Before LUMBARD, Chief Judge, and MEDINA, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.
MEDINA, Circuit Judge (with whom LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, KAUFMAN and HAYS, Circuit Judges, concur):
George Angelet, having exhausted his state remedies, petitioned for federal habeas corpus on the ground that his state court conviction, in 1951, for possession of narcotics with intent to sell, was obtained through admission of evidence allegedly seized in an unreasonable search and seizure prohibited by the Fourth and Fourteenth Amendments. Assuming, arguendo, that the search and seizure was conducted in violation of the Constitution, Judge Palmieri nevertheless denied the petition, as he concluded that the exclusionary rule of Mapp v. Ohio, 1961, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, ought not to be applied retroactively.
After the appeal was heard by a panel consisting of Judges Medina, Waterman and Marshall, the qualified judges of this Court agreed that the appeal should be considered in banc .
We have examined the transcript of the trial of Angelet with some care and find the search and seizure was illegal and an invasion of Angelet's constitutional rights. On December 21, 1950 two detectives attached to the Narcotics Squad of the New York City Police Department entered Angelet's apartment by a door opened by a painter who was just leaving. Angelet's rather mild protest was brushed aside, no warrant was produced, and the detectives, together with an agent of the Federal Bureau of Narcotics and his associate, who were summoned by telephone, completely ransacked the apartment. There is nothing to indicate that the officers sought or obtained permission to enter the apartment or that the detectives announced their presence before entering. The search could not have been incidental to an arrest as no arrest was made until after the search had been concluded, when one of the detectives said: "All right, George, you're under arrest. You better get dressed, and put your clothes on."
It was noon when the search was made, and there was no physical coercion, violence or brutality of any kind. Nevertheless, there was a plain and unwarranted invasion of Angelet's home and everything in the apartment was thoroughly rifled and examined. One of the detectives found in a drawer of the dresser fifty-four cellophane envelopes (introduced at the trial as Exhibit 1), one hundred and six empty capsules (Exhibit 2), a stapling machine (Exhibit 3), a box of staples (Exhibit 4), and a scale (Exhibit 5). The federal agent found under a hat four packages (Exhibits 6, 7, 8 and 9). Three of these packages contained heroin and the other contained eighteen capsules of cocaine.
The search of Angelet's apartment, the subsequent trial and the appeal therefrom all occurred after the decision of the Supreme Court in Wolf v. Colorado, 1949, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782, but before the events which directly led to the Supreme Court decision in Mapp v. Ohio, supra, 1961, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081. Thus, it was already clear, at that time, that the Fourteenth Amendment prohibited unreasonable searches and yet it was also plain that the evidence produced by such a search, under the view then prevailing in the Supreme Court, was admissible in a state court prosecution, if state law so provided.
Perhaps there is no totally satisfying solution to the exceedingly difficult problem of whether the exclusionary rule announced in Mapp v. Ohio should be applied to all criminal trials which preceded that decision. Compare United States ex rel. Linkletter v. Walker, 5 Cir., 1963, 323 F.2d 11, cert. granted, 1964, 84 S. Ct. 1340, Sisk v. Lane, 7 Cir., 1964, 331 F.2d 235, and Gaitan v. United States, 10 Cir., 1963, 317 F.2d 494, with People v. Hurst, 9 Cir., 1963, 325 F.2d 891, and Hall v. Warden, 4 Cir., 1963, 313 F.2d 483, cert. denied, 374 U.S. 809, 83 S. Ct. 1693, 10 L. Ed. 2d 1032. On balance, however, we conclude that neither the purpose of the exclusionary rule nor the sound administration of the criminal law would be advanced by overturning the conviction of Angelet and that no serious philosophical obstacle prevents us from affirming the denial of the writ of habeas corpus.
It is not surprising that there has been discussion of various phases of the situation from which inferences have been drawn concerning the attitude of the Supreme Court on the question of the retroactivity of Mapp v. Ohio at the time the decision was filed. For example, the Court may have doubted its power to make an ex cathedra prediction, and therefore chose not to reach the issue of its power under the Constitution to overrule a prior holding except when necessary to decide an actual case or controversy. See Comment, 1962, 71 Yale L.J. 907, 930-933. It may be that, as the application of the new doctrine to Miss Mapp was retroactive in the sense that the occurrences took place some years before the decision, logic requires the court to apply the doctrine retroactively as to all persons previously convicted by the admission of such evidence. It has been suggested that review of any conviction which had not yet become final at the time of the Mapp decision could have been the vehicle for overruling Wolf, and that, therefore, it would be unfair to deny relief to the defendants in those cases simply because Wolf was overruled at an earlier date. See United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, 19, cert. granted, 1964, 84 S. Ct. 1340; Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 1962, 110 U.Pa.L.Rev. 650, 673-678. Perhaps for this reason, the rule of Mapp v. Ohio has been applied by the Supreme Court on direct review of convictions not yet final at the time Mapp was decided. See Ker v. California, 1963, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726; Fahy v. Connecticut, 1963, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171; Stoner v. California, 1964, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856.
There has been speculation as to the relevancy to our problem of the circumstance that Wolf was overruled in a case involving direct review of a conviction rather than in a collateral post-conviction proceeding. See Bender, supra, 110 U.Pa.L.Rev. 650, 679 n. 92. Compare Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799.
