition that this Court will sit and say that its predecessor was wrong on the interpretation of immutable law.

Hugo L. Black:

Do I understand you to say we can sit and decide that decisions can go wrong.

H. Richard Uviller:

I — you understand me, I think Justice Black to say that this Court should announce what we today and what this Court today feels is right and that that —

Hugo L. Black:

Feels is right or feels constitutional?

H. Richard Uviller:

Feels is just, which I mean the constitutional.

Hugo L. Black:

Which provision of the Constitution do you find that in?

H. Richard Uviller:

I find out in the fourteenth amendment Justice Black and I dare say that this Court has refrained in the past from adopting the theory that any overruling of a previous decision on constitutional grounds necessarily carries back to the beginning of history.

What disturbs is here essentially I think, Justice Black if I may just answer the question at a little bit greater length, I think that what disturbs us here is the fact that prisoners carry with them for years to come the effects of the adjudication upon them and consequently, they live into different years.

If the judgment were final and there were no effects of itself in future years, I don’t think that we would seriously trouble ourselves with whether or not the person who has been convicted ten or twenty years ago should have that conviction overturned as a matter of academic interest.

It is only because of the fact that that’s certain stretches out into a era in which our notions of fairness and due process have changed and developed and improved.

It seems to me that to take this Blackstonian view about the development of law would be a unrealistic and impractical view.

H. Richard Uviller:

I think that the –-

Hugo L. Black:

[Inaudible] our constitution?

H. Richard Uviller:

Beg your pardon sir I —

Hugo L. Black:

Did Blackstone write our Constitution?

H. Richard Uviller:

No sir I –-

Hugo L. Black:

Did he write it in connection with the law where they had no Constitution like ours.

H. Richard Uviller:

But Justice Blackstone in discussing the rule of stare decious did I believe espoused there that the court does not make law, but merely discovers and finds it.

And if that involves informing us as to the errors of judgment of the predecessor courts, then that is simply an announcement of error in interpretation.

I think that the courts below were proper and they rejected it soundly, this theory in favor of that which Justice Cardozo has stood –-

[Inaudible]

H. Richard Uviller:

Actually where –-

No, not actually [Inaudible]

H. Richard Uviller:

I think it might be possible if I understand you correctly Justice Harlan.

I dare say that there would be a very large number of just this speculation on capital cases both those who were presently waiting execution or incarcerated on commutations and also have already been executed.

I had a resident standpoint of the [Inaudible]

H. Richard Uviller:

We will attempt to do it probably –-

[Inaudible]

H. Richard Uviller:

And that I think reflects the point that I was trying to make in answer to Justice Black, that these sentences —

[Inaudible]

H. Richard Uviller:

We will try to do so.

You see it does involve an element of speculation Justice Harlan because we never really do know what particular piece of evidence might have been subject to a exclusion.

It’s easier to say in the contraband cases than it is in cases such as murder cases, particularly – but we will try to do so with supporting documents

Hugo L. Black:

You’ve been a prosecutor a long time that — what is your guess of this, be in the Senate in New York -–

H. Richard Uviller:

Were all felonies, my guess would be that it would be somewhere around five to seven years.

Justice Bernnan:

That’s time served or sentence.

H. Richard Uviller:

No that’s sentence.

We have a one-third off the minimum for good time, which means a five year sentence is what something like three years and a few months of actual sentence.

I should think it would be about that, though of course it varies by –-

Earl Warren:

Mr. Screws.

Euel A. Screws, Jr.:

Just a few comments Your Honor.

Euel A. Screws, Jr.:

Mr. Uviller comes in and says that we are not contending that we are going to open the — this decision retroactively is going to open the jail house doors, but in the same breath he says the courts will drown under the workload on flood of litigation.

I think that this is an attack upon the Mapp decision itself, not upon the retroactive application effect.

I think that this has been asked by this Court in the Gideon case, it’s a speculative argument and is one that there is any legal writers on one side as is there are on the other.

But I will point out this to the Court, it is simply impressive to me that our many states in which the retroactivity of Mapp has not be been decided and there are several circuits.

They are now enough cases to get – and I think that this as valid as Mr. Uviller’s opening the door arguments.

The second point he makes is there is no unfairness in the trail based on illegalacies tangible evidence and again I want to point out to this Court that the trail would never have occurred under the Fourth Amendment.

It was a legal search because the evidence seized could not be seized under the search that was made against Mr. Linkletter, assuming a search warrant.

This guilt or innocence argument, the fairness of the trial argument has been passed by this Court in coerced confession cases.

It has been held as an immaterial consideration in Rogers versus Richmond and Hayes versus Washington case and I could not see Mapp personally as an academic principle, but only as personal constitutional right which this Court has said should be applied to all individuals.

Thank you sir.

Earl Warren:

Mr. Screws.

Before you sit down I understand that Judge Reeves appointed you to represent this man as an indigent, that is true is it not?

Euel A. Screws, Jr.:

Yes.

Earl Warren:

Well I want to take this opportunity to thank you on behalf of this Court for bringing his case here and representing him as faithfully as you have.

We’re always pleased to see lawyers willing to undertake that kind of public service.

So we appreciate your service and gentlemen represent the states in this proceeding we thank you also for your representation.

Thank you.