Opinion — United States v. Peltier

(Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be re-

leased, as is being done in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Lumber

0o., 200 U.8. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

\ UNITED STATES v. PELTIER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 73-2000. Argued February 18, 1975—Decided June 25, 1975

This Court’s decision in Almeida-Sanchez v. United States, 413 U.S.

266, which held that a warrantless automobile search, conducted

about 25 air miles from the Mexican border by Border Patrol

agents acting without probable cause contravened the Fourth

Amendnent, does not apply to ‘Border Patrol searches like the

one in this case, which, though concededly’ unconstitutional under

Almeide-Sanchez standards, was conducted prior to June 21,

1973, tae date of that decision. The policies underlying the ex-

clusionery rule do not require retroactive application of. Almeida-

Sanchez where, as here, the agents were acting in reiiance upon

a federal statute supported by longstanding administrative regu-

lations and continuous judicial approval. Pp. 4-12.

500 F. 2d 985, reversed.

RexuNquist, J., delivered the opinion of the Court, in’ which

Burcer, ©. J., and Wuire, BLackmuN, and PowELL, JJ., joined.

Dovae.as, J., filed a dissenting opinion. BRENNAN, J., filed a dissent-

ing opinion, in which MaksHatt, J., joined, and in Part I of which

Stewart, J., joined.

NOTICE : This opinion is subject to formal revision before publication

in — ae —— of the United States Reports. Readers are re-

uested to notify the Reporter of Decisions, Supreme Court of the

nited States, Washington, D.C. 20543, of ang trpcqrephien! or other

‘ormal errors, in order that corrections may made before the pre-

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 73-2000

United States, Petitioner,)On Writ of Certiorari to the

v. United States Court of Ap-

James Robert Peltier. peals for the N inth Circuit.

[June 25, 1975]

Mk. Justice REHNQuistT delivered the opinion of the

Court.

Four months before this Court’s decision in AlI-

meida-Sanchez v. United States, 413 U. S. 266 (1973),

respondent was stopped in his automobile by a

roving border patrol, and three plastic garbage

bags containing 270 pounds of marihuana were

found in the trunk of his car by Border Patrol

agents. On the basis of this evidence an indictment was

returned charging him with a violation of 21 U. S. C.

§ 841 (a)(1). When respondent’s motion to suppress the

evidence was denied after a hearing, he stipulated in writ-

ing that he “did knowingly and intentionally possess, with

intent to distribute, the marijuana concealed in the 1962

Chevrolet which he was driving on February 28, 1973.”

The District Court found respondent guilty and imposed

sentence. On appeal from that judgment, thé Court of

Appeals for the Ninth Circuit, sitting en banc, reversed

the judgment on the ground that the “rule announced

by the Supreme Court in Almeida-Sanchez v. United

States . . . should be applied to similar cases pending on

appeal on the date the Supreme Court’s decision was an-

+ App. 28. The stipulation provided that it “would not be entered

into had the [respondent’s] motion to suppress in the case been

granted.” Ibid.

2 UNITED STATES v. PELTIER

nounced.” 500 F. 2d 985, 986 (CA9 1974) (footnote

omitted). We granted the Government’s petition for

certiorari. 419 U.S. 993 (1974).

In Almeida-Sanchez, supra, this Court held that a war-

rantless automobile search, conducted approximately

25 air miles from the Mexican border by Border Pa-

trol Agents acting without probable cause, was uncon-

stitutional under the Fourth Amendment.’ In this case

the Government conceded in the Court of Appeals that

the search of respondent’s automobile approximately

70 air miles from the Mexican border and the seizure

of the marihuana were unconstitutional under the stand-

ard announced in Almeida-Sanchez, but it contended that

that standard should not be applied to searches conducted

prior to June 21, 1973, the date of the decision in Almeida-

Sanchez. In an inquiry preliminary to balancing the

interests for and against retroactive application, see Sto-

vall v. Denno, 388 U. S. 293, 297 (1967), the majority of

the Court of Appeals first considered whether this Court

had “articulated a new doctrine” in Almeida-Sanchez, 500

F. 2d, at 987. See, e. g., Chevron Oil Co. v. Huson, 404

U.S. 97, 106 (1971) ; Milton v. Wainwright, 407 U.S. 371,

381-382, n. 2 (1972) (Srewart, J., dissenting). ‘Con-

cluding that Almeida-Sanchez overruled no prior decision

of this Court and instead “reaffirmed well-established

? The Fifth Circuit had reached a contrary conclusion in United

States v. Miller, 492 F. 2d 37 (1974).

3’ The Court acknowledged the “power of the Federal Government

to exclude aliens from the country” and the constitutionality of

“routine inspections and searches of individuals or conveyances seek-

ing to cross our borders.” 413 U. S. 266, 272 (1973). While searches

of this sort could be conducted “not only at the border itself, but at

its functional equivalents as well,” ibid., the Court concluded that the

search at issue in the case “was of a wholly different sort.” Jd., at

273.

\

Soenctee one ame

rarer ee

UNITED STATES v. PELTIER 3

Fourth Amendment standards” that did not “disturb a

long-accepted and relied- — practice, ” 500 F. 2d, at 988,

the Court of Appeals held:

“[TRespondent] is entitled to the benefit of the rule

announced in Almeida-Sanchez, not because of retro-

activity but because of Fourth Amendment princi-

ples never dev iated from by the Supreme Court.”

Id., at’ 989."

The judgment of conviction was reversed, and the case

was remanded to the District Court to suppress the evi-

dence seized from respondent's automobile.

Although expressing some doubt about the applicability

of the old law-new law test as a precondition to retro-

activity analysis, id., at 990, the six dissenters joined issue

with the majority over the proper interpretation of Al-

meida-Sanchez. The dissenters concluded that Almeida-

Sanchez had announced a new constitutional rule because

the decision overruled a consistent line of courts of ap-

peals precedent and disrupted a long accepted and widely

relied upon administrative practice. Border Patrol

Agents had conducted roving searches pursuant to con-

gressional authorization, 8 U. S. C. $1357 (a)(3), and

administrative regulation, 8 CFR § 287.1 (1973), which

had been continuously upheld until this Court’s decision

in Almeida-Sanchez. Since Almeida-Sanchez stated a

new rule, the dissenters concluded that the applicability

of that decision to pre-June 21, 1973, roving patrol ve-

hicle searches should be determined by reference to the

standards summarized in Stovall v. Denno, supra.*. For

* Stovall v. Denno, 388 U.S. 293, 297 (1967) : “The criteria guiding

resolution of the question [of retroactivity] implicate (a) the purpose

to be served by the new standards, (b) the extent of.the reliance by

law enforcement authorities on the old standards, and(c) the effect

on the administration of justice of a retroactive application of the

new standards.”

4 UNITED STATES v. PELTIER

the reasons expressed in Part II of Judge Wallace’s opin-

ion in United States v. Bowen, 500 F. 2d 960, 975-981

(CAQ), cert. granted, 419 U. S. 824 (1974), the dissenters

concluded that Almeida-Sanchez should be accorded

prospective application.

Despite the conceded illegality of the search under the

Almeida-Sanchez standard, the Government contends

that the exclusionary rule should not be mechanically

applied in the case now before us because the policies

underlying the rule do not justify its retroactive appli-

cation to pre-Almeida-Sanchez searches. We agree.