It is even argued that this case presents no real question of retroactivity because Wolf v. Colorado, decided before the search of Angelet's apartment, had already made it clear that the search violated Angelet's constitutional rights and Mapp v. Ohio merely removed a procedural bar to the assertion of those rights.
The discussion thus summarized, and there is much more to the same effect, adds up to more or less reasonable guesswork on the subject of the intention lurking in the minds of the learned justices at the time the opinions in Mapp v. Ohio were filed on June 19, 1961.The plain fact remains that none of the opinions gives any sure indication that the Court entertained at the time of filing any view on the subject of general retroactivity. See United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, 15-16 (and cases and other authorities there cited), cert. granted, 1964, 84 S. Ct. 1340. It is far more reasonable to assume that the Court was fully aware of the difficulty of the question and preferred to decide it only after there had been an interval in which courts and legal scholars might have ample time to weigh the pros and cons. We find nothing to the contrary in the quotations from Mapp in Judge Marshall's dissenting opinion herein, including the reference to footnote 9.
As we have concluded that the question has been held open and that the expression of our views will be welcomed, we have filed this opinion although fully aware of the fact that certiorari has been granted in Linkletter.
The Philosophical Aspect of the Case
There are two arguments supporting the view that we have no alternative other than to give general retroactive effect to the exclusionary rule. The first stems from the Blackstonian theory, recently described by this Court as "the splendid myth of 'discovered law,' 1 Blackstone, Commentaries 70." Durocher v. LaVallee, 2 Cir., 1964, 330 F.2d 303, at page 312.
The argument is advanced, on these premises, that one and only one interpretation of the Fourteenth Amendment is correct for all times and, as the most recent interpretation would be the most authoritative, the rule of Wolf v. Colorado, permitting the admission of unlawfully seized evidence, never was law; whereas the rule of Mapp v. Ohio, requiring the exclusion of such evidence, has always been the law. Accordingly, petitioner would have us conclude that he is entitled to the writ on the ground that, at the time of his trial, the admission of the search and seizure evidence violated the Constitution.
This theory has been repeatedly criticized (see, e.g., Cardozo, The Nature of the Judicial Process (1921); Levy, Realist Jurisprudence and Prospective Overruling, 1960, 109 U.Pa.L.Rev. 1; Comment, Prospective Overruling and Retroactive Application in the Federal Courts, 1962, 71 Yale L.J. 907; see also Snyder, Retrospective Operation of Overruling Decisions, 1940, 35 Ill.L.Rev. 121) and we think the time has come to reject it. See United States ex rel. Linkletter v. Walker, supra, 1963, 323 F.2d 11; Great Northern Railway v. Sunburst Oil & Refining Co., 1932, 287 U.S. 358, 53 S. Ct. 145, 77 L. Ed. 360; Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 60 S. Ct. 317, 84 L. Ed. 329. In any realistic view of the case before us, the law, both state and federal, at the time of the trial of Angelet made admissible the evidence procured by the unreasonable search and seizure. For that reason we cannot construe Angelet's failure to object to the evidence as a waiver.
The other argument is, we are here dealing with a constitutional question, and we have no alternative other than to give the new doctrine the widest possible scope. It is pointed out that where constitutional rights are violated prejudice is presumed*fn1 It is our view, however, that the development of constitutional law calls into play precisely the same operations of the judicial process as does the development of a body of decisional law in any other field. The extent to which the new doctrine is to be applied should depend, in the language of Mr. Justice Cardozo, upon "considerations of convenience, of utility, and of the deepest sentiments of justice." United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, footnote 5, cert. granted 1964, 84 S. Ct. 1340. There is no rule of thumb, nor should there be. It is the burden of this opinion to attempt to demonstrate that, by Mr. Justice Cardozo's test, the Mapp v. Ohio doctrine should not be given general retroactive effect.
As we view the problem, there is now at stake one of the most important principles of constitutional interpretation. It has been the proud boast of the most distinguished of our American jurists that the federal Constitution, and especially the Bill of Rights, including the Fourteenth Amendment, is not a rigid aggregation of fundamental rules but a dynamic and flexible document, to be interpreted from time to time to conform to the social and economic needs of a changing society in a modern world. See, e.g., Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (Mr. Chief Justice Warren); United States v. Classic, 1941, 313 U.S. 299, 315-316, 61 S. Ct. 1031, 85 L. Ed. 1368 (Mr. Justice Stone); Olmstead v. United States, 1928, 277 U.S. 438, 471-479, 48 S. Ct. 564, 72 L. Ed. 944 (Mr. Justice Brandeis dissenting); Gompers v. United States, 1914, 233 U.S. 604, 610, 34 S. Ct. 693, 58 L. Ed. 1115 (Mr. Justice Holmes); Weems v. United States, 1910, 217 U.S. 349, 373-374 (Mr. Justice McKenna); McCulloch v. Maryland, 1819, 17 U.S. 316, 407, 415 (Mr. Chief Justice Marshall); Martin v. Hunter's Lessee, 1816, 14 U.S. 304, 326-327, (Mr. Justice Story). We shall return to this subject later.
We do not doubt the power of the judicial establishment to decide that the doctrine of Mapp v. Ohio is to be given general retroactive effect, or to decide that it is not to be given general retroactive effect. There is no philosophical obstacle to a decision either way. But there must be a rational basis for that decision.
We proceed to come to grips with the heart of the problem as best we may, and all too conscious of the fact that we may have been misled by ...