I

Since 1965 this Court has repeatedly struggled with

the question of whether rulings in criminal cases should

be given retroactive effect. In those cases “[w]here the

major purpose of new constitutional doctrine is to over-

come an aspect of the criminal trial that substantially im-

pairs its truth-finding function and so raises serious ques-

tions about the accuracy of guilty verdicts in past trials,

Williams v. United States, 401 U. S. 646, 653 (1971), the:

doctrine has quite often been applied retroactively. It

is indisputable, however, that in every case in which the

Court has addressed the retroactivity problem in the

context of the exclusionary rule, whereby concededly

per Hse is excluded in order to enforce a

constitutional guarantee that does not relate to the integ-

rity of the factfinding process, the Court has concluded

that any such new constitutional principle would be ac-

corded only prospective application.’ Linkletter v.

Walker, 381 U.S. 618 (1965) ; Johnson v. New Jersey, 384

5 By the time Linkletter v. Walker, 381 U. S. 618 (1965), was

decided, Mapp v. Ohio, 367 U. S. 643 (1961), had already been

applied to three cases pending on direct review at the time Mapp

was decided. Ker v. California, 374 U. S. 23 (1963); Fahy v. Con-

necticut, 375 U. S. 85 (1963); Stoner v. California, 376 U. S. 483

UNITED STATES v. PELTIER 5

U. S. 719 (1966); Stovall v. Denno, supra; Fuller v.

' Alaska, 393 U. 8. 80 (1969); Desist v. United States, 394

U. S. 244 (1969); Jenkins v. Delaware, 395 U. S. 213

(1969); Williams v. United States, supra; Hill v. Cali-

fornia, 401 U.S. 797 (1971).

We think that these cases tell us a great deal about the

nature of the exclusionary rule, as well a4 something about

the nature of retroactivity analysis. “Decisions of this

Court applying the exclusionary rule to\unconstitution-

ally seized evidence have referred to “the imperative of

judicial integrity,” £lkins v. United States, 364 U.S. 206,

222 (1960), although the Court has relied principally

upon the deterrent purpose served by the exclusionary

rule. See Mapp v. Ohio, 367 U. S. 643 (1961); Lee v.

Florida, 392 U. S. 378 (1968); see United States v.

Calandra, 414 U. S. 338 (1974); Michigan v. Tucker, 417

U. S. 433 (1974). See also Oaks, Studying the Exclu-

sionary Rule in Search and Seizure, 37 U. Chi. L. Rev.

665, 668-672 (1970).

When it came time to consider whether those decisions

’ would be applied retroactively, however, the Court recog-

nized that the introduction of evidence which had been

seized by law enforcement officials in good-faith compli-:

ance with then-prevailing constitutional norms did not

make the courts “accomplices in the willful disobedience

of a Constitution they are sworn to uphold.” Elkins v.

United States, 364 U. S., at 223. Thus, while the “im-

perative of judicial integrity” played a role in this

Court’s decision to overrule Wolf v. Colorado, 338 U. S.

25 (1949), see Mapp v. Ohio, 367 U.S., at 659, the Mapp -

decision was not applied retroactively: “Rather than be-

(1964). Those cases were decided without discussion of retroactivity

principles, and they have not been interpreted as establishing any

retroactivity limitation of general applicability. See Linkletter,

supra, 381 U. S., at 622; Johnson v. New Jersey, 384 U. 8. 719, 732

(1966); Desist v. United States, 394 U.S. 244, 252-253 (1969).

6 UNITED STATES v. PELTIER

ing abhorrent at the time of seizure in this case, the use

in state trials of illegally seized evidence had been spe-

cifically authorized by this Court in Wolf.” Linkletter v.

Walker, 381 U.S., at 638 (footnote omitted). Similarly,

in Lee v. Florida, supra, this Court overruled Schwartz v.

Texas, 344 U. S. 199 (1952), and held that evidence

seized in violation of § 605 of the Federal Communica-

tions Act of 1934 by state officers could not be introduced

into evidence at state criminal trials:

“(T]he decision we reach today is not based upon

language and doctrinal symmetry alone. — It is but-

tressed as well by the ‘imperative of judicial in-

tegrity.. Elkins v. United States, 364 U.S. 206, 222.

Under our Constitution no court, state or federal,

may serve as an accomplice in the willful transgres-

sion of ‘the Laws of the United States,’ law by which

‘the Judges.in every State [are] bound....’” 392

U.S., at 86 (footnotes omitted).

But when it: came time to consider the retroactivity of

Lee, the Court held that it would not be applied retro-

actively saying:

“Retroactive application of Lee would overturn

every state conviction obtained in good-faith reliance

on Schwartz. Since this result is not required by the

principle upon which Lee was decided, or necessary

to accomplish its purpose, we hold that the exclusion-

ary rule is to be applied only to trials in which the

evidence is sought to be introduced after the date of

our decision in Lee.” Fuller v. Alaska, 393 U. S.,

at 81.

The teaching of these retroactivity cases is that if the

law enforcement officers reasonably believed in good

faith that evidence they had seized was admissible at

trial, the “imperative of judicial integrity” is not offended

by the introduction into evidence of that material even

UNITED STATES v. PELTIER 7

if decisions subsequent to the search or seizure have

broadened the exclusionary rule to encompass evidence

seized in that manner. It would seem to follow a fortiori

from the Linkletter and Fuller holdings that the “im-

perative of judicial integrity” is also 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 or seizure have held

that conduct of the type engaged in by the law enforce-

ment officials is not permitted by the Constitution. For

although the police in Linkletter and Fuller could not

have been expected to foresee the application of the ex-

clusionary rule to state criminal trials, they could reason-

ably have entertained no similar doubts as to th> illegal-

ity of their conduct. See Wolf.v. Colorado, 338 U. S., at

27: § 605 of the Federal Communications Act of 1934, 48

Stat. 1103; cf. Nardone v. United States, 302 U. S. 379

(1937).

This approach to the “imperative of judicial integrity”

does not differ markedly from the analysis the Court has

utilized in determining whether the deterrence rationale

undergirding the exclusionary rule would be furthered by

retroactive application of new constitutional doctrines.

See Linkletter v. Walker, 381 U. S., at 636-637; Fuller v.

Alaska, 393 U. S., at 81; Desist v. United States, 394 U.S.,

at 249-251. In Desist, supra, the Court explicitly recog-

nized the interrelation between retroactivity rulings and

the exclusionary rule: “[W]e simply decline to extend

the court-made exclusionary rvle to cases in which its

deterrent purpose would not be served.” /d., at 254 n. 24.

This focus in the retroactivity cases on the purposes

served by the exclusionary rule is also quite in harmony

with the approach taken generally to the exclusionary

rule. In United States v. Calandra, 414 U. S. 338, 348

(1974), we said that the exclusionary rule “is a judicially

created remedy designed to safeguard Fourth Amendment

8 UNITED STATES v. PELTIER

rights generally through its deterrent effect, rather than a -

personal constitutional right of the party aggrieved.” It

follows that “the application of the rule has ‘been re-

stricted to those areas where its remedial objectives are

thought most efficaciously served.” IJbid. We likewise

observed in Michigan v. Tucker, 417 U. 8. 433, 447

(1974): a

“The deterrent purpose of the exclusionary rule

necessarily assumes that the police have engaged in

willful, or at the very least negligent, conduct which

has deprived the defendant of some right. By refus-

ing to admit evidence gained as a result of such

conduct, the courts hope to instill in those particular

investigating officers,’ or in their future counterparts,

a greater degree of care toward the rights of an ac-

cused. Where the official action was pursued in com-

plete good faith, however, the deterrence rationale

loses much of its force.”

The “reliability and relevancy,” Linkletter, supra, 381

U. S., at 639, of the evidence found in the trunk of re-

spondent’s car is unquestioned. It was sufficiently damn-

ing on the issue of respondent’s guilt or innocence that he

stipulated in writing that he was guilty of .the offense °

charged. Whether or not the exclusionary rule should

_ be applied to the roving border patrol search conducted in —

this case, then, depends on whether considerations of

either judicial integrity or deterrence of Fourth Amend-

ment violations are sufficiently weighty to require that the

evidence obtained by the border patrol in this case be

excluded.

II

" ‘The Border Patrol Agents who stopped and searched

respondent’s automobile were acting pursuant to § 287

(a)(3) of the Immigration and Nationality Act of 1952,

UNITED STATES v. PELTIER ——

66 Stat. 233, 8 U. S. C. § 1357 (a)(3).° That provision,

which carried forward statutory authorization dating

| back to 1946, 60 Stat. 865,’ authorizes appropriately desig-

nated Immigration and Naturalization officers to search

vehicles “within a reasonable distance from any external

boundary of the United States” without a warrant. Pur-

suant to this statutory authorization, regulations were

promulgated fixing the “reasonable distance,” as specified

in § 287 (a)(3), at “100 air miles from any external

boundary of the United States,” 8 CFR § 287.1 (1973), 29

Fed. Reg. 13244 (1964), amending 22 Fed. Reg. 9808

(1957).

Between 1952 and Almeida-Sanchez, roving border

patrol searches under § 287 (a)(3) were upheld repeat-

edlv against constitutional attack.". Dicta in many

6 Title 8 U.S. C. § 1357 (a) (3):

“Any officer or employee of the Service authorized under regula-

tions — by the Attorney General shall have power without

warrapt—

/ ; ; ; ;

‘within a reasonable distance from any external boundary of the

United, States, to board and search for aliens anv vessel within the

territorial waters of the United States and any railway car, aircraft,

con,eyance, or vehicle, and within a distance of twenty-five miles

from any such external boundary to have access to private lands.

but not dwellings, for the purpose of patrolling the border to prevent

the illegal entry of aliens into the United States.”

760 Stat. 865:

“Any employee of the Immigration and Naturalization Service

authorized so to do under regulations prescribed by the Commissioner

of Immigration and Naturalization with the approval of the Attorney

General, shall have power without warrant .. . to board and search

for aliens any vessel within the territorial waters of the United States,

railway car, aircraft, conveyance, or vehicle, within a reasonable

distance from any external boundary of the United States.”

8 United States v. Thompson, 475 F. 2d 1359 (CA5 1973):

Kelly v. United States, 197 F. 2d 162 (CA5 1952): Roa-Rod-

riquez, 410 F. 2d 1206 (CA10 1969); United States v. Miranda, 426

F, 2d 283 (CA9 1970); United States vy. Almeida-Sanchez, 452 F. 2d

10 UNITED STATES v. PELTIER

other Fifth, Ninth,” and Tenth Circuit” decisions

strongly suggested that the statute and the border patrol

policy were acceptable means for policing the immigra-

tion laws. As Mr. Justice Powe t observed in his con-

curring opinion in Almeida-Sanchez:

“Roving automobile searches in border regions

for aliens . . . have been consistently approved by

the judiciary. While the question is one of first

impression in this Court, such searches uniformly

‘have been sustained by the courts of appeals whose

jurisdictions include those areas of the border be-

tween Mexico and the United States where the

problem has been most severe.” «413 U. S., at 278.

It was in reliance upon a validly enacted statute, sup-

ported by longstanding administrative régulations and

459 (CA9 1971), rev'd, 413 U. S. 266 (1973). In support of these

holdings, the courts of appeals have relied upon cases sustaining

searches and seizures at fixed checkpoints maintained within 100 air _

miles of the border. See nn. 9, 10, and 11, infra. Whether fixed

checkpoint searches and seizures are constitutional notwithstanding

our decision in Almeida-Sanchez is before us in United States v. Ortiz,

— F. 2d — (CA9), cert. granted, 419 U. S. 824 (1974); United

States v. Bowen, 500 F. 2d 960 (CAQ), cert. granted, 419 U. S. 824

(1974).

* Haerr v. United States, 240 F. 2d 533 (CA5 1957); Ramiree v.

United States, 263 F. 2d 385 (CA5 1959); United States v. DeLeon,

462 F. 2d 170 (CA5 1972), cert. denied, 414 U. S. 853 (1973).

‘© Fernandez v. United States, 321 F. 2d 283 (CA9 1963); Barba-

Reyes v. United States, 387 F. 2d 91 (CA9 1967); United States v.

Avey, 428 F. 2d 1159 (CA9), ‘cert. denied, 400 U. S. 903 (1970);

Fumagalli v. United States, 429 F. 2d 1011 (CA9 1970); Mienke v.

United States, 452 F. 2d 1076 (CAQ 1971); United States v. Foerster,

455 F. 2d 981 (CAQ9 1972), vacated and remanded; 413 U. S. 915

(1973).

™ United States v. McCormick, 468 F. 2d 68 (CA10 1972), cert.

denied, 410 U. S. 927 (1973); United States v. Anderson, 468 F. 2d

1280 (CA10 1972).

>

UNITED STATES v. PELTIER 11

continuous judicial approval, that border patrol agents

stopped and searched respondent’s automobile. Since

’ the parties acknowledge that Almeida-Sanchez was the

first roving border patrol case to be decided by this

Court, unless we are to hold that parties may not rea-

sonably rely upon any legal pronouncement emanating

from sources other than this Court, we cannot regard as

blameworthy those parties who conform their conduct

to the prevailing statutory or constitutional norm.’* Cf.

Chevron Oil Co. v. Huson, supra; Lemon v. Kurtzman,

411 U.S. 192 (1973). If the purpose of the exclusionary

rule is to deter unlawful police conduct, then evidence

obtained from a search should be suppressed only if it

can be said that the law enforcement officer had knowl-

edge, or may properly be charged with knowledge, that

the search was unconstitutional under the Fourth

Amendment. Admittedly this uniform treatment of

roving border patrol searches by the federal judiciary

was overturned by this Court’s decision in Almeida-

Sanchez. But in light of this history and of what we

perceive to be the purpose of the exclusionary rule, we

conclude that nothing in the Fourth Amendment, or in

the exclusionary rule fashioned to implement it, requires

that the evidence here be suppressed, even if we assume

2 The dissent also suggests that we were wrong to reverse the

judgment affirming Almeida-Sanchez’s conviction if we uphold the

judgment of conviction against Peltier. But where it has been de-

termined, as in a case such as Linkletter, that an earlier holding such

as Mapp is not to be applied retroactively, it has not been ques-

tioned that Mapp was entitled to the benefit of the rule enunciated

in her case. See Stovall vy. Denno, 388 U. S., at 300-301. Nor did

the Government in Almeida-Sanchez urge upon us any considera-

tions of exclusionary rule policy independent of the merits of the

Fourth Amendment question which we decided adversely to the

Government.

»

12 UNITED STATES v. PELTIER

that respondent’s Fourth Amendment rights were vio-

lated by the search of his car."

The judgment of the Court of Appeals is therefore

Reversed.

Mr. Justice Stewart dissents from the opinion and

judgment of the Court for the reasons set out in Part I

of the dissenting opinion of Mr. Justice BRENNAN.

‘3 In its haste to extrapolate today’s decision, the dissent argues

that this decision will both “stop dead in its tracks judicial develop-

ment of Fourth Amendment rights” since “the first duty of a court

will be to deny the accused’s motion to suppress if he cannot cite

a case invalidating a search or seizure on identical facts” and add

“a new layer of factfinding in deciding motions to suppress in the

already heavily burdened federal courts.” Post, pp. 11-12, 17.

Whether today’s decision will reduce the responsibilities of district

courts, as the dissent first suggests, or whether that burden will be

increased, as the dissent also suggests,ait surely will not fulfill both

of these contradictory prophecies. A fact not open to doubt is

that the district courts are presently required, in hearing motions

to suppress evidence, to spend substantial time addressing issues that

do not go to a criminal defendant’s guilt or innocence. In this

case, for example, the transcript of the suppression hearing takes

almost three times as many pages in the appendix as is taken by

the transcript of respondent's trial. App. 5-36.

SUPREME COURT OF THE UNITED STATES

No. 73-2000

United States, Petitioner,}On Writ of Certiorari to the

v. United States Court of Ap-

James Robert Peltier. peals for the Ninth Circuit.

[June 25, 1975]

Mk. JUSTICE Douc.as, dissenting.

I agree with my Brother Brennan that Almeida-

Sanchez was a reaffirmation of traditional Fourth

Amendment principles and that the purposes of the ex-

clusionary rule compel exclusion of the unconstitutionally

seized evidence in this case. I adhere to my view that

& constitutional rule made retroactive in one case must

be applied retroactively in all. See my dissent in Daniel

v. Louisiana, — U.S. — (74-5369, January 27, 1974),

and cases cited. It is largely a matter of chance that

we held the Border Patrol to the command of the

Fourth Amendment in Almeida-Sanchez rather than in

the case of this defendant. Equal justice does not per-

mit a defendant’s fate to depend upon such a fortuity.

The judgment below should be affirmed.

SUPREME COURT OF THE UNITED STATES

No. 73-2000

United States, Petitioner,)On Writ of Certiorari to the

v. United States Court of Ap-

James Robert Peltier. peals for the Ninth Circuit.

[June 25, 1975]

Mk. Justice BRENNAN, with whom Mr. Justice Mar-

SHALL joins, dissenting.

I

Until today the question of the prospective appli-

cation of a decision of this Court was not deemed to

be presented unless the decision “constitute[d] a sharp

break ‘in the line of earlier authority or an avulsive

change which caused the current of the law thereafter to

flow between new banks.” Hanover Shoe, Inc. v. United

Shoe Machinery Corp., 392 U. S. 481, 499 (1968).

Measured by that test, our decision in Almeida-Sanchez

v. United States, 413 U. S. 266 (1973), presents no ques-

tion of prospectivity, and the Court errs in even address-

ing the question. For both the Court opinion and the

concurring opinion of Mr. Justice Powe. in Almeida-

Sanchez plainly applied familiar principles of constitu-

tional adjudication announced 50 years ago in Carroll y.

United States, 267 U.S. 132, 153-154 (1925), and merely

? This requirement has. been variously stated. See, e. g., Desist v.

United States, 394 U. S. 244, 248 (1969) (“a clear break with the

past.”); Milton vy. Wainwright, 407 U. §. 371, 381 n. 2 (1972)

(Stewart, J., dissenting) (“a sharp break in the web of the law”);

Chevron Oil vy. Huson, 404 U. S. 97, 106 (1971) (“[T]he decision

to be applied nonretroactively must establish a new principle of

law, either by overruling clear past precedent on which litigants

may have relied . . . or by deciding an issue of first impression whose

resolution was not clearly foreshadowed .. . ye ©

2 UNITED STATES v. PELTIER

construed 8 U.S. C. § 1357 (a) (3) so as to render it con-

stitutionally consistent with that decision. 413 U.S., at

272; id., at 275 & n. 1 (Powe 1, J., concurring).

The Court states, however, that the border patrol

agents searched Peltier “in reliance upon a validly en-

acted statute, supported by longstanding administrative

regulations and continuous judicial approval....” Ante,

at 10. With all respect, any such reliance would be

misplaced. First, the Court repeats the error of my

Brother Wuite in his dissent in Almeida-Sanchez in find-

ing express congressional and administrative approval

for random roving patrol searches. 413 U. S., at 291,

292-293, 296 (Wuire, J., dissenting). The statute, 8

U. 8. C. § 1357 (a), only authorizes searches of vehicles

“without warrant .. . within a reasonable distance from

any external boundary”; nothing in the statute expressly

dispenses with the necessity for showing probable cause.

The regulation, 8 CFR § 287.1, merely defined “a reason-

able distance” as “within 100 air miles”; it too does not

purport to exempt the Border Patrol from observing the

probable cause requirement.’

?Nor is there anything in the legislative history of § 1357 (a)

which suggests that Congress intended to authorize the Border

Patrol to stop any car in motion within 100 miles of a

border. See H. R. Rep. No. 186, 79th Cong., Ist Sess., 2 (1945);

S. Rep. No. 632, 79th Cong., Ist Sess., 2 (1945). See also United

States v. Almeida-Sanchez, 452 F. 2d 459, 465 (1971) (Browning,

J., dissenting): “The more reasonable interpretation of a statute

of this sort is not that it defines a constitutional standard of reason-

ableness for searches by the government agents to whom it applies,

but rather that it delegates authority to be exercised by those agents

in accordance with constitutional limitations .... The statute

authorizes the officers to conduct such searches—and a search

within the statute’s terms is not illegal as beyond the officer’s stat-

utory authority. But a search within the literal language of the

statute is nonetheless barred if it violates the Fourth Amendment.

See, e. g., Boyd v. United States, 116 U. S. 616 . . . (1886).”

—€

UNITED STATES v. PELTIER 3

Second, the Court states that “[b]etween 1952 and

Almeida-Sanchez, roving border patrol searches under

§ 287 (a)(3) were upheld repeatedly against constitu-

tional attack.” Ante, at 9. But the first decision of

the Court of Appeals for the Ninth Circuit squarely in

point, United States v. Miranda, 426 F. 2d 283, was de-

cided in 1970, and the second, United States v. Almeida-

Sanchez, 452 F. 2d 459, was decided over strong dissent

in 1971 and was pending on certiorari in this Court when

Peltier was searched. 406 U. S. 944 (1972). The first

decision of the Court of Appeals for the Tenth Circuit

approving alien searches by roving patrols without either

probable cause or any suspicious conduct was in 1969.

Roa-Rodriquez v. United States, 410 F. 2d 1206. And

the Court of Appeals for the Fifth Circuit, unlike the

Ninth and Tenth Circuits, always required at least a

“reasonable suspicion” that a car might contain aliens as

the basis of a valid search under 8 U.S. C. § 1357 (a) (3).

United States v. Wright, 476 F. 2d 1027, 1030 and n. 2,

and cases cited (CA5 1973).

In addition, the rule of Miranda, supra, was a patent

anomaly in the Courts of Appeals which sanctioned rov-

ing patrol searches: without a showing even of suspicious

circumstances. The Court of Appeals for the Ninth

Circuit, for example, held consistently that probable

cause must be shown to validate a search for contraband

except in a border search or its functional equivalent, see,

e. g., Cervantes v. United States, 263 F. 2d 800, 803

(CA9 1959) ; Fumagalli v. United States, 429 F. 2d 1011

(CA9 1970),° and this despite a statutory authorization

*In Cervantes, the court said: “The government . . . appears to

accept appellant’s proposition that the reasonableness of a search

made of an automobile on the highway and its driver depends

upon a showing of probable cause. ... That this is the proper

test of the reasonableness of such a search, see Carroll v. United

States, supra, 267 U.S., at pages 155-156... .” 263 F. 2d, at 803 &

4 UNITED STATES v. PELTIER

to search for contraband at least as broad as § 1357 (a).

See 19 U.S. C. § 482.* Moreover, the courts of appeal

require some measure of cause to suspect ‘violation of

law in interrogations and arrests authorized by other

subsections of 8 U. S. C. § 1357 (a). See Au Yi Lau v.

l-@ N: 8. — VU. 8: App. D. C. —, 445 F. 2d 217

(1971); Yam Sang Kwai v. I. & N. S., — U.S. App.

D. C. —, 411 F. 2d 683 (1969).

Given this history, it becomes quite clear why the

Court has found it necessary to discard the “sharp break”

test to reach the prospectivity question in this case. For

the approval by courts of appeals of this law enforcement

practice was short-lived, less than unanimous, irreconcil-

able with other rulings of the same courts, and contrary

to the explicit doctrine of this Court in Carroll, supra, as

reaffirmed in Brinegar v. United States, 338 U. S. 160,

164 (1949), and other cases. If a case in this Court

merely reaffirming longstanding precedent can ever con-

stitute the “avulsive change in the current of the law”

required before we even address the issue of prospectivity,

n. 4. Despite this general language, Cervantes was later summarily

distinguished as applying only to searches for contraband, and not to

searches for aliens. Fumagalli v. United States, 429 F. 2d 1011, 1013

(1970). No attempt was ever made to explain how a search for

aliens could be distinguished under Carroll from a search for ¢ontra-

band. See United States v. Almeida-Sanchez, 452 F. 2d 489. 464

(1971) (Browning, J., diseenting) .

* Title 19 U. S. C. § 482 provides: “Any of the officers or persons

authorized to board or search vessels may stop, search, and examine,

as well without as within their respective districts, any vehicle, . . .

or person, on which or whom he or they shall suspect there is

merchandise which is subject to duty, or shall have been intro-

duced into the United States in any manner contrary to law... .”

“In order to avoid conflict between this statute and the Fourth

Amendment, the Statutory language has been restricted by the

courts to ‘border searches.’” United States v. Weil, 432 F. 24

1320, 1323 (CA9 1970).

UNITED STATES v. PELTIER 5

Hanover Shoe, supra, surely Almeida-Sanchez was not

such a case.*

This case is a good illustration of the dangers of ad-

dressing prospectivity where the “sharp break” standard

is not met. As this Court has recognized, applying a

decision only prospectively,’ can entail inequity to others

* Most cases where the Court has ordained prospective application

of a new rule of criminal procedure have involved decisions which

explicitly overruled a previous decision of this Court. See Link-

letter v. Walker, 381 U. S. 618 (1965), involving the retroactivity

of Mapp v. Ohio, 367 U. S. 643 (1961), which had overruled Wolf v.

Colorado, 338 U. S. 25 ( 1949) ; Williams v. United States, 401 U. S.

646 (1971), involving the retroactivity of Chimel v. California, 395

U. S. 752 (1969), which reversed United States v. Rabinowitz, 339

U. S. 56 (1950), and Harris v. United States, 331 U.S. 145 (1947) ;

Fuller v. Alaska, 393 U. S. 80 (1968) (per curiam), involving the

retroactivity of Lee v. Florida, 392 U.S. 378 (1968), which overruled

Schwartz v. Texas, 344. U. 8. 199 (1952); Desist v. United States,

394 U. S. 244 (1969), involving the retroactivity of Katz v. United

States, 389 U. S. 347 (1967), which specifically rejected Goldman v.

United States, 316 U. S. 129 (1942), and Olmstead v. United States,

277 U. S. 438 (1928); Tehan v. Shott, 382 U. S. 406 (1966), in-

volving the retroactivity of Griffin v. California, 380 U. 8. 609,

(1965), which overruled Twining v. New Jersey, 211 U. 8. 78

(1908); Daniel v. Louisiana, — U. §, — (1975), involving the

retroactivity of Taylor v. Louisiana, — U. 8, — (1975), which

specifically disapproved Hoyt v. Florida, 368 U. S. 57 (1961).

In other instances, the practice recently disapproved had, at least

arguably, been sanctioned previously by this Court. See Johnson v.

New Jersey, 384 U.S. 719, 731 (1966) ; Gosa v. Mayden, 413 U. §.

665, 673 (1973); Adams v. Illinois, 405 U. 8. 278 (1972).

Finally, in another group of cases, the rule applied prospectively

was merely a prophylactic one, designed by this Court to protect

underlying rights already announced and applicable retroactively.

See Halliday v. United States, 394 U. S. 831 (1969) (per curiam) ;

Stovall v. Denno, 388 U. S. 293 (1967); Michigan v. Payne, 412

U. 8. 47 (1973). :

* Of course, we have always given the benefit of a criminal pro-

cedure decision to the defendant in whose case the principle was

announced. See Stovall v. Denno, 388 U. S. 293, 301 (1967).

6 UNITED STATES v. PELTIER

whose cases are here on direct review but are held pend-

ing decision of the case selected for decision. Stovall v.

Denno, 388 U.S. 293, 301 (1067). Although I continue to

believe that denial of the benefits of the decision in such

cases is a tolerable anomaly in cases in which defendants

were accorded all constitutional rights then announced

by this Court, it becomes intolerable, and a travesty of

justice, when the Court does no more than reaffirm and

apply long-established constitutional principles to correct

an aberration created by the Courts of Appeal.

More fundamentally, applying a decision of this Court

prospectively when the decision is not a “sharp break in

the web of the law,” Milton v. Wainwright, supra, 407

U. S., at 381 n. 2 (Stewart, J., dissenting), encourages

in those responsible for law enforcement a parsimonious

approach to enforcement of constitutional rights. “One

need not be a rigid partisan of Blackstone to recognize

that many, though not all, of this Court’s constitutional

decisions are grounded upon fundamental principles

whose content does not change dramatically from year to

year....” Desist v. United States, supra, 394 U.S., at

263 (Harlan, J., dissenting). To apply our opinions pro-

spectively except in “sharp break” cases “add[s] this

Court’s approval to those who honor the Constitution’s

mandate only where acceptable to them or compelled by

the precise and inescapable specifics of a decision of this

Court.... History does not embrace the years needed

for us to hold, millimeter by millimeter, that such and

such a penetration of individual rights is an infringement

of the Constitution’s guarantees. The vitality of our

Constitution depends upon conceptual faithfulness and

not merely decisioned obedience. Certainly, the Court

should not encourage police or other courts to disregard

the plain purport of our decisions and to adopt a let’s-

/

UNITED STATES v, PELTIER 7

wait-until-it’s-decided approach.” Desist, supra, at 277

(Fortas, J., dissenting).’

II ;

Nevertheless, the Court substitutes, at least as respects

the availability of the exclusionary rule in cases involv-

ing searches invalid under the Fourth Amendment, a pre-

presumption against the availability of decisions of this

Court except prospectively. The substitution discards

not only the “sharp break” determinant but also the

equally established principle that prospectivity “is not

automatically determined by the provision of the Con-

stitution on which the dictate is based.... [W]e must

determine retroactivity ‘in each case’ by looking to the

peculiar traits of the specific ‘rule in question.’” John+

son v. New Jersey, 384 U. S. 719, 728 (1966).* Link-

letter v. Walker, 381 U. S. 618 (1965), the seminal ‘pros-

pectivity decision, held only that “the Court may in the

interest of justice make [a] rule prospective . . . where

the exigencies of the situation require such an applica-

tion.” Jd., at 628 (emphasis supplied). Today the

Court stands the Linkletter holding on its head by creat-

ing a class of cases in which nonretroactivity is the rule

and not, as heretofore, the exception.

The Court’s stated reason for this remarkable depar-

ture from settled principles is/“the policies underlying

TI continue to believe that Mr. Justice Harlan and Mr. Justice

Fortas were in error in Desist itself, because Katz v. United States,

389 U. S. 347 (1967), did overrule clear past precedent of this Court.

But I think that the prophecy of horrors by the dissenters in

Desist has, with the Court’s opinion today, come true.

® See also Michigan v. Tucker, 417 U. S. 433, 453 n. 26 (1974) :

“Under the framework of the analysis established in Linkletter,

supra, it would seem indispensable to understand the basis for a

constitutional holding of the Court in order later to determine

whether that holding should be retroactive.”

/

aad UNITED STATES v. PELTIER

the [exclusionary] rule.” Ante, at 4. But the policies

identified by the Court as underlying that rule in Fourth

Amendment, cases are distorted out of all resemblance

to the understanding of purposes that has heretofore

prevailed. I said in my dissent in United States v.

Calandra, 414. U. S. 338 (1974), that that decision left

me “with the uneasy feeling that... a majority of my

colleagues have positioned themselves to . . . abandon

altogether the exclusionary rule in search-and-seizure

cases.” Id., at 365. My uneasiness approaches convic-

tion after today’s treatment of the rule.

III

The Court’s opinion depends upon an entirely new

understanding of the exclusionary rule in Fourth Amend-

ment cases, one which, if the vague contours outlined

today are filled in as I fear they will be, forecasts the

complete demise of the exclusionary rule as fashioned by

this Court in over 61 years of Fourth Amendment juris-

prudence. See Weeks v. United States, 232 U. S. 383

(1914). An analysis of the Court’s unsuccessfully

veiled reformulation demonstrates that its apparent rush

to discard 61 years of constitutional development has

produced a formula, difficult to comprehend and, on any |

understanding of its meaning, impossible to justify.

The Court signals its new approach in these words: “If

the purpose of the exclusionary rule is to deter unlawful

police conduct, then evidence obtained from a search

' should be suppressed only if it ¢an be said that the law

* The exclusionary rule in federal cases has roots that antedate

even Weeks. Twenty-eight years before that decision, in Boyd v.

United States, 116 U. S. 616 (1886), the Court held that the ad-

, Mission into evidence of papers acquired by the Government in vio-

lation of the Fourth Amendment was unconstitutional. Td., at 638.

UNITED STATES v. PELTIER- 9

enforcement officer had knowledge, or may properly be

charged with knowledge, that the search was unconstitu-

tional under the Fourth Amendment.” Ante, at 11.

True, the Court does not state in so many words that

this formulation of the exclusionary rule is to be applied

beyond the present retroactivity context. But the prop-

osition is stated generally and, particularly in view of

the concommitant expansion of prospectivity announced

today, Part I, supra, I have no confidence that the new

formulation is to be confined to putative retroactivity

cases. Rather, I suspect that when a suitable opportu-

nity arises, today’s revision of the exclusionary rule will

be pronounced applicable to all search and seizure cases.

I therefore register mv strong disagreement now.

The new formulation obviously removes the very

foundation of the exclusionary rule as it has been ex-

pressed in countless decisions. Until now the rule in

federal criminal cases decided on direct review has

4°T emphasize that this is a federal criminal case, and that the

exclusionary rule issue comes to us on direct review. Thus, neither

Mapp v. Ohio, 367 U. 8. 643 (1961), applying the Fourth Amend-

ment exclusionary rule to the States, nor Kaufman v, United States,

394 U. 8. 217 (1969), permitting Fourth Amendment exclusionary

rule issues to be raised for the first time in collateral proceedings, is

here involved. While abandonment of both Mapp and Kaufman

has at times been advocated, no Justice has intimated that Weeks

should also ‘be overruled, at least in the absence of suitable and

efficacious substitute remedies. See, on Mapp, Covlidge v. New

Hampshire, 403 U. 8. 443, 490 (1971)° (Harlan, J., concurring) ; id.,

at 492 (Burcer, C. J., dissenting in part and concurring in part): id.

at 493 (Black, J., concurring and dissenting) ; id., at 510 (Statement

of Buackmun, J.): on Kaufman, see Schneckloth v. Bustamonte, 412

U. S. 218, 250 (1973) (Powe.t, J., joined by Tue Cuter Justice

and Rennauist, J., concurring), see also, id., at 249 (Biackmven, J.,

Narcotics Agents, 403 0. 8. 388,.420-421 (1971) (Burcer, C. J., dis-

senting); Schneckloth, supra, at 267-268, n. 25 (Powett, J.

concurring).

10 - UNITED STATES v. PELTIER

been that suppression is necessarily the sanction to be

applied when it is determined that the evidence was in

fact illegally acquired." The revision Unveiled today

suggests that instead of that single inquiry, district

judges may also have to probe the subjective knowledge

of the official who orders the search, and the inferences

from existing law that official should have drawn. The

" Wolf v. Colorado, 338 U. S. 25, 28 (1949), summarized Weeks as

follows: “In Weeks v. United States, supra, this Court held that in

a federal prosecution the Fourth Amendment barred the use of evi-

dence secured through an illegal search and seizure.” (Emphasis sup-

plied.) Elkins v. United States, 364 U. S. 206, 212-213 (1960), again

confirmed the Weeks rule, “evidence which had been seized by

federal officers in violation of the Fourth Amendment [can] not be

used in a federal criminal prosecution,” (emphasis supplied), and

expanded it to cover “evidence obtained by state off ers during a .

search which, if conducted by federal officers, would have violated

the defendant's immunity from unreasonable searches and seizures

under the Fourth Amendment.” Id., at 223 (emphasis supplied) ;

see also id., at 222. Similarly, Ker v. California, 374 U. S. 23, 30

(1963), stated that the exclusionary rule “forbids the Federal Gov-

ernment to convict a man of crime by using testimony or.papers

obtained from him by unreasonable searches and seizures as de-

fined in the Fourth Amendment.” (Emphasis supplied); see also

id.; at 34. Thus, the test whether evidence should be suppressed in

federal court has always been solely whether the Fourth Amendment

prohibition against “unreasonable” searches and seizures was vio-

lated, nothing more and nothing less. See also, e. g., Alderman v.

United States, 394 U.S. 165, 176 (1969); United States v. Calandra,

414 U.S. 338, 347 (1974).

** To be sure, the very vagueness of the intimated reformulation

as articulated today leaves unclear exactly what showing demon-

strates that a law enforcement officer “may properly be charged

with knowledge, that the search was unconstitutional.” In this

case, for example, could the Border Patrol, a national organization,

have been charged with knowledge of the unconstitutionality of an

Almeida-Sanchez type search if the courts of appeals were in clear

conflict on whether probable cause was required ?

ra

UNITED STATES v. PELTIER 11

- decision whether or not to order suppression would then

turn upon whether, based on that expanded inquiry,

suppression would comport with either the deterrence

rationale of the exclusionary rule or “the imperative of

judicial integrity.” **

On this reasoning, Almeida-Sanchez itself was wrongly

decided. For if the Border Patrolmen who searched

Peltier could not have known that they were acting

unconstitutionally, and thus could not have been de-

terred from the search by the possibility of the exclusion

of the evidence from the trial, obviously the Border

Patrolmen who searched Almeida-Sanchez several years

earlier had no reason to be any more precipient. If

application of the exclusionary rule depends upon a

showing that the particular officials who conducted or

authorized a particular search knew or should have

known that they were violating a specific, established

constitutional right, the reversal of Almeida-Sanchez’

conviction was plainly error.

Other defects of today’s new formulation are also

patent. First, this new doctrine could stop dead in

its tracks judicial development of Fourth Amendment

*8It is gratifying that the Court at least verbally restores to

exclusionary rule analysis this consideration, which for me is the

core value served by the exclusionary rule. See Harris v. New

York, 401 U. S. 222, 231-232 (1971) (Brennan, J., dissenting) ;

United States v. Calandra, 414 U. S. 338, 355 (1974) (Brennan,

J., dissenting). But the Court’s treatment of this factor is wholly

unsatisfactory. See United States v. Calandra, supra, 414 U. S.,

at 359-360 (BRENNAN, J., dissenting). I need discuss the ques-

tion no further, however, since the Court merges the “imperative

of judicial integrity” into its deterrence rationale, ante, at 7, and

then ignores the imperative when it applies its new theory to the

facts of this case, see Part II of the Court opinion. Rather, I show

in the text that, on the Court’s own deterrence rationale alone, -

today’s suggested reformulation would be a disaster.

12 UNITED STATES v. PELTIER

rights. For if evidence is to be admitted in criminal

trials in the absence of clear precedent declaring the

search in question unconstitutional, the first duty of a

court will be to deny the accused’s motion to suppress

if he cannot cite a case invalidating a search or seizure

on identical facts.* Yet, even its opponents concede

that the great service of the exclusionary rule has been

its usefulness in forcing judges to enlighten our under-

standing of Fourth Amendment guarantees. “It is...

imperative to have a practical procedure by which

courts can review alleged violations of constitutional

rights and articulate the meaning of those rights. The

advantage of the exclusionary rule—entirely apart from

any direct deterrent effect—is that it provides an oc-

casion for judicial review, and-it gives credibility to the

constitutional guarantees. By demonstrating that so-

ciety will attach serious consequences to the violation

of constitutional rights, the exclusionary rule invokes

and magnifies the moral and educative force of the law.

Over the long term this may integrate some fourth

amendment ideals into the value system or.norms of

behavior of law enforcement agencies.” Oaks, Studying

the Exclusionary Rule in Search and Seizure, 37 U. Chi.

L. Rev. 665, 756 (1970). See also Amsterdam, Per-

* Angelet v. Fay, 381 U. S. 654 (1965), declined to decide

whether Mapp v. Ohio, supra, would bar federal agents from testi-

fying in a state court concerning illegaily obtained evidence, because

Mapp was held in Linkletter, supra, to be nonretroactive. Some-

what similarly, Michigan v. Tucker, 417 U. S. 433 (1974), refused

to decide whether Miranda v. Arizona, 384 U. $¥436 (1966), applies

to exclude the testimony of a witness discovered as a result of a

statement given after incomplete Miranda warnings, because the

interrogation in Tucker occurred before Miranda. See also Michi-

gan v. Payne, 412 U. S. 47, 49-50, n. 3 (1973). Thus, there is

clear precedent for avoiding decision of a constitutional issue raised

by police behavior when in any event the evidence was admissible

in the particular case at bar.

UNITED STATES v. PELTIER 13

spectives on the Fourth Amendment, 58 Minn. L. Rev.

349, 429-430 (1974). While distinguished authority has

suggested that an effective affirmative remedy could

equally serve that function, see Oaks, supra, and Bivens

v. Six Unknown Federal Narcotics Agents, 403 U. S. 388,

420-423 (1971) (Burcer, C. J., dissenting), no equally

effective alternative has yet been devised.

Second, contrary to the Court’s assumption, the exclu-

sionary rule does not depend in its deterrence rationale

on the punishment of individual law enforcement. offi-

cials.* Indeed, one general fallacy in the reasoning of

critics of the exclusionary rule is the belief that the rule

is meant to deter official wrongdoers by punishment or

threat of punishment. It is also the fallacy of the

Court’s attempt today to outline a revision in the exclu-

sionary rule.

Deterrence can operate in several ways. The sim-

15 Critics of the exclusionary rule emphasize that in actual opera-

tion law enforcement officials are rarely reprimanded, discharged,

or otherwise disciplined when evidence is excluded at trial for search

and seizure violations. While this fact, to the extent it is true, may

limit the efficacy of the exclusionary rule, it does not, for the reasons

stated in the text, prove it useless. Suggestions are emerging for

tailoring the exclusionary rule to the adoption and enforcement of

regulations and training procedures concerning searches and seizures

by law enforcement agencies. Amsterdam, Perspectives on the

Fourth Amendment, 48 Minn. L. Rev. 349, 409 et seg. (1974);

Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev.

1027, 1050, et seg. (1974). Today’s approach, rather than advanc-

ing this goal, would diminish the incentive for law enforcement

agencies to train and supervise subordinate officers. See Kaplan,

supra, at 1044. At any rate, to the extent law enforcement agen-

for the courts to adjust the exclusionary rule in order to assure

fairness to individual officials or to promote decisiveness.

14 UNITED STATES v. PELTIER

plest is special or specific deterrence—punishing an in-

dividual so that he will not repeat the same behavior.

But “[t]he exclusionary rule is not aimed at special deter-

rence since it does not impose any direct punishment on a

law enforcement official who has broken the rule... .

The exclusionary rule is aimed at affecting the wider

audience of law enforcement officials and society at large.

It is meant to discourage violations by individuals who

have never experienced any sanction for them.” Oaks,

supra, 37 U. Chi. L. Rev., at 709-710 (1970).*

Thus, the exclusionary rule, focused upon general, not

specific, deterrence, depends not upon threatening a sanc-

tion for lack of compliance but upon removing an induce-

ment to violate Fourth Amendment rights. Elkins v.

United States, 364 U. S. 206, 217, clearly explained that

the exclusionary rule’s “purpose is to deter-—to coinpel

respect for the constitutional guaranty in the only ef-

fectively available way—by removing the incentive to

disregard it.” (Emphasis supplied.) “A criminal court

system functioning without an exclusionary rule . . . is

the equivalent of a government purchasing agent paying

%*See also Amsterdam, supra, 58 Minn. L. Rev., at 431:

“The common focus on the concept of ‘deterrence’ in the debate

whose illegal conduct results in the exclusion,’ and so cannot ‘deter’

him. But no one, to my knowledge, has ever urged that the exclu-

sionary rule is supportable on this principle of ‘deterrence.’ It is

not supposed to ‘deter’ in the fashion of the law of larceny, for

example, by threatening punishment to him who steals a television

¢

UNITED STATES v. PELTIER 15

premium prices for evidence branded with the stamp of

unconstitutionality .... If [the government] receives

the products of [illegai] searches and seizures .. . and

uses them as the means of convicting people whom the

officer conceives is to be his job to get convicted, it is not

merely tolerating but inducing unconstitutional searches

and seizures.” Amsterdam, supra, 58 Minn. L. Rev., at

431-432." (Emphasis supplied.)

We therefore might consider, in this light, what may

have influenced the officials who authorized roving

searches without probable cause under the supposed au-

thority of 8 U. S. C. § 1357 (a)(3) and 8 CFR § 287.1

(1973). The statute is at best ambiguous as to whether

* See also Oaks, supra, 37 U. Chi. L. Rev., at 711:

“*The act is branded as reprehensible by authorized organs of

society,’ Andenaes states, ‘and this official branding of the conduct

may influence attitudes quite apart from the fear of sanctions.’

The existence and imposition of a sanction reinforces the rule and

underlines the importance of observing it. The principle is directly

applicable to the exclusionary rule. The salient defect in the rule

of Wolf v. Colorado was the difficulty of persuading anyone that

the guarantees of the fourth amendment were seriously intended

and important when there was no sanction whatever for their vio-

lation. As a visible expression of social disapproval for the viola-

tion of these guarantees, the exclusionary rule makes the guarantees

of the fourth amendment credible. Its example teaches the impor-

tance attached to observing them.”

**T assume that the Court’s statement that “the purpose of the

exclusionary rule is to deter unlawful police conduct,” ante, at 10,

does not imply that deterrence can work only at the level of the

individual officers on the scene, nor Suggest that on its approach

only the knowledge, real or constructive, of the official conducting

the search is relevant. Fourth Amendment violations become more,

not less, reprehensible when they are the product of government

policy rather than an individual policeman’s errors of judgment.

See Alderman v. United States, 394 U. S. 165, 203 (1969) (Fortas,

J., dissenting).

“(T]he Fourth Amendment was intended to secure the citizen in

person and property against unlawful invasion of the sanctity of

16 UNITED STATES v. PELTIER

probable cause is required, though quite explicit that a

warrant is not.’® The officials could therefore read the

statute in one of two ways. They could read it not to

require probable cause, regard as irrelevant Carroll v.

United States, supra, requiring probable cause though no

warrant before stopping and searching a moving auto-

mobile unless the search is at the border, and command

their subordinates to stop at random any car within 100

miles of the border and search for illegal aliens. Or they

could conclude that because the statute is silent about

probable cause, and because Carroll seems to require it,

they should instruct their subordinates to stop moving

vehicles away from the border only if there is‘some good

reason to believe that they contain illegal aliens. Obvi-

ously, today’s decision iis a wide-open invitation to pur-

sue the former course, because if this Court later decides

' that the officers guessed wrong in a particular case, one

conviction will perhaps be lost, but many will have been

gained, see pp. 6-7, 11, supra. The concept of the ex-

clusionary rule until today, however, was designed to

discourage officials from invariably opting for the choice

that compromises Fourth Amendment rights, even

his home by officers acting under legislative or judicial sanction.

This protection is equally extended to the action of the Government

and officers of the law acting under it... .” Weeks v. United

States, 232 U. S. 383, 394 (1914). (Emphasis supplied.)

Obviously, any rule intended] to prevent Fourth Amendment viola-

tions must operate not only upon individual law enforcement officers

but also upon those who set policy for them and approve their

actions. Otherwise, for example, evidence derived from any

search under a warrant coulld be admissible, because the searching

policeman, having had a warrant approved by the designated

judicial officer, had every reason to believe the warrant valid.

Certainly, the Court can imtend no such result, and would have

lower courts inquire into the frame of mind, actual and constructive,

of all officials whose actions were relevant to the search.

19See p. 2 & n. 2, supra.

_ UNITED STATES v. PELTIER 17

though that rule has not worked perfectly as it did not

in this case. “The efforts of the courts and their officials

to bring the guilty to punishment, praiseworthy as they

are, are not to be aided by the sacrifice of those great

principles established by years of endeavor and suffering

which have resulted in their embodiment in the funda-

mental law of the land.” Weeks, supra, 232 U. S., at

393 (emphasis supplied).

Aside from this most fundamental error, solid practical

reasons militate forcefully in favor of rejection of today’s

suggested road to revision of the exclusionary rule. This

Court has already rejected a case-by-case approach to the

exclusionary rule. After Wolf v. Colorado, 338 U.S. 25

(1949), had held the Fourth Amendment applicable to

the States without also requiring the States to follow

the exclusionary rule of Weeks, Irvine v. California, 347

U.S. 128 (1954), presented the opportunity of compelling

the States to apply Weeks in especially egregious situa-

tions such as Irvine’s. The Court rejected the oppor-

tunity because “a distinction of the kind urged would

leave the rule so indefinite that no state court could know

what it should rule in order to keep its process on solid

constitutional ground.” Jd., at 134. See also id., at 138

(Clark, J., some

Today’s formulation extended to all search and seizure

cases would inevitably introduce the same uncertainty, by

adding a new layer of factfinding in deciding motions to

suppress in the already heavily burdened federal courts.

The district courts would have to determine, and the

appellate courts to review, subjective states of mind of

numerous people, see n. 18, supra, and reasonable objec-

tive extrapolations of existing law, on each of the thou-

sands of suppression motions presented each year.”” Nice

7°In addition, adding “one more factfinding operation, and an

especially difficult one to administer, to those already required of

18 UNITED STATES v. PELTIER

questions will have to be faced, such as whether to ex-

clude evidence obtained in a search which officers be-

lieved to be unconstitutional but which in fact was not,

and whether to exclude evidence obtained in a search in

fact unconstitutional and believed to be unconstitutional,

but which the ordinary, reasonable police officer might

well have believed was constitutional. One criticism of

the present formulation of the exclusionary rule is that

it may deflect the inquiry in a criminal trial from the

guilt of the defendant to the culpability of the police.

The formulation suggested today would vastly exacer-

bate this possibility, heavily burden the lower courts,

and worst of all, erode irretrievably the efficacy of the

exclusion principle." Indeed, “no [federal] court could

know what it should rule in order to keep its processes

on solid constitutional ground.” Because of the super-

ficial and summary way that the Court treats the ques- -

tion the formulation will, I am certain, be unsatisfactory

even to those convinced, as I am not, that the exclusion-

ary rule must be drastically overhauled.”

If a majority. of my colleagues_are determined to dis-

({the] lower judiciary” could add a factor of discretion to the opera-

tion of the exclusionary rule impossible for the appellate courts

effectively to control. Kaplan, supra, 26 Stan. L. Rev., at 1045.

21 Indeed, Congress in recent years has declined to take steps

somewhat similar to those now proposed. See Canon, Is the Exclu-

sionary Rule in Failing Health? Some New Data and a Plea Against

Precipitous Conclusions, 62 Ky. L. J. 681, 694-696 (1974).

22For example, the modification of the exclusionary rule most

discussed recently has been that in the ALI Model Code of Pre-

Arraignment Procedure § 290.2 (2) (Off. Draft No. 1, 1972).

See Bivens, supra, at 424 (Appendix to Opinion of Bunazs, C. J,

dissenting); Canon, supra, 62 Ky. L. J., at 694-696. While the

ALI proposal raises many of the same questions I have outlined

above, it differs substantially from the Court’s proposed approach,

since it takes into account many factors besides “(3) the extent to

which the violation was willful.”

~

UNITED STATES v. PELTIER 19

card the exclusionary rule in Fourth Amendment cases,

they should forthrightly do so, and be done with it.

This business of slow strangulation of the rule, with no

opportunity afforded parties most concerned to be heard,

would be indefensible in any circumstances. But to

attempt covertly the erosion of an important principle

over 61 years in the making as applied in federal courts

clearly demeans the adjudicatory function, and the insti-

tutional integrity of this Court.